Labour & European Law Review Weekly Issue 246 01 December 2011
The law requires employers to make reasonable adjustments for disabled employees in the workplace. In Cordell v Foreign and Commonwealth Office (FCO), the Employment Appeal Tribunal (EAT) said that although the cost of an adjustment was not necessarily decisive as to whether it was reasonable, that did not mean it was not relevant.
Ms Cordell, who was profoundly deaf and required the support of lipspeakers, started work for the FCO in 2001. Initially based in London, she was posted to Warsaw in 2006. She was supported there by professional lipspeakers who commuted on a fortnightly basis from the UK and were accommodated in an embassy flat at an average annual cost of about £146,000.
In 2009 she accepted the offer of a posting to Astana, the capital of Kazakhstan. The FCO decided that, as the cost of providing lipspeaker support and other adjustments over three years would come to just over £1 million, this was not reasonable.
Ms Cordell raised a grievance, arguing that there was little difference between the cost of the adjustments she required and the FCO policy of meeting the school fees of children of employees posted abroad.
Her grievance was not upheld and she claimed direct disability discrimination and a failure to make reasonable adjustments.
The Tribunal disagreed. It said that there was a “material difference” between the circumstances of employees with children and hers, which would be “artificial” to ignore.
In terms of the cost of making the adjustments it said that these were disproportionate as they came to five times her own salary and almost amounted to the total salary costs of all the diplomatic staff at the embassy in Astana. They also exceeded the costs of adjustments in Warsaw by something over £100,000 per year and would account for a large proportion of the FCO disability budget.
It concluded that, on any objective test, the cost of the adjustments was unreasonable.
The EAT agreed with the Tribunal that the reason for withdrawing the offer was the cost of making the necessary adjustments, not Ms Cordell’s disability, which meant that the direct discrimination claim failed. In any event, it said that she could not compare herself with a parent who benefitted from the payment of school fees as their circumstances were materially different to hers.
In terms of making a reasonable adjustment, the EAT said that Tribunals have to make a decision on the basis of what they consider “right and just”. This involved taking the following factors into account:
- the size of the budget for reasonable adjustments
- what the employer has spent in 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.
Although the size of the budget was not decisive, that did not mean it was not relevant. The Tribunal was therefore perfectly entitled to take the size of the FCO’s budget for reasonable adjustments into account when putting the claim into context.
The relative cost of the FCO’s allowances for paying school fees was also relevant in this context, but the EAT took the view that “what an employer is prepared to expend on other objects can never be more than of suggestive or indicative value when it comes to the question whether it was reasonable to expect it to meet the cost of a given adjustment”.
In the circumstances of this case, it was not feasible to expect the Tribunal to undertake an in-depth evaluation of the amount allowed for school fees in order to compare them with the payments available to disabled employees.
The principal barrier to the adjustments being made in this case was clearly cost. The EAT’s analysis of the comparison between the position of employees benefitting from the allowances for payment of school fees and disabled employees requiring adjustments is not particularly robust and the claimant, who is supported by the EHRC, has sought permission to appeal to the Court of Appeal.