Hiring a lipspeaker was not a reasonable adjustment

Jane Cordell, a former diplomat with the Foreign and Commonwealth Office (FCO), whose appointment as the United Kingdom's deputy ambassador to Kazakhstan was revoked after the FCO said that hiring a lipspeaker to support her was too expensive, has lost her appeal against the original findings of the Employment Tribunal.

Ms Cordell is profoundly deaf, and is assisted in her work by "lipspeakers". She was told that the cost of providing lipspeakers was not reasonable and could not be justified. 

Ms Cordell brought a disability discrimination claim against the FCO but the Employment Tribunal dismissed this in October 2010 and Ms Cordell appealed the decision.

The Employment Tribunal in October 2010 decided that diplomats receiving the continuity of education allowance (“CEA”), which gives diplomats posted overseas a sum of money towards school fees and the travel costs of children visiting overseas, was not a relevant comparison in Jane’s case. CEA is paid automatically for relevant diplomats with children, whereas reasonable adjustments for disabled diplomats are subject to whether the FCO considers them reasonable.

Ms Cordell  appealed but her appeal was not upheld. When considering the issue of direct discrimination, the EAT found that the correct comparator was not an FCO employee in receipt of CEA.  The EAT held that the tribunal was right not to focus on all costs associated with sending employees overseas (such as CEA) as this was too general, considering the treatment that was the subject of Ms Cordell’s complaint.

In relation to whether the cost of providing lipspeakers was reasonable, the EAT found it was not reasonable for the FCO to provide lipspeaker support for Ms Cordell, given the cost of such support. The EAT concluded that the tribunal was right to take into account the cost of the reasonable adjustments when compared to the FCO’s budget, Jane’s salary, and other costs associated with running an embassy in Kazakhstan.

Audrey Williams, partner and Head of Discrimination at Law Firm Eversheds LLP, commented:

“Today’s decision of the EAT is significant, not only as a demonstration of the courts willingness to adopt a pragmatic approach but as it is the first time the issue of cost has been so prominent in the context of disability discrimination and reasonable adjustments.

“Discrimination law not only precludes discrimination in employment (and beyond) but, goes further for employees with a disability and imposes a duty on employers to make reasonable adjustments to their practices ,procedures and the working environment to alleviate disadvantage. Whether an employer has breached this duty will depend upon whether the particular adjustment is ‘reasonable’. Cost has always been acknowledged as a relevant factor but until today it was not clear what emphasis tribunals would be likely to place on it nor the extent to which employer arguments that certain adjustments were simply too expensive would succeed.

“There was little dispute between the parties in this case as to the duty owed by the employer to consider reasonable adjustments or what the necessary adjustment was. For Ms Cordell to perform her job she requires the support of lip speakers. It was also not disputed that she is a good and able employee. The main issue was the significant cost attached to the continued provision of lip speakers, being in excess of £249,500 per year and some six times Ms Cordell’s salary.

“Employers will no doubt be comforted by the seeming common sense of today’s decision. The EAT also provided useful indication of the sorts of issues that ought to be considered in the context of reasonable adjustments and costs. 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. Other factors recommended by the EAT are more surprising and may be difficult to include in practice, such as their suggestion that one might look to what other employers are prepared to spend. How many employers will have access to this information?

“An important issue to emphasise is that this case does not relieve employers of their responsibilities in exploring reasonable adjustments. The EAT were inevitably mindful of the fact that the FCO in this case had made considerable effort to consult with Ms Cordell and to justify its conclusions, something which is particularly relevant for public authority employers going forwards and who are now subject to a specific duty to have regard to the need to eliminate unlawful disability discrimination and to promote equality of opportunity for disabled persons under the Equality Act 2010. Even so, the EAT saw fit to specifically refer to striking a balance and weighing up all factors in the steps employers need to take to justify their decisions and this may give some comfort to all employers that expectations will not be unrealistic.”

Ms Cordell's solicitor said she is considering taking the case to the Court of Appeal.