Disability discrimination claim rejected following withdrawal of secondment offer on safety grounds

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In Judd v Cabinet Office, the EAT found that it was not disability discrimination for the Cabinet Office to have withdrawn an employee’s offer of secondment to protect her safety.

Victoria Judd works for the Department for Transport. She successfully applied for a short-term secondment with the Cabinet Office to Montenegro, where she would work as Strategic Communications Manager.

Ms Judd had been a victim of crime in July 2018, to the detriment of her health and wellbeing. In August 2018, two “significant health episodes” resulted in her attending A&E.

It was necessary for Ms Judd to receive medical clearance for her secondment to commence. An independent contractor called Healix, undertook a risk assessment for Ms Judd’s proposed work in Montenegro, based on the availability and quality of healthcare. On 29 October 2018, Healix advised the Cabinet Office that Ms Judd was deemed “high risk” and, at least for the time being, should not travel to Montenegro.

Occupational Health (OH) subsequently found that Ms Judd was fit to travel and recommended steps that could be taken to protect her. However, unlike Healix, Ms Judd had not given OH full details of her medical history, including her A&E admissions.

Healix received and disagreed with OH’s report, stating that “mitigation is undeliverable in the format recommended”. On the basis of Healix’s advice, the Cabinet Office withdrew the secondment opportunity.

Ms Judd argued that she had suffered disability discrimination. It was accepted that Ms Judd was disabled.

The Employment Tribunal rejected her claim on the basis that withdrawing the secondment offer was a proportionate means of achieving the legitimate aim of protecting the health, safety and well-being of secondees when working abroad.

Ms Judd appealed and the case reached the Employment Appeal Tribunal (EAT). The EAT upheld the Tribunal’s decision and dismissed the appeal.

The EAT held that it had been “plainly open” to the Employment Tribunal to find that “the fact that [Ms Judd] would, by her own admission, remain ‘potentially’ at risk and in danger, justified the respondent refusing to make the adjustment of proceeding with the secondment with safeguards… There was no legal error in its approach”.