The UK Employment Appeal Tribunal (EAT) has handed down an interesting decision today in the context of disability discrimination and the onus upon employers to make reasonable adjustments to reduce the impact of disability.
The high profile employment proceedings were brought by Ms Cordell against her employer, the Foreign and Commonwealth Office, when it declined to fund lip speaker support to counter her deafness on the grounds of cost but offered other allowances for staff which she considered were similarly for the purpose of enabling them to do their job.
This is the first case in which cost has been squarely at the centre of the debate. Audrey Williams, partner and Head of Discrimination at International Law Firm Eversheds LLP comments:
“Today’s decision of the EAT is significant, not only as a demonstration of the courts willingness to adopt a pragmatic approach but as it is the first time the issue of cost has been so prominent in the context of disability discrimination and reasonable adjustments. Discrimination law not only precludes discrimination in employment (and beyond) but, goes further for employees with a disability and imposes a duty on employers to make reasonable adjustments to their practices ,procedures and the working environment to alleviate disadvantage. Whether an employer has breached this duty will depend upon whether the particular adjustment is “reasonable”. Cost has always been acknowledged as a relevant factor but until today it was not clear what emphasis tribunals would be likely to place on it nor the extent to which employer arguments that certain adjustments were simply too expensive would succeed.
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“There was little dispute between the parties in this case as to the duty owed by the employer to consider reasonable adjustments or what the necessary adjustment was. For Ms Cordell to perform her job she requires the support of lip speakers. It was also not disputed that she is a good and able employee. The main issue was the significant cost attached to the continued provision of lip speakers, being in excess of £249,500 per year and some six times Ms Cordell’s salary. Ms Cordell argued that FCO offers potentially large allowances to parents working abroad and that by applying a test of reasonableness to disability related allowance FCO’s approach was discriminatory. However, the employment tribunal and EAT have now both concluded that this cost was too great to be deemed a reasonable” adjustment for the employer to make. It also found that the reason for her treatment was not discriminatory as it did not result from her disability but from the cost of the necessary adjustments.
“Employers will no doubt be comforted by the seeming common sense of today’s decision. The EAT also provided useful indication of the sorts of issues that ought to be considered in the context of reasonable adjustments and costs. For example, employers will need to think about questions such as the size of any budget dedicated to adjustments –though deliberately setting a low budget will not be acceptable. Other factors recommended by the EAT are more surprising and may be difficult to include in practice, such as their suggestion that one might look to what other employers are prepared to spend. How many employers will have access to this information?
“An important issue to emphasise is that this case does not relieve employers of their responsibilities in exploring reasonable adjustments. The EAT were inevitably mindful of the fact that the FCO in this case had made considerable effort to consult with Ms Cordell and to justify its conclusions, something which is particularly relevant for public authority employers going forwards and who are now subject to a specific duty to have regard to the need to eliminate unlawful disability discrimination and to promote equality of opportunity for disabled persons under the Equality Act 2010. Even so, the EAT saw fit to specifically refer to striking a balance and weighing up all factors in the steps employers need to take to justify their decisions and this may give some comfort to all employers that expectations will not be unrealistic.”
