The vexed question of what constitutes a ‘reasonable adjustment’ and whether cost can be a factor in the equation has long been a problem for employers when dealing with disabled employees and job applicants. The Equality Act 2010 largely replicates the provisions concerning ‘reasonable adjustments’ which were previously contained in the Disability Discrimination Act 1995 (DDA). The problem for employers is that the test of reasonableness is objective and is to be determined by a tribunal. Some guidance is provided in the EHRC Employment Statutory Code of Practice (previously contained in the DDA) which sets out a list of factors to be taken into account. However, case law has proved to be helpful to employers in setting out some of the parameters of what may be considered to be reasonable adjustments.
The EAT has now upheld the tribunal decision in Cordell v Foreign & Commonwealth Office which considered the question of to what extent cost can be a factor in the ‘reasonable adjustments’ equation and has helpfully laid down some further guidelines.
Ms Cordell is profoundly deaf and is employed by the Foreign & Commonwealth Office (FCO). When working in London and Warsaw she was provided by the FCO with the support of professional ‘lipspeakers’. She was a very high performer and was invited to work in Kazakhstan, subject to formal procedures which included an assessment of whether and at what cost arrangements could be made to accommodate her disability. At this stage, the FCO realised that the cost of support would be around £250,000 a year, more than five times Ms Cordell’s salary and more than the entire annual cost of employing local staff at the Kazakhstan embassy. It is fair to say that the FCO must have been faced with an uncomfortable conflict of moral decisions. It referred to its ‘Reasonable Adjustments Policy’ under which ‘costly adjustments’ are subject to a specific procedure for assessing reasonableness. This assessment is only made after the offer of a particular post has been made.
The FCO, having applied the policy, decided that the cost was too great and withdrew Ms Cordell’s job offer, resulting in her bringing claims for direct discrimination, disability related discrimination (now replaced in the Equality Act by indirect discrimination and discrimination arising from a disability) and the failure to make reasonable adjustments. The EAT upheld the tribunal’s decision that there was no direct discrimination. It also agreed that the adjustments were not reasonable by reason of excessive cost. Mrs Justice Slade noted, with sympathy expressed to Ms Cordell, ‘there is no objective measure that can be used to balance what are in truth two completely different kinds of consideration – on the one hand, the disadvantage to the employee if the adjustments are not made and, on the other, the cost of making them. The Act requires tribunals to make a judgment, ultimately, on the basis of what they might consider right and just in their capacity as […] and industrial jury‘. She went on to say ‘that is not that tribunals should simply stick a finger in the air‘. The judgment of what level of cost is reasonable to expect an employer to bear can be informed by a variety of considerations, including
- – the Code of Practice;
- – the degree to which the employee would benefit from the adjustment;
- – the size of any budget dedicated to reasonable adjustments;
- – what the employer has 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.
Such considerations are only suggestive or supportive of a position on cost and there is no objective measure for calibrating the value of one kind of expenditure against another.
As Mrs Justice Slade noted ‘the law does not require it to compensate […] misfortune at whatever cost‘. The tribunal had approached the issue correctly and it had not been improper for it to take into account comparisons with other costs. This is a useful appellate decision for employers as it offers some guidance on what factors to be considered when weighing up the question of the cost of reasonable adjustments. However, since tribunals are given a large amount of discretion in determining what is ‘reasonable’ and that they should do what is ‘right and just’ it is likely that future decisions will be hard to overturn on appeal.