Vanessa James is Partner and Head of Employment at SA Law LLP

In what appears to be an open and blatant act of discrimination, Emirates Airlines recently withdrew a job offer they had made to a British air hostess as their health screening checks revealed the candidate had a history of depression. Making no apparent enquiries as to the impact of the historic depression (as in whether it actually resulted in any time off work) the decision was taken just on the presence of this historic depression to withdraw the offer and no attempt was made to conceal the reason. 

One reason for Emirates Airlines’ cavalier approach surely has something to do with jurisdiction given that their principle place of business is outside the UK and so their employees may not necessarily be covered by UK discrimination laws.  However, having the base overseas does not in its self mean an employer is free from risk of claim under UK legislation because establishing jurisdiction is more about where your employees are employed or based and if that is the UK then discrimination laws would apply.   The issues that will be relevant to identifying the jurisdiction will be to consider where the employee has their headquarters, where their travels begin and end (both strong indicators), where the employee has their home, where the employee is paid and in what currency and whether they are subject to National Insurance.

Therefore, employers not based in the UK need to be cautious when assuming their base is the indicator for jurisdiction as each case is decided on the facts of the individual case.  A further explanatory note issued with the Equality Act as guidance states that  “the Act leaves it to tribunals to determine whether the law applies, depending for example on the connection between the employment relationship and Great Britain".

It is undoubtedly the case that if you withdraw an offer of employment due to health issues that you risk claims under the Equality Act for disability discrimination.  However, for such a claim to succeed (assuming jurisdiction is established) the employee would need to establish that they are disabled under the act.  There are certain parameters that determine whether ill health goes as far as being a disability and while some conditions are clearly a disability (cancer, HIV, physical or motor disabilities) others are more difficult to define.  It will depend on the severity of the condition in terms of its impact on the individual’s ability to perform day to day tasks as well as having a degree of longevity.  Some conditions (such as historic depression) may have been a disability at the time, but do not currently qualify as a disability but the individual is still protected if they are treated less favourably because of that historic disability. 

In considering applications and health it is perhaps more important for HR professionals to consider the context of a history of health issues because many people have health issues but still maintain a complete commitment to their employment (including excellent attendance) and do not let health issues or a disability stand in the way of that.  Perhaps part of the issue with the Emirates Airlines case is the stigma and false perceptions that emanate out of conditions like depression where there have been incidents of exploitation of the condition to justify poor attendance or other shortcomings in performing a role.  This is because symptoms of depression (and stress and anxiety conditions) can be ‘over amplified’ by an employee seeking to justify poor attendance and lack of engagement and those symptoms might be more difficult to challenge than other health conditions (such as cancer, HIV or physical impairments).    

Employers should maintain a more sophisticated approach to addressing historic health issues than simply withdrawing the offer – otherwise they will risk claims of disability discrimination.