Cordell v Foreign and Commonwealth Office UKEAT/0016/11/SM
This case involved a profoundly deaf employee posted to work in Poland. The employer had provided the employee with lip-speaker support at an annual cost of roughly £146,000. Ms Cordell later accepted a promotion to a new post in Kazakhstan, but the employer retracted the offer on the basis that the annual adjustment cost in the new post would increase to £249,500, which it considered to be unreasonable.
Ms Cordell argued that the employer had failed to make a reasonable adjustment in respect of her promotion to the Kazakhstan post. She referred to the cost of support offered by the employer to employees with large families who were posted abroad and argued that this could equal or exceed the cost of adjustments in her case.
The EAT upheld the Tribunal’s decision that the employer had not failed in its duty to make reasonable adjustments, as the cost in this case made the adjustment unreasonable. While the EAT was sympathetic to the Claimant’s situation, it noted that an employer is not obliged to make adjustments at whatever cost.
The EAT held that the provisions relating to reasonable adjustments require tribunals to make a judgment, ultimately, on the basis of what they consider right and just in their capacity as an industrial jury. It held that a tribunal’s decision can be informed by a variety of considerations, including: the size of any budget dedicated to reasonable adjustments; what the employer has chosen to spend in what might be comparable situations; what other employers are prepared to spend; and any collective agreement or other indication of what level of expenditure is regarded as appropriate by representative organisations.
This is an appeal court decision (which means it is binding on the Employment Tribunals unless overturned by a higher court) dealing directly with the question of the extent to which cost alone can make a proposed adjustment unreasonable for the purposes of disability discrimination law.
It provides useful and binding guidance on the sorts of factors Tribunals should take in to account when considering whether the cost of an adjustment makes it unreasonable. However, the overarching message is that there is no single objective test to determine the value of one kind of expenditure over another, and so this will remain an unpredictable area of litigation.