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13th October 2011

Reasonable Adjustments and Cost – Update

In the recent case of Cordell v Foreign & Commonwealth Office the Employment Appeal Tribunal (EAT) upheld an employment tribunal’s decision that a proposed adjustment for a disabled person was not reasonable because of the cost.

The EAT’s decision confirms the finding of the original hearing which was held before an employment tribunal and found that the Foreign and Commonwealth Office (FCO) did not directly discriminate against a deaf senior diplomat under the Disability Discrimination Act 1995 (which was in force at the time), nor breach its duty to make reasonable adjustments, when it withdrew an offer of a post in Kazakhstan because of the cost of providing English lip speaker support for her.

The employment tribunal had previously found that the cost of the support (about £250,000 a year) was unreasonable.  As such, the cost was more than five times Ms Cordell’s salary and more than the entire annual cost of employing local staff at the Kazakhstan embassy. The EAT acknowledged that there is no objective test by which tribunals can balance competing budgetary considerations, but suggested a number of factors that may help tribunals put the costs figures in context.

The employment tribunal that heard the case at first instance held that there was no direct discrimination directed towards Ms Cordell as the reason for withdrawing the job offer was not her disability but the cost of providing the necessary support to allow her to do her job.

Ms Cordell appealed against the decision and argued that the tribunal’s finding was wrong, because the FCO had a policy of paying employees with children a Continuing Education Allowance (CEA) as of right, subject to an upper limit of £25,000 per child, whereas support for disabled employees was subject to discretion.

However, the EAT did not accept this argument, for two reasons. First, the reason for withdrawing the job offer from Ms Cordell was not her disability, but the cost of the support. Although this was a reason related to the disability, this was not the same as saying that disability itself was the reason. Second, the comparison with the CEA policy ignored the fact that there were material differences, other than disability, between Ms Cordell and a person in receipt of a CEA: namely, the fact that Ms Cordell did not have children. If she had had children, she would have been eligible for a CEA.

The EAT thought that Ms Cordell’s real point as regards the CEA policy was that it was wrong for the FCO not to pay the sums in question to enable her to take up the job, if it was prepared to pay commensurate sums in the case of an employee with a large family. In the EAT’s view, this was a legitimate argument in the context of reasonable adjustments but it did not give rise to a finding of direct discrimination.

The EAT was very sympathetic to Ms Cordell’s situation, but noted that the law does not require the FCO to compensate for her misfortune “at whatever cost”.  The EAT stated that cost is “one of the central considerations in the assessment of reasonableness”, although it must of course be weighed with other factors including the degree of benefit to the employee.

It went on to say that a tribunal’s assessment of what an employer would reasonably be expected to spend can be influenced by a variety of factors including:

  • The size of any budget dedicated to reasonable adjustments.
  • What the employer has chosen to spend in what might be thought to be comparable situations.
  • What other employers are prepared to spend.
  • Any collective agreement or other indication of what level of expenditure is regarded as appropriate by representative organisations.

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