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Disability discrimination and the question of reasonable adjustment
PPMA EMPLOYMENT LAW UPDATE October 2011 (1)
As HR Professionals will be aware, a key provision within disability discrimination legislation is the duty to make reasonable adjustments. An important consideration from the employer’s perspective will be the concept of “reasonableness”, as the duty arises only in respect of those steps which it is reasonable for the employer to take in order to avoid the disadvantage to the disabled person. Whilst the Equality Act does not specify the factors to be considered in determining reasonableness, the provisions within the former Disability Discrimination Act (DDA), the Equality and Human Rights Commission’s Code of Practice on Employment and the approach taken by the courts and tribunals on this issue provide guidance for employers.
One factor may be the cost of any potential adjustment, an issue which the Employment Appeal Tribunal (EAT) had to consider in the case of Cordell v Foreign and Commonwealth Office.
The employee in this case worked for the Foreign and Commonwealth Office (FCO). She is profoundly deaf. Her first two postings were in London and she was then posted to Warsaw. Both in London and Warsaw she was provided by the FCO with the support of professional “lipspeakers”. She was then offered a role in Kazakhstan, subject to an assessment of whether and at what cost arrangements could be made to accommodate her disability. Having undertaken the assessment, the FCO concluded that the adjustments could not be agreed, principally on grounds of cost but also because it was doubtful whether the support could be guaranteed. There were alternative roles which she could apply for and she would not be prevented from progressing her career. She made claims under the (former) DDA of direct disability discrimination and a failure to make reasonable adjustments. The FCO provided a continuity of education allowance (CEA) to cover the school fees of children of staff posted abroad and she argued that there was no material difference between her situation and CEA recipients as both required financial support to work abroad.
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