Cordell v Foreign and Commonwealth Office UKEAT/0016/11/SM
This case involved a profoundly deaf employee posted to work in
Poland. The employer had provided the employee with lip-speaker
support at an annual cost of roughly £146,000. Ms Cordell
later accepted a promotion to a new post in Kazakhstan, but the
employer retracted the offer on the basis that the annual
adjustment cost in the new post would increase to £249,500,
which it considered to be unreasonable.
Ms Cordell argued that the employer had failed to make a reasonable
adjustment in respect of her promotion to the Kazakhstan post. She
referred to the cost of support offered by the employer to
employees with large families who were posted abroad and argued
that this could equal or exceed the cost of adjustments in her
case.
The EAT upheld the Tribunal's decision that the employer had
not failed in its duty to make reasonable adjustments, as the cost
in this case made the adjustment unreasonable. While the EAT was
sympathetic to the Claimant's situation, it noted that an
employer is not obliged to make adjustments at whatever cost.
The EAT held that the provisions relating to reasonable adjustments
require tribunals to make a judgment, ultimately, on the basis of
what they consider right and just in their capacity as an
industrial jury. It held that a tribunal's decision can be
informed by a variety of considerations, including: the size of any
budget dedicated to reasonable adjustments; what the employer has
chosen to spend in what might be 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.
Implications
This is an appeal court decision (which means it is binding on
the Employment Tribunals unless overturned by a higher court)
dealing directly with the question of the extent to which cost
alone can make a proposed adjustment unreasonable for the purposes
of disability discrimination law.
It provides useful and binding guidance on the sorts of factors
Tribunals should take in to account when considering whether the
cost of an adjustment makes it unreasonable. However, the
overarching message is that there is no single objective test to
determine the value of one kind of expenditure over another, and so
this will remain an unpredictable area of litigation.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.