In Cordell v the Foreign and Commonwealth Office (UKEAT/0016/11), the UK Employment Appeal Tribunal (“EAT”) considered whether an employer’s refusal to provide lip-speaking support to a deaf employee was unreasonable based on cost alone. The EAT provided guidance on how Tribunals might put costs considerations into context when considering reasonable adjustments for disabled employees but, ultimately held that Tribunals will have to make a judgement in each case based on “what they consider right and just.”
What happened in this case?
Mrs Cordell who was employed by the Foreign and Commonwealth Office (“FCO”) in a senior position, was posted to Warsaw. She was profoundly deaf, and was provided with lip-speaking support whilst working. This consisted of a team of individuals who commuted to Warsaw on a fortnightly basis from the UK. Including the costs of airfares and accommodation, the annual cost of this lip-speaking support was around £146,000 per year.
Mrs Cordell was later offered a promotion, based in Kazakhstan, with the same level of lip-speaking support. By this time, the FCO had implemented a policy on reasonable adjustments, setting out the matters which would be taken into consideration and the process to be followed when considering whether proposed adjustments in respect of disabilities were reasonable. Following this process, the FCO considered that the cost of the lip-speaking support in the new role was unreasonable, and so withdrew the offer of promotion.
Mrs Cordell brought claims to the Tribunal that this amounted to disability discrimination under the Disability Discrimination Act 1995 and, in particular, that the FCO had failed in its duty to make reasonable adjustments. She argued in particular that the cost of supporting an employee posted abroad who has a number of children would be similar to the cost of providing lip-speaking support (given the FCO’s policy on paying school fees and airfares for children boarding in the UK).
The Employment Tribunal’s decision
In relation to the issue of reasonable adjustments, the Tribunal found that the cost of providing the support would have been at least £249,500 per year. It found that such cost made the adjustment unreasonable, relying on various factors to support this:
- this annual cost of support was around five times Mrs Cordell’s salary;
- this figure was greater than the annual salary costs of all local embassy staff in Kazakhstan;
- the cost exceeded the previous cost of the support in Warsaw by nearly £100,000, and was around £180,000 more expensive than support would be in London;
- it was a significant proportion of the FCO’s disability budget, and was around £200,000 more costly than the next largest expenditure in that budget;
- the costs of school fees for an employee with even seven children would be a maximum of £175,000 plus travel expenses.
The Employment Appeal Tribunal’s decision
The EAT agreed that the Tribunal had approached the question of cost and reasonableness correctly. The factors considered by the Tribunal were legitimate as they contextualised the relevant costs. The FCO had therefore not failed in its duty to make reasonable adjustments in this case, given the comparatively high cost of the support.
The EAT went on to list other considerations which might be useful when making this contextual analysis, including what costs the employer has approved in comparable situations, what other employers might spend, and whether there is any collective agreement as to what might be appropriate. The EAT recognised the difficult balancing act between the disadvantage suffered by the employee if the adjustments are not made on one hand, and the cost of making such adjustments on the other, but pointed out that there was no objective measure which could be used when assessing such considerations. The EAT ultimately held that, when considering whether the cost of a proposed adjustment will render it reasonable or unreasonable, Tribunals will have to make a judgement call as to what is ‘right and just’ in each case.
What this decision means to employers
In some ways this decision is helpful to employers: there is now guidance from the EAT that cost alone may well be enough to demonstrate that a proposed adjustment is not reasonable. This is useful given that, in most cases in practice, cost will often be one of the main objections to making proposed adjustments.
However, employers might understandably be frustrated that this decision appears to give significant discretion to the Tribunals to do what is ‘right and just’, without much in the way of definitive guidelines. This is certainly true, but if an employer takes care to consider each case for adjustments individually, analysing cost in context (rather than arbitrarily deciding a specific figure is too high), considering all the factors set out by the Tribunal and the EAT in this case, as well as considering any other relevant facts, then the wide discretion of the Tribunals should hopefully work in the employer’s favour.
Whether cost alone can justify indirect discrimination (as opposed to a reasonable adjustments claim) is a matter which has already been considered by the EAT, particularly by Woodcock v North Cumbria Primary Care Trust  (discussed in a previous edition of this blog). Before Woodcock, the prevailing approach was a ‘costs plus’ approach, meaning employers would struggle to rely on cost alone as a justification. Woodcock did not depart from such an approach entirely, but did cast some doubt on it. Employers should bear in mind that this current case of Cordell does not directly affect such reasoning, and so, whilst possibly open to doubt, the ‘costs plus’ approach in relation to justifying indirect discrimination still appears to be relevant. We wait to see how the ‘costs plus’ approach develops (or not), and whether this current case, relating as it does to reasonable adjustments, has any impact on that.