Cordell v Foreign and Commonwealth Office

For direct discrimination, the relevant question is why the employer acted. A decision caused by the cost or practical difficulty of adjustments required because of disability is not necessarily treatment on the ground of disability itself. The comparison must reflect the circumstances relevant to that reason.

For reasonable adjustments, cost is a central consideration, but it must be weighed against the benefit to the disabled employee, practicability, resources, disruption and other circumstances. There is no objective tariff for balancing cost against disadvantage. Expenditure on other employees or from a particular budget may provide context, but is only suggestive and cannot determine the result. The tribunal must make an evaluative judgment of what is reasonable in all the circumstances.

The appellant, a profoundly deaf employee of the Foreign and Commonwealth Office, accepted an offer to become Deputy Head of Mission in Astana. The appointment was conditional on suitable disability adjustments being assessed.

The proposed arrangements required full-time English-speaking lipspeaker support. The Employment Tribunal found that the likely cost was at least £249,500 annually, with additional uncertainty about the availability of suitable lipspeakers. It dismissed claims under sections 3A(2) and 3A(5) of the Disability Discrimination Act 1995.

The appeal concerned whether refusal of the posting constituted direct discrimination, and whether the proposed arrangements were reasonable adjustments, particularly in light of the Foreign and Commonwealth Office’s Continuity of Education Allowance for staff with school-age children.

1. Appeal dismissed. The Employment Tribunal had made no error of law in rejecting both the direct-discrimination claim and the claim based on failure to make reasonable adjustments.
2. For direct discrimination under section 3A(5) of the Disability Discrimination Act 1995, the fundamental inquiry is the reason for the treatment. The reason for refusing the appointment was the cost of the necessary lipspeaker support, together with uncertainty whether it could be provided reliably. That reason was related to the appellant’s disability, but was not the disability itself. The direct-discrimination claim therefore failed.
3. The same conclusion followed on the comparator question. Relevant circumstances must reflect those relevant to the reason for the act, as explained in Aylott [2011] ICR 1278. Staff receiving the Continuity of Education Allowance had a particular educational need addressed under a distinct policy. Their circumstances were materially different from those of an employee requiring lipspeaker support.
4. Under sections 4A(1) and 18B(1), financial cost is a central consideration in assessing reasonableness, although it must be weighed with the benefit of the adjustment, practicability, disruption, available resources and other relevant factors. The assessment is evaluative rather than mechanical. Tribunals act as an industrial jury and there is no objective measure for balancing the cost against the employee’s disadvantage.
5. The tribunal was entitled to use comparisons with embassy staffing costs, the reasonable-adjustments budget, existing resources and expenditure in other situations to place the cost in context. A budget is relevant but cannot define the statutory duty. Payments under the Continuity of Education Allowance were also relevant, but could not establish that a commensurate payment was legally required. The uncertainty as to reliable lipspeaker provision provided an additional reason supporting the conclusion.

• Employment Appeal Tribunal: Appeal from the Employment Tribunal dismissed. The Tribunal’s decision dismissing the claims was upheld.
• Employment Tribunal: The claim under sections 3A(2) and 3A(5) of the Disability Discrimination Act 1995 was dismissed.