Employers are often confused by the scope of the duty to make reasonable adjustments for disabled employees. A key question is whether cost alone can make an adjustment unreasonable. This has now been
Employers are often confused by the scope of the duty to make reasonable adjustments for disabled employees. A key question is whether cost alone can make an adjustment unreasonable. This has now been answered in the much publicised case of Cordell v Foreign & Commonwealth Office, where the Employment Appeal Tribunal (EAT) confirmed that the cost of a proposed adjustment (around £250,000) was unreasonable.
The facts of this case will be of particular interest to both public and private employers, especially in the current economic climate. Ms Cordell, who is profoundly deaf, is employed by the Foreign & Commonwealth Office (FCO). When posted abroad to Warsaw, the FCO provided her with the support of "lipspeakers", at an annual cost of around £146,000. When Ms Cordell later accepted the offer of a job inKazakhstan, the FCO applied its Reasonable Adjustment (RA) policy, which subjected adjustments to a specific procedure for assessing reasonableness. The likely annual cost of providing lipspeakers for this role, which was around £250,000, led to the job offer being withdrawn. Ms Cordell claimed that this constituted disability discrimination. She compared the cost of the adjustment with the FCO's contribution towards school fees for children of employees posted abroad.
The Employment Tribunal dismissed Ms Cordell's claims, confirming that the FCO did not directly discriminate against her or breach its duty to make reasonable adjustments. On any objective test, the cost of the adjustments was 'simply unreasonable'. It amounted to five times Ms Cordell's salary; was more than the entire annual cost of employing local staff at the Kazakhstan embassy; accounted for a large amount of the FCO disability budget and exceeded the next largest expenditure on adjustments for an individual by about £200,000 per year. The maximum cost under FCO's policy to contribute towards school fees was around £175,000.
The EAT upheld this decision. It stated that tribunals are required to make a judgment on the basis of what they consider 'right and just' in their capacity as an industrial jury. Relevant considerations relating to reasonableness may include the size of any budget dedicated to reasonable adjustments; what employers have chosen to spend in 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. However, such considerations can only help up to a point. The EAT noted that there remains 'no objective measure for calibrating the value of one kind of expenditure against another'. The EAT also confirmed that what employers are prepared to expend elsewhere (e.g. contributing to school fees) can never be more than suggestive or indicative when it comes to the question of whether it was reasonable to expect them to meet the cost of a given adjustment.
It is worth noting that this case was brought under the former Disability Discrimination Act 1995. Similar principles apply under the Equality Act 2010, but Ms Cordell could also claim that the withdrawal of the job offer was 'discrimination arising from disability'. This could be justified if it was a 'proportionate means of achieving a legitimate aim'. It remains unclear whether cost alone can justify discrimination in these circumstances, but this decision does provide employers with welcome guidance on how cost can make proposed adjustments unreasonable.
The facts of this case will be of particular interest to both public and private employers, especially in the current economic climate. Ms Cordell, who is profoundly deaf, is employed by the Foreign & Commonwealth Office (FCO). When posted abroad to Warsaw, the FCO provided her with the support of "lipspeakers", at an annual cost of around £146,000. When Ms Cordell later accepted the offer of a job inKazakhstan, the FCO applied its Reasonable Adjustment (RA) policy, which subjected adjustments to a specific procedure for assessing reasonableness. The likely annual cost of providing lipspeakers for this role, which was around £250,000, led to the job offer being withdrawn. Ms Cordell claimed that this constituted disability discrimination. She compared the cost of the adjustment with the FCO's contribution towards school fees for children of employees posted abroad.
The Employment Tribunal dismissed Ms Cordell's claims, confirming that the FCO did not directly discriminate against her or breach its duty to make reasonable adjustments. On any objective test, the cost of the adjustments was 'simply unreasonable'. It amounted to five times Ms Cordell's salary; was more than the entire annual cost of employing local staff at the Kazakhstan embassy; accounted for a large amount of the FCO disability budget and exceeded the next largest expenditure on adjustments for an individual by about £200,000 per year. The maximum cost under FCO's policy to contribute towards school fees was around £175,000.
The EAT upheld this decision. It stated that tribunals are required to make a judgment on the basis of what they consider 'right and just' in their capacity as an industrial jury. Relevant considerations relating to reasonableness may include the size of any budget dedicated to reasonable adjustments; what employers have chosen to spend in 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. However, such considerations can only help up to a point. The EAT noted that there remains 'no objective measure for calibrating the value of one kind of expenditure against another'. The EAT also confirmed that what employers are prepared to expend elsewhere (e.g. contributing to school fees) can never be more than suggestive or indicative when it comes to the question of whether it was reasonable to expect them to meet the cost of a given adjustment.
It is worth noting that this case was brought under the former Disability Discrimination Act 1995. Similar principles apply under the Equality Act 2010, but Ms Cordell could also claim that the withdrawal of the job offer was 'discrimination arising from disability'. This could be justified if it was a 'proportionate means of achieving a legitimate aim'. It remains unclear whether cost alone can justify discrimination in these circumstances, but this decision does provide employers with welcome guidance on how cost can make proposed adjustments unreasonable.