Weekly Employment Update - 26th October 2011

Welcome to Ashfords' Weekly Employment Update, where each week we consider recent developments in Employment and HR issues. This week, we consider the extent to which cost can make an adjustment unreasonable for the purposes of disability discrimination law.    
 
Employers have a duty to make reasonable adjustments for a job applicant or employee who is, because of their disability, placed at a substantial disadvantage. Whether there is a breach of the duty to make adjustments will depend on whether a particular adjustment is "reasonable". A recent case in the Employment Appeal Tribunal has considered the extent to which cost alone can make a proposed adjustment unreasonable.

The Claimant was employed by the Foreign and Commonwealth Office as a senior diplomat. She is profoundly deaf and was provided with full time lip speaker support. The Claimant accepted a promotion to a post based in Kazakhstan, but her employer withdrew the promotion as the annual cost of the adjustments in the new post would have increased by approximately £100,000 (because of factors such as increased airfares and accommodation costs for the lip speakers).

The Employment Appeal Tribunal ("EAT") upheld the Employment Tribunal's decision and found that the cost was not reasonable, and therefore there was no discrimination by breach of the duty to make reasonable adjustments.

In making its decision, the Tribunal took account of the fact that the annual cost of the proposed adjustment amounted to five times the Claimant's salary, and was more than the employer's entire annual staff cost in Kazakhstan; would absorb a large proportion of the disability budget and would have to be met from the employer's existing resources; and significantly exceeded both the cost of adjustments in any of the employer's other locations and the largest annual payment made under another of the employer's policies (which related to funding the cost of boarding school for employees' children). The EAT's view was that these considerations were entirely legitimate to put the figures into context.

The EAT emphasised that how much it is reasonable to spend  "cannot be a product of nice analysis". Tribunals must make a judgment on the basis of what they consider right and just.  The judgement does however provide useful guidance on factors that can help to see expenditure in context and in proportion, and therefore inform a decision of the level of cost reasonable to expect an employer to incur. These factors include:

• The size of any budget dedicated to reasonable adjustments;
• How much the employer has chosen to spend in comparable situations;
• How much other employers are prepared to spend; and
• Any collective agreement or other indications of what level of expenditure is regarded as appropriate by representative organisations.

Whilst the case gives useful guidance on the extent to which cost alone can make a proposed adjustment unreasonable, it does emphasise that tribunals have wide discretion in this area.  This can lead to uncertainty for employers, and will make Employment Tribunal decisions on this issue difficult to appeal.

Cordell v Foreign & Commonwealth Office UKEAT/0016/11

Ashfords LLP is Authorised and Regulated by the Solicitors Regulation Authority. The information in this note is intended to be general information about English law only and not comprehensive. It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances.