1. Cordell v Foreign and Commonwealth Office [UKEAT/0016/11/SM] (Cost and the duty to make reasonable adjustments)
2. Bennett v Bivonas LLP [ET/2500602/11] (Sexual orientation discrimination and the accidental discovery of homophobic comments)
3. Lisk v Shield Guardian Co Limited [ET/3300873/11] (Does an ex-serviceman’s belief that wearing a poppy in November amount to a philosophical belief?)

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Cordell v Foreign and Commonwealth Office [UKEAT/0016/11/SM]

Cost and the duty to make reasonable adjustments

The recent case of Cordell –v- Foreign and Commonwealth Office provides guidance for employers about how to weigh up the duty to make reasonable adjustments and the cost involved in making adjustments.

In this case the Claimant, who was deaf, was employed by the Foreign Commonwealth Office (FCO). She was provided with lip speakers to assist her when she had worked in London and in Warsaw.

The Claimant accepted a new assignment in Kazakhstan but when the FCO reviewed what was required to accommodate her disability, they concluded that the assignment could not go ahead. The Claimant claimed direct disability discrimination and alleged that the FCO had failed to make reasonable adjustments for her under the Disability Discrimination Act 1995.

The Claimant argued that her situation was comparable to FCO staff who received a CEA, a continuity of education allowance. CEAs are allocated to permit overseas staff to allow for continuity in their children’s education by meeting the cost of boarding school in the UK or a day school in the foreign country. The cost is in or around £25,000 per child and as part of this case it was discovered that the maximum amount that one family had been paid was £175,000.

The Tribunal held that there had been no direct discrimination and decided that there was a “material difference” between the Claimant’s circumstances and those staff with children who received the CEA and it would be “artificial” to ignore this difference.

The Tribunal also decided that the FCO had not failed in its duty to make reasonable adjustments. The cost of providing a lip speaker for Kazakhstan was said to be in the region of £249,500 per annum and could in fact have been higher. The Tribunal believed that this made the adjustment unreasonable.

The Employment Appeal Tribunal (EAT) agreed that there had been no direct discrimination and also agreed that the FCO had not failed to make reasonable adjustments. On the costs point, the EAT clarified that when considering costs, the relevant considerations can include:

“the size of any budget dedicated to reasonable adjustments (though this cannot be conclusive – see below); what the employer has chosen to spend in what might be thought to be comparable situations; what other employers are prepared to spend; and any collective agreement or other indication of what level of expenditure is regarded as appropriate by representative organisations.”

The EAT did not accept the Claimant’s argument that the payments made under the CEA policy made it unreasonable not to make a similar payment to her. It is interesting that the EAT clarified that the FCO had a particular reason for making payments to staff with school age children and the fact that it was prepared to spend money in this area did not mean that this was an indicator of whether or not it was reasonable to meet the cost of a given adjustment.

www.bailii.org/uk/cases/UKEAT/2011/0016_11_0510.html

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Bennett v Bivonas LLP [ET/2500602/11] 

Sexual orientation discrimination and the accidental discovery of homophobic comments.

The Claimant in this case was a barrister who had worked for Bivonas LLP from January 2007. The office had seven staff and the Tribunal hearing the case concluded that by the end of 2007, all of the Claimant’s colleagues were aware that he was gay.

In October 2009, the Claimant was in a café discussing business development with one of his colleagues, Mr Brown. The Clamant was recording the conversation during which Mr Brown said, “If your strategy was to hang outside lavatories, if it develops work I would say that it is the best strategy in the world.” The Tribunal recorded the Claimant’s reaction to the comment as he “burst out laughing”.

In April 2010, the Claimant was reviewing a client file with a QC, Mr. Rainsford when they found a memorandum which referred to the Claimant and Mr. Sharp, who was head of the criminal defence unit in the firm. Mr. Bechelet had referred to the Claimant’s “batty boy mate” when he was describing someone that the Claimant had a professional relationship with.

The Claimant went off sick the next day and made a complaint that this was a homophobic slur. The Claimant claimed discrimination on the grounds of sexual orientation.

The Tribunal considering the case found that the term “batty boy mate” originated from a 2007 rap song inciting violence against gay men but the term was no longer one that was commonly used. The Tribunal accepted that Mr. Bechelet had used the term to describe overtly gay men and he was unaware of the origins of the phrase.

When the employer investigated the matter, it reached the conclusion that Mr. Bechelet did not hold homophobic views and that the note had never intended to be retained.

The Tribunal upheld the Claimant’s complaint of sexual orientation discrimination in relation to the memorandum stating that it was a “professional slur of the utmost gravity”. The Tribunal believed that the comment suggested that the Claimant was passing work to someone because of his sexual orientation and not on the basis of merit.

The Tribunal disregarded the fact that Mr. Bechelet had not intended the Claimant to see the memorandum and concluded that when he wrote the comment on paper, there was the risk that it would be seen by the Claimant or other staff.

This case shows that discrimination can occur even when a comment is discovered by an individual a long time after the comment has been written down. It also shows that discrimination can still be found even where a complainant has put up with or ignored potentially discriminatory behaviour in the past, as was the case in relation to the comment made in October 2009.

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Lisk v Shield Guardian Co Limited [ET/3300873/11]

Does an ex serviceman’s belief that wearing a poppy in November amount to a philosophical belief?

This issue was considered at a pre-hearing review in England under the Equality Act 2010. However, the case is of interest as the definition of “religious belief” was expanded here by the Fair Employment and Treatment Order (Amendment) Regulations (Northern Ireland) 2003 to include “any religion or similar philosophical belief.”

The Claimant alleged that his employer had prevented him from wearing a poppy to work on 2 November 2010. He argued that he had a philosophical belief that people should pay their respects to those who have given their lives by wearing a poppy from All Souls' Day on 2 November to Remembrance Sunday.

The judge hearing the case in the Tribunal considered the test in the case of Grainger plc v Nicholson [2010] IRLR 4 EAT. In that case, the Employment Appeal Tribunal considered that, for a philosophical belief to come within the legislation, it must be genuinely held, it must be a belief and not an opinion or viewpoint based on the present stage of information available, it must be a belief as to a weighty and substantial aspect of human life and behaviour, it must attain a certain level of cogency, seriousness, cohesion and importance and it must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others.

The judge in the current case believed that the Claimant’s belief was too narrow to amount to a philosophical belief and commented that it lacked the cogency, cohesion and importance which were requirements in the Grainger case.

This case is interesting on two fronts. Firstly, that a prehearing review was permitted which can be problematic in Northern Ireland following the Court of Appeal decision in the case of Ryder –v- Northern Ireland Policing Board (2008) NIJB252. Secondly the issue of wearing a poppy in Northern Ireland has been a contentious issue not just on the grounds of religious belief but also political opinion.

Employers in Northern Ireland would still be well advised to follow the guidance given by the Equality Commission [Equality Commission: Promoting a Good and Harmonious Working Environment October 2009] which describes the wearing poppies and shamrocks as “marks of remembrance, celebration or commemoration.” The guidance states the following:

“when these and other marks of identity are displayed with decorum (and, if appropriate, during the designated time) and with a sense of due proportion then they are unlikely to create or sustain a hostile environment. It would be unacceptable however if an individual was made to feel uncomfortable for wearing or not wearing any of these particular emblems or if these emblems were being flaunted before or forced on someone for not wearing them. At the same time, there may be occasions where the display of a particular item may be inappropriate for reasons relating to a genuine occupational requirement (e.g. health and safety) and these other factors must also be taken into account.”