Employers, even governments, have finite resources when it comes to making workplace adjustments for disabled employees. They often face difficult decisions in determining how their budgets should be spent. This recent decision by the Employment Appeal Tribunal leaves it to tribunals to assess the reasonableness of possible adjustments based on what is “right and just” in the circumstances.
Cordell v Foreign and Commonwealth Office concerned a diplomat who is profoundly deaf. She was offered a post in Kazakhstan, subject to the completion of formal procedures. However, because of difficulties, in particular the cost of providing her with English lip-speaker support (which came to around £230,000), the posting could not proceed.
The claimant alleged this amounted to direct disability discrimination and that the Foreign and Commonwealth Office (FCO) had failed in its duty to make reasonable adjustments. In particular, she relied on the assertion that the cost was equivalent to the amount potentially payable to assist staff who had a large number of school-age children.
The claim for direct discrimination failed. The Employment Appeal Tribunal (EAT) found that she had not been less favourably treated on the grounds of her disability. The reason for her treatment was not her deafness, but the cost of the support which would have been required. The EAT did not accept that she could compare herself to FCO employees with children who benefited from assistance with school fees. The relevant circumstances were materially different.
In relation to the duty to make reasonable adjustments the key question was whether the provision of a lip-speaker, given the considerable cost, was reasonable. The EAT concluded that it was not. It stated that there is no “objective measure” for balancing the disadvantage to the employee against the cost of the adjustment. It is ultimately a question for the tribunal based on what it considers “right and just.” This assessment may be informed by a number of sources including (for example) guidance in the relevant Equality Commission Statutory Code of Practice, the degree to which the employee would benefit from the adjustment, and what the employer has spent in comparable situations in the past.
However these considerations have “suggestive or supportive value” only – they are relevant but not determinative. In this case the tribunal had not been wrong to conclude that the cost was too high. Although the EAT regretted that the claimant’s disability might limit her career opportunities it stated that the law did not require an employer to “compensate for that misfortune at whatever cost.”