Employers can take cost issues into consideration when working out what constitutes a ‘reasonable adjustment’ for disabled employees, an employment appeals tribunal has clarified for the first time.
The ruling was made in the case of Jane Cordell against the Foreign and Commonwealth Office and is the first time that cost has been put at the centre of the disability discrimination debate.
Cordell, who is profoundly deaf and requires the support of a full-time lip speaker, had been employed by the FCO since 2001. Between 2006 and January 2010, she was a First Secretary at the British Embassy in Warsaw, before applying for and being offered the post of Deputy Head of Mission in Kazakhstan, conditional on an assessment of reasonable adjustments in line with the FCO’s policy.
The policy had been changed during her time in Poland to require a special consideration of any adjustments costing more than £10,000. After evaluating the situation, the FCO claimed that providing her with the necessary lip speakers would cost £695,000 for a two-year posting and £990,000 for three years. Cordell attested that it would cost between £100,000 and £200,000.
Because of the expenditure involved and due to the fact that continuity of support could not be guaranteed, the post was subsequently offered to another candidate. Cordell’s took out a disability discrimination claim against her employer, but this has now been dismissed along with a subsequent appeal against the decision.
Audrey Williams, a partner and head of discrimination at law firm Eversheds, said, unlike other cases there was little dispute between the parties in this instance as to what constituted a reasonable adjustment or that Cordell was a good and able employee.
Instead the appeal tribunal concluded that the costs was simply too great to be deemed a reasonable adjustment for her 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,” Williams said.
Working out the cost
There was also a useful indication of other sorts of issues that should be considered in this context. “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,” she added.
But other factors recommended by the Employment Appeal Tribunal were more surprising and could be more difficult to put into practice. These included the suggestion that employers might want to benchmark their expenditure against peers and rivals. The problem in this context, however, was “how many employers will have access to this information?” Williams queried.
The Equality and Human Rights Commission said it was horrified by the ruling, however.
Mike Smith, the body’s commissioner and chair of its Disability Committee, explained: “I am concerned that the outcome of this appeal sends the message that disabled people should not expect to get to the top of their profession if they have significant support needs. I call upon the Government and employers to develop new and creative ways of delivering support for disabled people so that everyone in employment can maximise their contribution to both their employer and society.”
A report written by the Royal National Institute of Blind People, meanwhile, found that if an employer kept on a newly-disabled person in employment, they received a return on investment of at least 2.5 times.
Not only were they able to retain the worker’s skills and experience, but they avoided having to pay out redundancy money or the costs associated with terminating an employment contract. They also saved on recruitment and induction training costs, avoided the cost of dealing with a disability discrimination claim and experienced higher levels of staff loyalty and morale.
Report author and RNIB campaigns officer Philip Connolly said: “Having examined the data, RNIB is calling on employers to support vocational rehabilitation and adopt proactive employment retention policies. Not only will these provide better outcomes for the individual, they will also help businesses save money and keep valuable staff.”
