In Owen v Amec Foster Wheeler Energy Limited, O is disabled: he has double below knee amputations and type 2 diabetes; he also suffers from hypertension, kidney disease, ischaemic heart disease and morbid obesity. A client wanted O to be part of a project management team in Dubai. A doctor appointed by the employer’s occupational health department stated that O was able to perform the job, but had an appalling medical history, seemed unwilling to improve his health and would be at a high risk medically whilst in Dubai. The employer informed O that he could not undertake the assignment. The CA agreed with the ET and the EAT that direct discrimination because of disability under S.13 of the Equality Act 2010 had not occurred. S.23(1) requires a comparison of cases in like-for-like circumstances and S.23(2) provides that where disability is concerned the ‘circumstances’ must include each individual’s respective abilities. Here, a hypothetical comparator with the same medical risk would have been treated in exactly the same way even if they did not have O’s particular disability.

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