Cordell v Foreign office UKEAT/0016/11/SM

Subjects: Reasonable Adjustments – Cost of Adjustment – Direct Discrimination – Reasonableness

C, who was deaf, was employed by R as First Secretary in Warsaw. This was a senior position and she was provided with a lipspeaker. She came to be redeployed but was refused a new position as R considered that the cost of a lipspeaker was too expensive. The ET held that R was not guilty of direct discrimination and had not failed to make a reasonable adjustment. C appealed.

Facts

C was profoundly deaf. She worked in Warsaw as First Secretary leading the political/military press and communications team. She was provided with a lipspeaker to help her carry out her role and was appraised as “consistently strong” and very able. In 2009 she was invited by the ambassador designate in Kazakhstan to take up a position in that country, subject to formal procedures being followed. R had recently adopted a policy whereby certain adjustments which were “costly” (defined in the policy as costing over £10,000) were scrutinised using a new procedure. A manager, following this new procedure, recommended that a lipspeaker should not be provided, primarily on grounds of cost, but also because of concerns about whether continuity of support could be guaranteed. The ET held that the adjustment was unreasonable and there was no direct discrimination.

Held

The EAT rejected the appeals. In this case, for the purposes of the direct discrimination claim, C compared herself to members of staff with families who were given financial support. She argued that whereas their costs were met as a matter of right, in her case the costs were the subject of an independent assessment. The ET rejected this comparison and stated that the circumstances were materially different.

C also argued that the ET had failed to ask itself the reason why she was refused the posting. The EAT agreed with the ET’s approach. Underhill J stated that the reason C was not appointed in Khazahkstan was because of the cost of providing her with support and the uncertainty about whether the support was continuous. Underhill J accepted that this was related to C’s disability but stated that it did not mean that the treatment was “on grounds” of disability. Those with different needs, such as support for children, could not form the basis of a comparison because those needs were materially different.

In respect of the reasonable adjustments claim Underhill J held that there was no “nice analysis” of how much an employer might reasonably be expected to spend. The ET must do its best to determine the question as the “industrial jury” having regard to the Code of Practice. In Pulham v London Borough of Barking and Dagenham [2010] ICR 333 the EAT suggested that a pre-determined budget would not automatically lead to an adjustment being considered too costly. Underhill J held that although the budget was not decisive it was still relevant and could be taken into account and that the ET, having considered all the relevant factors, was entitled to come to the conclusion that it did.

Comment

At paragraph 18 Underhill J very nearly advocates the scrapping of hypothetical comparators stating that “it will usually be better to focus on the reason why question than to get bogged down in the often arid and confusing task of constructing a hypothetical comparator.” He held that the reason why C was not appointed as Deputy Head of Mission at Astana admitted of a straightforward answer. It was the cost of providing her with the support necessary to do her job, coupled with the uncertainty about whether such support would be available at all.

Underhill J's analysis and rejection of C's suggested comparator is interesting. It is hard to understand why the position of the comparators in this case was materially different where the reason for refusing the adjustment was purportedly cost. For example, if A can only work if she has £10,000 of investment (because of disability) and C can only work if she has £10,000 of investment (because of childcare commitments) doesn't refusing the investment for A but not B shed light (a) on whether the treatment was less favourable and (b) why the treatment was afforded even if they are otherwise in different positions.

In the circumstances Underhill J's conclusion that the reason why the Claimant was treated as she was merely accepts the Respondent's motive and doesn't determine whether the reason for the treatment in the *Amnesty International v Ahmed [2009] ICR 1450 sense was discrimination. If the question Underhill J had posed himself was what was the reason the cost to R was acceptable for B but not for A then that would have disposed of C's claim. Why was it too expensive to pay for A and not for B? It was this less favourable treatment that was the subject of the claim.

This case will be useful when finding an appropriate comparator is proving problematic and will also be useful for those who are being asked to make expensive adjustments. It marks a retreat from Pulham and will allow employers more scope to argue that, having regard to their pre-determined budget, an adjustment was unreasonably expensive.

The full transcript of this case is here: http://www.bailii.org/uk/cases/UKEAT/2011/0016_11_0510.html