The important Employment Tribunal hearing into a disability discrimination claim made by an FCO employee against the FCO raises all sorts of intriguing dilemmas for public and private sector employers.
Such as this one.
Suppose an employer (Frank) has a good, motivated and ambitious employee (Sasha) who is disabled (in this hypothetical case blind) and needs specialist support at the workplace. It costs an employer significant money to pay for the ‘reasonable adjustments’ needed to help Sasha do a job effectively.
The extent of those costs depends on where in the organisation the disabled person works. It turns out that those extra costs are less in London at HQ than in the organisation’s three branch offices in Edinburgh, Brussels and Beijing:
- London: £10,000 per year
- Edinburgh: £16,000 per year
- Brussels: £40,000 per year
- Beijing: £68,000 per year
Frank knows that if that specialist support is there, Sasha (currently at HQ) can do many jobs in any of these offices to a good standard.
However, it looks to be just too expensive to send Sasha to Beijing – the extra costs involved would cancel out (and more) the likely benefit of having Sasha there. Brussels is now difficult in cost terms – and getting more difficult in the economic downturn. Edinburgh and especially London are both comfortably affordable.
How to organise an internal bidding process for jobs?
The organisation’s firm guiding principle is No Discrimination. Anyone who is suitably qualified can apply for any post anywhere.
It looks to be awkward on discrimination grounds to tell disabled employees as a general category that in certain cases (identified or not) some jobs may not be open to them on the basis that the ‘reasonable adjustments’ concerned may be unaffordable.
It also looks to be very awkward to tell a specific group of severely disabled people (eg blind or deaf people) that a number of postings away from HQ may be unaffordable for them even though others with different disabilities may be affordable.
So Frank glumly decides to try to keep options open and ‘treat each case on its merits’ by being ‘reasonable’.
He sets up a system which allows Sasha like all other employees to bid for any job anywhere, with the proviso that once the job is confirmed the test of ‘reasonable adjustments’ will be applied to see if (all factors considered) the posting can be made to work. This policy is presented to all employees as part of the deal: all postings away from HQ are subject to satisfactory conditions being met eg on health-checks.
Sasha applies for a job in Beijing and gets it. Frank then has to tell Sasha that that job is unaffordable.
Sasha is furious:
Whaaat? Wy have you been wasting my time? You must have known from the start of my job-bidding round that this is what you’d say. Only the blind people around here are being treated like this. This is humiliating.
Frank (startled) replies:
Come on. What choice do I have? If I tell you up front that we can’t afford Beijing or anywhere else for blind people, you’ll run off to some Tribunal and bust us for disability apartheid and discrimination. We have bent over backwards to help you in jobs at HQ. You’ve done really well too. But this is a business, not a charity. I can’t send you somewhere where the sheer costs of sending you abolish any profit you make!
Sasha (even more furious):
What? Now you’re patronising me too. I know it’s tough employing cripples like me. It’s even tougher being a cripple, by the way. All I want is to do a good job and get a fair deal. Why can’t you people ever just be honest with me? Are you saying that all I can do is bid for jobs, and when I get one I have to wait for you to snatch it away?!
Frank (getting angry too):
Look. The rules we set up were obviously fair, to you and to everyone else. We have to look at each case on its merits. What else should we do? We’re thinking about opening an office in Saudi. It will be pointless sending women there as many Saudis will not deal them. Discrimination against women, or reality? Life is all about tricky choices. There are many jobs you can bid for at HQ or Edinburgh. You’re not being held back or in any way disadvantaged.
Sasha (in despair):
Only you could argue that if one employee alone here – namely me – is denied the chance to go to Beijing, that employee suffers no disadvantage. Now you’re hinting that I won’t be accepted for Brussels jobs either?! Stop messing around. Give me a list of jobs I can apply for.
Frank (somewhat pompously):
Listen, Sasha. You know I can’t do that. That would amount to discrimination, putting disabled people in a jobs ghetto. Trust us on this one. We’re doing the best we can. Not all disabilities are the same.
Sasha (incandescent):
Ah, I get it. Someone with a mobility disability can apply anywhere, since it doesn’t cost you much. But I’m blind, so I can kiss goodbye to any overseas jobs in this organisation. It’s just that you don’t have the guts to tell me, hiding behind your so-called reasonable adjustments and all those jerky consultants and experts you brought in to talk about my condition without talking to me! What did that lot cost, by the way?
Frank (firmly):
Calm down. That’s an unfair parody of the situation. The very idea of ‘reasonable’ adjustments means that some adjustments you’d like may be unreasonable, including on cost grounds. You’re a smart officer. I’m surprised and disappointed that you don’t see that!
Sasha (with steely determination):
You’re dead wrong. I may be blind, but some things I see very clearly. Especially your blatant discrimination with knobs on. I’ll ‘see’ you in court.
* * * * *
See the problem?
The FCO at the hearing on Thursday revealed that this was All Too Difficult and emitted an endearing cry for help:
… they would not give a clear answer to what level of cost was reasonable for deaf people overseas. At one point an FCO HR person cheerily opined that the Tribunal might help them answer that one(!). Indeed they might.
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