Introduction

Cordell v. Foreign and Commonwealth Office ([2011] Eq LR 1210) is a landmark case adjudicated by the United Kingdom Employment Appeal Tribunal on October 5, 2011. The appellant, Ms. Corde, a profoundly deaf employee of the Foreign and Commonwealth Office (FCO), contested her non-appointment to a Deputy Head of Mission position in Kazakhstan. Her claim centered on alleged direct discrimination and the FCO's failure to make reasonable adjustments to accommodate her disability, specifically pertaining to the provision of English-speaking lipspeaker support. This commentary delves into the intricacies of the Judgment, unpacking its legal reasoning, cited precedents, and broader implications for disability discrimination law.

Summary of the Judgment

The Employment Tribunal initially dismissed Ms. Corde's claims, a decision upheld upon appeal. The appellant argued that the FCO's refusal to fund sufficient lipspeaker support constituted direct discrimination under section 3A(5) of the Disability Discrimination Act 1995 (DDA 1995) and a failure to make reasonable adjustments under section 3A(2). The Tribunal concluded that the primary reason for non-appointment was the exorbitant cost of the required adjustments, which were deemed unreasonable. Consequently, both claims were dismissed.

Analysis

Precedents Cited

The Judgment extensively references key cases that have shaped the interpretation of disability discrimination law in the UK. Notable among these are:

• London Borough of Lewisham v. Malcolm [2008]: This case clarified the scope of section 3A(1) of the DDA 1995, effectively narrowing the distinct role of disability-related discrimination.
• J.P. Morgan Europe Ltd v. Chweidan [2011]: Reinforced the reduced scope of disability-related discrimination post-Malcolm, emphasizing the predominance of direct discrimination claims.
• Stockton On Tees Borough Council v. Aylott [2011]: Highlighted the importance of framing claims under failure to make reasonable adjustments rather than broader disability-related discrimination.

These precedents influenced the Tribunal’s approach by reinforcing that claims of failure to make reasonable adjustments (section 3A(2)) should be the primary avenue for disability discrimination cases, especially following the legal nuances introduced by the Malcolm decision.

Legal Reasoning

The core legal issue revolved around whether the FCO's refusal to fund the necessary lipspeaker support amounted to direct discrimination or a failure to make reasonable adjustments. The Tribunal adopted a two-pronged approach:

1. Direct Discrimination: The Tribunal assessed whether the Appellant was treated less favorably due to her disability. It concluded that the primary reason was financial—the exorbitant cost of adjustments—rather than her deafness per se. Thus, the claim of direct discrimination failed.
2. Failure to Make Reasonable Adjustments: Under section 3A(2), the FCO is obligated to make reasonable adjustments for disabled employees. The Tribunal evaluated the reasonableness based on the criteria set out in sections 4A and 18B of the DDA 1995, which include factors like the cost, practicability, and potential disruption caused by the adjustments. The Tribunal deemed the required costs unreasonable, especially when compared to costs allocated under the Continuity of Education Allowance (CEA) for employees with children.

The Tribunal meticulously weighed the financial burden of providing the necessary support against the benefits to the Appellant, ultimately finding the costs prohibitive and thus unreasonable.

Impact

This Judgment underscores the delicate balance employers must maintain between accommodating disabled employees and managing financial constraints. It highlights that while employers have a duty to make reasonable adjustments, they are not obliged to incur disproportionate costs. The case sets a precedent for evaluating the reasonableness of adjustments, particularly in governmental or large organizational contexts where budgetary considerations are paramount.

Furthermore, by distinguishing between direct discrimination and failure to make reasonable adjustments, the Judgment reinforces the importance of correctly framing disability discrimination claims. It steers litigants towards focusing on reasonable adjustments rather than broader claims, ensuring clarity in legal arguments and tribunal assessments.

Complex Concepts Simplified

Conclusion

The Cordell v. FCO Judgment serves as a pivotal reference in UK disability discrimination law, particularly concerning the extent and limitations of reasonable adjustments. It clarifies that while employers are obligated to make accommodations for disabled employees, such obligations are subject to reasonableness, which encompasses financial and practical feasibility. The case also reinforces the necessity for precise legal framing of discrimination claims, steering them towards established statutory provisions. Overall, this Judgment balances the rights of disabled employees with the operational and financial realities faced by employers, contributing meaningfully to the jurisprudence surrounding disability discrimination.