Cordell v Foreign and Commonwealth Office UKEAT 2011/0016
Ms Cordell who is deaf worked for the FCO in Warsaw and was supported by professional lipspeakers. 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 FCO concluded that although support could be found, it was prohibitively expensive. Ms Cordell claimed that the decision not to appoint her constituted direct disability discrimination and a failure to make reasonable adjustment. As the FCO offered school fees for children posted abroad there was no material difference between her situation and that of employees in receipt of the continuity of education allowance.
The tribunal rejected her direct discrimination claim pointing out the material differences between her circumstances and the circumstances when the education allowance would be paid. It held the proposed adjustment would not be reasonable. The cost of providing a team of lipspeakers would be nearly £250,000 a year, five times Ms Cordell’s salary and nearly the total cost of running the entire embassy.
She appealed but the EAT rejected her appeal. Her direct discrimination claim failed as it was accepted that the reason she was not appointed was a reason related to a disability not the disability itself. Tribunals are required to make a judgment on how much it is reasonable to expect employers to spend. The tribunal was perfectly entitled to take into account the FCO’s budget when making a judgment on how much it is reasonable to expect employers to do.
Key point: Whilst cost is not decisive in deciding whether an adjustment was reasonable, it is not irrelevant. Further what an employer spends on other projects has only indicative value when considering whether the cost of the proposed adjustment is reasonable.
- Adjustment reasonable where it might succeed
Leeds Teaching NHS Trust v Foster UKEAT/0552/10
Mr Foster was a senior security inspector employed by the hospital. In 2006 following the breakdown of his working relationship with his line manager he went on long term sick leave owing to stress and did not return to work. He was dismissed on health grounds in February 2009. He brought claims for disability discrimination and unfair dismissal. The tribunal found in his favour. If the Trust had made the adjustment of putting him on the redeployment register in January 2008 rather than 6 months later there would have been a good prospect of his returning to work with the appropriate support. In January 2008 his representative thought the Trust had agreed to redeploy him where he would not be under his line manager’s management. However, the Trust would only let him return to a job inside the department not outside. When the redeployment opportunity finally arose in June 2008 he was too ill to take it. By November 2008 he was unfit for work and his doctor could see no likelihood of his situation changing so the Trust terminated his employment.
The Trust appealed to the EAT who upheld the tribunal’s decision. The Trust had breached its duty to make a reasonable adjustment because it had 15,000 employees and there was a good prospect that a post at his level outside the security department would have been available in the first 6 months of 2008. By not putting him on the redeployment register it had breached its duty to make a reasonable adjustment and as that set in train events that led to his dismissal the tribunal had been entitled to hold that the dismissal had been unfair.
Key point: Ultimately the test of the reasonableness of any step an employer may have to take is an objective one and will depend on the circumstances of each case. The burden of proving that there was not a good chance of such a post becoming available during that period fell on the employer who failed to discharge that burden.
- Reasonable Adjustment must help employee return to work
Salford NHS Primary Care Trust v Smith UKEAT/0507/10
The EAT held in this case that it was not reasonable to require an employer to offer a disabled employee a career break or to submit suggestions to her GP as to possible rehabilitative work arrangements.
Mrs Smith was an occupational therapist employed by Salford in a managerial capacity. She was signed off work by her GP in March 2007 and took long term sick leave suffering from fatigue. During her absence her role ceased to exist. The occupation health advisor recommended that she should return to work gradually. She did not wish to return to her former client facing role or go back to her former workplace. Other posts were considered but were rejected and she declined offers of administrative work because she had no IT skills. The Trust invited her to another meeting after she had failed to attend 2 scheduled meetings indicating that the Trust might have to consider employment options including termination.
On receipt of this letter she resigned saying she had lost all confidence in the process and doubted the Trust’s willingness to accept her medical evidence or facilitate her return to work. She brought a claim that the Trust’s had failed to make reasonable adjustments to facilitate an eventual return to work and that she had been constructively dismissed. The tribunal held it was reasonable for Mrs Smith to conclude, based on the Trust’s failure to make reasonable adjustments that trust and confidence and broken down and therefore she was entitled to treat herself as constructively dismissed. As the Trust had put forward no reason for the dismissal, the dismissal was unfair. The Trust appealed and was successful. The EAT considered that the Trust had done everything that it could to try and get her back to work and that it was both standard and reasonable for the Trust to mention the risk of termination in its correspondence. At the time of her decision to resign she was still medically unfit for work of any kind so there was nothing the Trust could have done by way of reasonable adjustment at that time to assist her back to work or to lessen the disadvantage caused by the provision criteria or practice that she would have to perform her full role within contracted hours. It was not a constructive dismissal.
Key point: Steps for getting an employee back to work however reasonable are not necessarily a reasonable adjustment.