Two recent cases have highlighted the difficulty of determining what is ‘reasonable’.
In the case of Cordell v Foreign and Commonwealth Office the EAT said for the first time that reasonable adjustments under disability discrimination law can be ruled out purely on financial grounds.
An offer of promotion for a senior diplomat was withdrawn because of the cost of providing support for her deafness.
The DDA states that the cost of making the adjustment is one of a range of factors which employers are entitled to take into account when judging whether an adjustment is reasonable, including:
- the size of any budget which the employer has dedicated to reasonable adjustments;
- what the employer has chosen to spend in any comparable situations;
- what other employers are prepared to spend in similar circumstances.
In this case the necessary adjustments would cost five times the employee’s salary, and would have used up more than half of the FCS annual budget for making adjustments. However, it should be noted that simply setting a budget for making adjustments will not enable employers to justify refusal on the basis that it would exhaust that budget. The cost is only one of several factors that an employer must consider when making a decision as to whether an adjustment is reasonable.
A successful appeal in the second case, Salford NHS Primary Care Trust v Smith, concerned the ET ruling that the employer should have found work for the employee even if only “by way of rehabilitation, not necessarily productive”, and should have proposed “light duties” so that her GP could sign her back to work. The EAT found that this was not a reasonable adjustment, because it would not alleviate a particular disadvantage to the disabled person, who was suffering from chronic fatigue syndrome, and enable her to perform her full role; she would remain unfit to return to work. Equally, a career break was not deemed a reasonable adjustment since it would not affect her ability to return to work.
So what is reasonable? An employer should:
- explore alternative roles
- offer retraining to suit the employee for alternative roles
- write to the employee detailing its proposals and offer the opportunity to comment
- encourage the employee to attend the workplace to keep in touch with colleagues
- arrange face to face meetings with the employee to discuss the situation
- determine if there is any job which the employee is capable of doing at the time
- inform the employee that it might be necessary to consider termination of employment.