29/12/2010
Two key recent decisions have looked at the question of the reasonableness of adjustments required for disabled employees: whether costly adjustments for a blind employee were reasonable; and whether it is a reasonable adjustment to allow a police officer suffering from depression to be reinstated following her resignation. Julian Hoskins reports.
In this article...
The background
Under the Disability Discrimination Act 1995 (DDA), an employer had a duty to make reasonable adjustments for a job applicant, employee or former employee who, because of their disability, was placed at a substantial disadvantage by a "provision, criterion or practice" (PCP) applied by the employer.
The DDA has since been repealed, but the Equality Act 2010 (which came into force after these cases arose) replicates very similar provisions.
In Hinsley v Chief Constable of West Mercia Constabulary, the Employment Appeal Tribunal considered whether a Chief Constable had failed to make a reasonable adjustment by refusing to reinstate a depressed police officer who wished to withdraw her resignation, where there was no express power for him to do so under Police Regulations.
And in Cordell v Foreign and Commonwealth Office (unreported), an Employment Tribunal considered whether it was reasonable for the Foreign and Commonwealth Office (FCO) to refuse to make expensive adjustments for a blind employee, on the basis of cost alone.
The facts
In Hinsley, a probationary police officer with West Mercia Constabulary, resigned from the force on 20 December 2006. Despite being urged to re-think, Mrs Hinsley wrote a second resignation letter on 4 January 2007 and left immediately. Her resignation was officially accepted on 11 January and took effect on 17 January. Mrs Hinsley was then diagnosed with depression and, shortly afterwards, sought to withdraw her resignation. Her request was refused, because Police Regulations only allow an ex-officer to be re-instated or re-engaged after making a fresh application.Mrs Hinsley claimed that the failure to allow her to change her mind and automatically reinstate her amounted to a failure to make reasonable adjustments because
- there was a PCP that police officers’ notice of termination could not be retracted
- a person suffering from depression would be placed at a substantial disadvantage by this PCP, as their decision to resign would be more likely to have been made on irrational grounds
- it would, therefore, have been reasonable to have made an exception and allowed Mrs Hinsley to be reinstated.
A tribunal rejected Mrs Hinsley's claim, agreeing with the Chief Constable that this proposed adjustment was prohibited by the Police Regulations. Mrs Hinsley appealed to the EAT.
In the Cordell case, the facts are somewhat more
complicated. Ms Cordell, who is deaf, works for the
Foreign & Commonwealth Office (FCO). In order to
accommodate her disability, the FCO has provided full time
‘lip-speaker’ support for her role, based in Poland, which averages
out at an annual cost of £146,000. Ms Cordell applied for,
and was offered, a promotion to a post in Kazakhstan, but the cost
of providing lip-speaker support for this role was significantly
greater. The exact cost was uncertain, but it was thought to
be in the region of £250,000. Because the FCO has in place a
reasonable adjustments policy which requires that all adjustments
which cost more than £10,000 be subject to special scrutiny, the
proposed adjustments were reviewed by the FCO’s HR Director (in
consultation with Ms Cordell). It was decided that the costs
were unreasonable and Ms Cordell’s offer of employment in
Kazakhstan was withdrawn.
Ms Cordell argued at an Employment Tribunal that the costs of supporting her in the Kazakhstan were reasonable. She compared the cost with the FCO's Continuity of Education Allowance (CEA) policy, under which the FCO pays £25,000 per child towards the cost of private education for diplomats' children, plus travel costs. Ms Cordell argued that the costs under the CEA policy for staff with large families could equate to the costs of the proposed adjustments required for her Kazakhstan post.
The decisions
In the Hinsley decision, the Employment Appeal Tribunal (EAT) decided that the failure to reinstate Mrs Hinsley was a breach of the duty to make reasonable adjustments.
The EAT held that
- although the Police Regulations did not contain a specific power allowing for automatic reinstatement of officers who have resigned, the Regulations did not prevent that course of action; and
- reinstatement would have been a reasonable adjustment because, apart from the procedural bar which the constabulary had placed in its way, there did not appear to be any objection to Mrs Hinsley returning to work.
In the Cordell decision, the tribunal held that the FCO had acted reasonably in refusing, on the grounds of cost, to accommodate Ms Cordell’s disability.
In reaching its decision, the tribunal noted that
- there were other roles available to Ms Cordell, within the FCO, of equal status, which would not cost as much to accommodate
- the cost of the adjustments would have amounted to over five times Ms Cordell’s salary
- the cost was also more than the entire annual cost of employing local staff at the Kazakhastan embassy
- although the costs would have fallen within the FCO’s reasonable adjustments budget, it would have accounted for a major proportion of the budget, and exceeded the next largest expenditure on disability adjustments for an individual by about £200,000
- in relation to the comparison with the cost of educating diplomats’ children, the tribunal noted that the maximum cost of this, even for very large families, would be no more than around £175,000.
What does this mean for me?
The significance of the Hinsley case for all employers is that the duty to make reasonable adjustments continues to apply even after the termination of employment. In this case, the duty arose a short time after employment had been terminated; the result may have been different if more time had elapsed after the resignation had taken effect, or if a replacement had been recruited.
This case also serves as a reminder that disability discrimination requires employers to go further than treating disabled employees equally to non-disabled employees; disabled employees will sometimes require exceptional treatment.
The Cordell case illustrates that, while cost alone will not always justify a refusal to make an adjustment, a significant cost may make an adjustment unreasonable, even if it is within a budget. Note, however, that this was a first instance decision, and it would therefore, be open to another tribunal to reach a different conclusion.
