While cost is not decisive in deciding whether an adjustment to assist a disabled person is reasonable, this does not mean that it is not relevant.
The Employment Appeal Tribunal (“EAT”) came to this conclusion in a recent case (Cordell v Foreign and Commonwealth Office (“FCO”))when deciding that there was neither direct disability discrimination, nor a failure to make reasonable adjustments, when the FCO refused to provide a team of 'lipspeakers' to support a deaf employee's proposed role in Kazakhstan.
Ms Cordell (“Ms C”) who is deaf, worked for the FCO in Warsaw 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 in that more remote place. The FCO concluded that even if support could be found, which was uncertain, it would be prohibitively expensive. In its view, Ms C could apply for other roles and would not be prevented from progressing her career.
Ms C claimed that the decision not to appoint her constituted direct discrimination and a failure to make reasonable adjustments. In relation to the direct discrimination she relied on the FCO's policy of providing a continuity of education allowance (CEA), which covered the school fees of the children of employees posted abroad. She argued that there was no material difference between her situation and that of CEA recipients - both require financial support to work abroad.
The Employment Tribunal rejected the direct discrimination claim, pointing out that there was a material difference between Ms C's circumstances and the circumstances in which the CEA was paid - to ignore it would be artificial.
Further, the proposed adjustment (providing a team of lipspeakers) would not be reasonable. Not only were there issues as to whether such a team could practicably be arranged in Kazakhstan, the costs would amount to at least £249,500 a year. This was five times Ms C's salary, nearly the cost of running the entire embassy, and was a large amount of the FCO's disability budget. While the decision would have an impact on the type of postings available to Ms C, the cost of the adjustment was simply unreasonable. C appealed on both grounds.
The EAT rejected the appeal. On direct discrimination, it observed that the reason why C was not appointed was the cost of providing the necessary support, coupled with the uncertainty over whether it would be available. It accepted that that was a reason related to disability, but that it was not the disability itself. This meant the direct discrimination claim failed. Even if the claim were approached on the basis of less favourable treatment, those receiving CEA could not be said to be in the same 'relevant circumstances' as Ms C. The point was highlighted by the fact that Ms C would also qualify for CEA allowances if she had school-age children.
Upholding the tribunal's decision that the requested support was not a reasonable adjustment, the EAT noted that tribunals are required to make a judgment on how much it is reasonable to expect employers to spend based on what the tribunal considers right and just in its capacity as an industrial jury. This may include a number of considerations, such as the size of any budget, what the employer has spent in comparable situations, what other employers are prepared to spend and the policy set out in any applicable collective agreement. However, such considerations, even where they have been identified, can be of no more than suggestive or supportive value - there is no objective measure for assessing one kind of expenditure against another.
The EAT concluded that the Tribunal put the cost into context. While the size of a relevant budget is not decisive, this does not mean it is not relevant. The tribunal was perfectly entitled to take into account the FCO's budget for reasonable adjustments as part of the context. Further, it was also legitimate to consider that the cost would have to be met from existing resources. No one's resources, not even the Government's, are infinite.
The EAT also said that despite the CEA payments made to some staff, which could be up to £175,000, it was unreasonable not to make a commensurate payment on Ms C's behalf. What an employer spends on other objects has only suggestive or indicative value when considering whether the cost of a proposed adjustment is reasonable.
As is so often the case in employment law matters, it will always be necessary to look at all the circumstances before deciding what is reasonable to provide in the shape of adjustments – particularly in terms of expenditure. This case usefully demonstrates that even a big, powerful and broadly speaking well-funded organization like the FCO cannot be expected to spend “what it takes” to accommodate a disabled person. So, a much smaller enterprise with limited resources may be able to rely on this case when faced with the cost of adjustments that are out of proportion to its overall financial picture.
