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Diplomat loses appeal after being denied foreign post due to her deafness

Diplomat Jane Cordell has lost her appeal

Photo of Jane Cordell: RNID

5 October 2011

Jane Cordell, a former diplomat with the Foreign and Commonwealth Office (“FCO”), whose appointment as the United Kingdom's deputy ambassador to Kazakhstan was revoked after the FCO said that her deafness made it too expensive to send her to the country, has lost her appeal against the original findings of the Employment Tribunal.

Jane, whose case was supported by the Equality and Human Rights Commission and led by Chris Benson at Leigh Day & Co, is profoundly deaf, and is assisted in her work by "lipspeakers" - individuals who repeat a speaker’s message accurately, without using their voice. Jane was told that the cost of providing lipspeakers was not reasonable and could not be justified.

Jane has worked at the FCO in other overseas postings where lipspeakers were provided, with great success – her work championing disability rights during a diplomatic role in Poland was lauded.

Jane brought a disability discrimination claim against the FCO but the Employment Tribunal dismissed this in October 2010. It was this decision Jane was appealing.

The Employment Tribunal in October 2010 decided that diplomats receiving the continuity of education allowance (“CEA”), which gives diplomats posted overseas a sum of money towards school fees and the travel costs of children visiting overseas, was not a relevant comparison in Jane’s case. CEA is paid automatically for relevant diplomats with children, whereas reasonable adjustments for disabled diplomats are subject to whether the FCO consider them reasonable.

The Employment Appeal Tribunal was asked to decide two issues:

(1)    whether the tribunal used the correct comparator, and in particular whether the tribunal was right to reject a comparison with FCO employees in receipt of CEA; and,
(2)    whether the tribunal were correct to hold that the cost of the lipspeakers were not reasonable. 

The EAT did not uphold Jane’s appeal.  When considering the first issue (direct discrimination) it found that the correct comparator was not an FCO employee in receipt of CEA.  The EAT held that the tribunal were right not to focus on all costs associated with sending employees overseas (such as CEA) as this was too general, considering the treatment that was the subject of Jane’s complaint.

In relation to the second issue (whether the cost of providing lip speakers was reasonable) the EAT found it was not reasonable for the FCO to provide lip speaker support for Jane, given the cost of such support. The EAT concluded that the tribunal were right to take into account the cost of the reasonable adjustments when compared to the FCO’s budget, Jane’s salary, and other costs associated with running an embassy in Kazakhstan.

After receiving the EAT’s judgment, Jane said:

"I am extremely grateful to the Equality and Human Rights Commission for strongly supporting my case in the Employment Appeal Tribunal.

This judgment is important in helping to clarify our complex law on reasonable adjustments and disability discrimination. It is not about me - one deaf woman trying to develop her career - it is a judgment for all disabled people in the UK who want to work, aspire and fulfil their potential. The judgment sends a message to disabled people in this country about how far they can expect to contribute to our society.

The UK's law is the envy of the rest of the world. It stands for fair play. Who knows? Our next great young entrepreneur - the new Dyson or Branson may be disabled, but if they are, to enable them to realise their potential, see their talent developed and reap the economic benefits of this we need to support them. The judgment sends a profoundly negative message. It risks us not only missing out on what disabled people have to offer but also missing out on all the social and economic benefits they can bring."

Due to the complexity of the issues being considered by the EAT, the Judge (the then President of the EAT, the Honourable Mr Justice Underhill) a further appeal to the Court of Appeal was discussed at the end of the hearing. This is an option Jane is considering, given the wide ranging effect this judgment will have, not only disabled employees, but also for anyone who may experience discrimination and less favourable treatment at work.

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