11/11/2011

Employment e-Brief – what are the costs of reasonable adjustments?

The recent decision from the Employment Appeal Tribunal (“EAT”) in Cordell v Foreign & Commonwealth Office (“FCO”) has addressed the issue of the duty of an employer to make reasonable adjustments for a disabled employee when doing so would amount to significant costs being incurred.

The Law

An employer is under a duty to make reasonable adjustments for a disabled employee under sections 20 and 21 of the Equality Act 2010 (and prior to October 2010, the Disability Discrimination Act 1995).

The Facts

Ms Cordell was an FCO employee who, being profoundly deaf required the support of a team of professional “lip-speakers,” which had been provided to her during her posts in London and Warsaw.

In 2009 she was offered a role in Kazakhstan, subject to an assessment of whether, and at what cost, her disability could be accommodated there. The posting was withdrawn in light of a report estimating the cost of the support of lip-speakers at nearly £300,000 per annum (if indeed the service could be provided at all), which was significantly more than the cost which had been paid in both London and Warsaw. It also amounted to five times Ms Cordell’s salary, nearly the cost of running the entire embassy and was a large amount of the FCO’s disability budget.

Ms Cordell compared her situation with the Continuity of Education Allowance Policy (the “CEA”), which allowed the FCO to pay school fees for the children of employees of up to £25,000 per child per annum. Ms Cordell complained of direct discrimination and a failure to make reasonable adjustments.

The Decision

1. Direct discrimination

The EAT upheld the decision of the Employment Tribunal and held that there was no direct discrimination. The job was withdrawn because of the unreasonable cost, not because of Ms Cordell’s disability.

2. Failure to make reasonable adjustments

The tribunal’s consideration of the cost of lip-speakers in the context of the FCO’s total budget for reasonable adjustments and the total cost of embassy staff was legitimate, and what the FCO was prepared to spend on school fees was relevant but not determinative. The EAT held that there was a material difference between Ms Cordell’s circumstances and the circumstances in which the CEA was paid – to ignore it would be artificial. Ultimately the material circumstances of staff benefiting under the CEA were different. Providing lip-speakers at a cost of nearly £300,000 was not deemed reasonable in the circumstances and accordingly her appeal was not upheld.

Comment

Regular readers will expect us express a view about this case and we intend to! This claimant held a post at a salary of £50,000 a year. She argued (with a straight face) that it would be reasonable for the public purse to fund another £300k just to enable her to do her £50,000 job.

Leaving aside the eloquent legal arguments, the fact that this case even got as far as the EAT is perhaps another part of the explanation of why the UKs finances are in the state they are now. Quite why the court had to wrestle so much with the issue of whether such additional expenditure might ever be reasonable seems rather bizarre.

This is a very fact specific case and it would be prudent to always ask for advice. For more details please contact any member of the employment team.