Disability Discrimination; Reasonable Adjustments and Cost
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10.10.2011
Disability Discrimination; Reasonable Adjustments and Cost In Cordell v Foreign & Commonwealth Office the Employment Appeal Tribunal (“EAT”) upheld a decision of the Employment Tribunal (“ET”) in rejecting a discrimination claim. The claimant was profoundly deaf and was employed by the Foreign and Commonwealth Office (“FCO”). In September 2009 she accepted a promotion to Deputy Head of Mission in the embassy in Kazakhstan and in line with the FCO’s ‘Reasonable Adjustments’ (“RA”) policy (where the cost of adjustments exceeds £10,000), the use of lip speakers was considered, in consultation with the employee. It was concluded that such costs, overall estimated to be around £250,000, were unreasonable and the job offer was subsequently withdrawn. Ms Cordell brought a claim under the Disability Discrimination Act 1995 for a failure to make reasonable adjustments (as well as direct discrimination and disability related discrimination). The claimant contended that the costs were reasonable compared with the FCO’s Continuity of Education Allowance (“CEA”) policy under which £25,000 per child (plus the cost of 3 trips) was paid towards the private education of diplomats’ children. It was argued that for large families the cost of such a policy could equal or exceed the cost of the necessary adjustments. The ET rejected all three elements of the claim. In relation to reasonable adjustments, the tribunal held the cost to be unreasonable, taking into account the following factors: (i) the cost was more than five times the claimant’s annual salary; (ii) the cost was more the entire annual cost of employing local staff at the Kazakh embassy; (iii) the amount exceeded the cost of the adjustments for a previous post to Poland (prior to the RA policy) by over £100,000 a year; (iv) the cost would account for a large percentage of the FCO’s annual disability budget; (v) the next largest expenditure on such adjustments was around £200,000 less than the cost proposed in this case; and (vi) the highest cost under the CEA policy was not likely to exceed £175,000. The appeal was dismissed (as was the appeal against direct discrimination) on the basis of reasonableness and the tribunal’s assessment of what is ‘right and just’, which could be considered against factors such as the size of the budget available for such adjustments, expenditure in comparable situations, what other employers are likely to spend and/or what representative organisations regard as appropriate. This case deals with the issue of the extent to which cost alone can determine the reasonableness of adjustments required under disability discrimination law. The difficulty in making such a judgment was acknowledged, with focus on the need to deal with the issues objectively to achieve what is ‘right and just’. Had this case been brought under the Equality Act 2010 the same issue could have been raised under discrimination arising from disability (section 15) and the tribunal would have had to assess whether withdrawing the offer for cost reasons would have been ‘a proportionate means of achieving a legitimate aim’.
This bulletin is for general guidance purposes only and should not be used for any other purpose.
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