The EAT has decided in Cordell v Foreign and Commonwealth Office 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. The EAT noted that, while cost is not decisive in deciding whether an adjustment was reasonable, this does not mean that it is not relevant – not even the Government’s resources are infinite.
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 there. The FCO concluded that even if support could be found, which was uncertain, it would be prohibitively expensive. In its view, C could apply for other roles and would not be prevented from progressing her career. C claimed that the decision not to appoint her constituted direct discrimination, under S.3A(5) of the Disability Discrimination Act 1995, and a failure to make reasonable adjustments under S.3A(2). She put her case in the context of 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 tribunal rejected the direct discrimination claim. It pointed out that there was a material difference between C’s circumstances and the circumstances in which the CEA was paid – to ignore it would be artificial. Further, the proposed adjustment would not be reasonable. Not only were there issues as to whether a team of lipspeakers could practicably be arranged in Kazakhstan, the costs would amount to at least GBP 249,500 a year. This was five times 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 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 had to fail. 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 C. The point was illustrated by the fact that 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 rejected C’s argument that the tribunal considered immaterial factors – it simply tried to put the cost into context. The EAT noted that its earlier decision in Pulham v London Borough of Barking and Dagenham showed that 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, the fact that the tribunal considered that the cost would have to be met from existing resources was also legitimate. No one’s resources, not even the Government’s, are infinite.
The EAT also rejected the argument that in light of CEA payments made to some staff, which could be up to GBP 175,000, it was unreasonable not to make a commensurate payment on C’s behalf. The tribunal’s decision on this point was not perverse – it had clearly considered this factor. In the EAT’s view, what an employer spends on other objects has only suggestive or indicative value when considering whether the cost of a proposed adjustment is reasonable.