The Employment Appeal Tribunal confirmed a decision that there was no breach of the reasonable adjustment duty and no direct discrimination in a case where English-speaking lipspeaker support for a deaf diplomat in Kazakhstan would have cost upwards of £249,500 per annum.
Employment Appeal Tribunal, October 2011. Full judgment: www.bailii.org.
A deaf diplomat was selected for a post in Kazakhstan. However this did not go ahead because her employer, the Foreign and Commonwealth Office, considered the cost of providing English-speaking lipspeaker support would be too great, upwards of £249,500 per annum. She appealed against the Employment Tribunal’s decision that there was no direct discrimination, and that provision of the support was not a reasonable adjustment for her employer to have to make.
Held by the EAT: the employee’s appeal failed. There had been no breach of the Disability Discrimination Act.
EAT decision: Cost of the adjustment
The EAT upheld the lower tribunal’s decision that it would not reasonable for the employer to have to pay upwards of £249,500 per annum for lipspeakers to enable the deaf claimant to take up a diplomatic posting. (There was also uncertainty as to whether provision of lipspeaker support could be reliably assured.)
The EAT said there is no objective measure for balancing the disadvantage to the employee if adjustments are not made and the cost of making them. Tribunals must make a judgment, ultimately, on the basis of what they consider right and just in their capacity as an “industrial jury”. The EAT went on to discuss (para 30 and onwards) some of the factors that can be helpful in making this judgment.
Comment from Equality and Human Rights Commission
In an Equality and Human Rights Commission response to the EAT’s decision, Mike Smith, Commissioner at the EHRC and Chair of its Disability Committee, expresses concern that the decision sends the message that disabled people should not expect to get to the top of their profession, if they have significant support needs. He calls upon the government and employers to develop new and creative ways of delivering support for disabled people, so that everyone in employment can maximise their contribution to their employer and society.
EAT decision: Direct discrimination
The EAT agreed with the lower tribunal that there was no direct discrimination.
The claimant had pointed to the employer’s “Continuity of Education Allowance” (“CEA”) for meeting school fees of children of staff posted abroad. The CEA scheme met costs up to £25,000 per child, as a matter of right. The claimant argued she was treated less favourably than “a person who is not disabled for whom the costs likely to be paid for an overseas posting were or would be broadly the same”.
The EAT emphasised that the two questions to be asked under DDA in deciding if there is direct discrimination – namely (a) whether the claimant has been treated less favourably than someone with the same characteristics (other than the disability) would be treated (“the less favourable treatment question”), and (b) whether the treatment was on the grounds of the disability (“the reason why question”) – are two sides of the same coin. The answer to the one should in most cases give the answer to the other. It is (b), the “reason why” question, which is in truth fundamental.
“Where there is an actual comparator, asking the less favourable treatment question may be the most direct route to the answer to both questions; but where there is none 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’.”
In the present case, what was the reason why the claimant was not posted to Kazakhstan? The EAT said (and the claimant’s lawyer seems not to have contested this) that the reason 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. This reason was related to her disability, but that was not the same as saying that her disability was itself the ground of, or the reason for, the treatment complained of.
This in itself was enough to hold there was no direct discrmination. However, consistently with its view of the “less favourable treatment” question and “reason why” question being two sides of the same coin, the EAT also considered there was a difference in material circumstances for the purpose of the “less favourable treatment” question. “…The need for assistance with educational costs is a particular kind of need, met in a particular way, and the circumstances of a person with that need are materially different from those of a person without it.”
The EAT evidently had in mind that too wide an interpretation of ‘direct discrimination’ would leave the employer with no possible defence in circumstances where it ought to have one. As regards its analysis of the reason why the claimant was not given the job, the EAT comments (in a footnote to para 22 of its decision):
“… although the point is not now in dispute, it may be worth spelling out why the distinction is important. If an employer who felt unable to afford the cost of the adjustments necessary to allow a disabled employee to work for him were regarded as for that reason acting “on the ground of” the disability, [the provisions on disability related discrimination and the reasonable adjustment duty] would be effectively redundant. The Act plainly intends that in cases of this kind the employer should have a defence if he can demonstrate that the practical difficulties of making the adjustment in question, including the costs, are disproportionate. If it were legitimate for the employee to say “I know that the reason for your decision is the cost, but the reason for the costs is my disability, so the case falls within [direct discrimination]”, the opportunity for justification would in every case be short-circuited. (Likewise, if the position were that the disability would seriously affect the claimant’s performance of the job, it must be legitimate for the employer to advance a case that the reason for his or her non-appointment was not the disability as such but the fact that he or she would not be able to do the job properly - which case would of course fall to be assessed by the tribunal in accordance with [the reasonable adjustment duty].)