On 22 October an Employment Tribunal delivered a heavy blow to the career prospects of talented disabled people - especially deaf people - in the UK.
It held unanimously that the Foreign and Commonwealth Office had not unlawfully discriminated against senior diplomat Jane Cordell by refusing to post her to Kazakhstan because the ‘reasonable adjustments’ required to make her posting work – Jane is profoundly deaf – were too expensive.
It all looked so different back in 2008. The FCO feted Jane Cordell as a shining example of enlightened UK disability policy in senior professional action. As First Secretary dealing with international security issues at the British Embassy in Warsaw she led high-profile initiatives aimed at improving prospects for disabled people in Poland. Jane’s prestigious Polish prize awarded at a gala ceremony in Warsaw featured in the FCO's Annual Diversity Report 2008/09
Jane planned to build on this impressive showing by winning promotion. She was accepted for Deputy Head of Mission Astana (Kazakhstan). But the FCO then told her that this posting had to be put through the FCO's Reasonable Adjustment policy for disabled people. The cost of supporting a senior deaf diplomat in Astana (constant skilled lip speaker help to enable Jane to operate at meetings and official events) might not be affordable.
After prolonged wrangling aimed at identifying creative ways to make the posting work, the FCO decided against it. Jane took her case to the Employment Tribunal, supported by the Equality and Human Rights Commission.
Her case required the Tribunal to address a key issue of principle in British disability law: is it lawful for a large, wealthy employer to refuse to meet the financial costs involved in giving all disabled employees an equal chance to compete for top jobs? Are some levels of Reasonable Adjustments in fact unreasonable?
The Tribunal did not pull its punches. It found that the FCO would have to spend as much as five times Jane’s annual salary to support her in Astana: "The effect of this finding will impose some limitations on the sort of posting the Claimants can expect in the future but on any objective test the cost of the agreed adjustments was simply unreasonable".
Most employers and taxpayers will hail this result as a triumph for common sense. What about all the other disabled people? What about sick people needing expensive drugs which the NHS can't afford? What about the local school’s leaky roof? You have to draw a line somewhere. It just can't be right to spend so much public money on supporting one diplomat overseas, can it? There are plenty of other cushy diplomatic jobs she can do anyway.
Well, yes. And no. There's more to it than that.
Certain disabilities rule out certain jobs. Blind people need not apply to be air traffic controllers. People confined to wheelchairs can't do mountain rescue work.
However, technology jumps forward. Society looks more imaginatively at disability issues. It turns out that many people with serious disabilities can perform well in responsible, difficult jobs if they are given appropriate extra support. As Jane Cordell herself magnificently showed in Warsaw. Hence the painful issue faced by the Tribunal in this case: should Jane be given her chance at this higher grade overseas, or not?
Previously the government acknowledged that employers might struggle to carry the sometimes significant costs of extra support for disabled people. Its Access to Work scheme provided a central pot of money for work in the UK. However, in 2006 it withdrew the scheme from major government department who thereafter were expected to fund "reasonable adjustments" for disabled civil servants from their own budgets.
The FCO found itself in an awkward position. Many of its staff work overseas, so the cost of supporting disabled colleagues was bound to be higher. Hard cuts were looming. Paying for Jane to work overseas would draw down much of the FCO's total budget allocated for disability issues: that wouldn't be fair to other disabled FCO colleagues. (A phoney concern: in fact other disabled diplomats petitioned David Miliband to urge him to support Jane's case.) It did not seem fair to disabled people to expect them to bid successfully for overseas jobs but then say that the necessary support was unaffordable.
On the other hand, if the FCO tried to categorise jobs (and in effect disabled people themselves) into affordable or unaffordable, that too might look like (and be) discrimination. Hmm. Best to proceed “sympathetically”, on a “case by case basis”, looking at each posting “on its merits”.
The Tribunal scrutinised a large pile of documents about this case. It concluded that the FCO had worked fairly and thoroughly in trying to balance complicated, sensitive issues.
Yet something important is missing in the way the FCO handled the case, and in the Tribunal's judgement itself: commitment and leadership -- the idea that the very fact of supporting this disabled diplomat in a senior overseas position itself sends a hugely powerful signal of encouragement to deaf people round the world. That this has policy value in itself, and is worth paying for.
The FCO like all government departments rarely if ever spends its full budget in any one financial year. FCO Ministers could have decided that precisely because times were getting harder it would be all the more commendable to demonstrate to the planet unswerving British commitment to helping talented disabled people move towards the top of their careers. Had they ordered the system to find the extra money needed per year to support Jane, almost a trivial sum in terms of the overall FCO budget, life would have proceeded calmly.
Instead the FCO under David Miliband’s command opted to retreat briskly from the strong position they had won by supporting Jane Cordell in Warsaw, and hid behind HR rules and procedures. It is more than unedifying to watch the FCO first puffing up its record on disability issues by publicly praising Jane’s work on disability issues in Poland, then promptly dropping its support for her work overseas on the grounds of cost. Were she bidding for Warsaw now she would not get supported. Sorry, too expensive.
The FCO might say that it has helped establish a helpful precedent. Government departments like helpful precedents. But what precedent was really at stake here for the FCO? Thousands of the country's most qualified graduates compete every year for a handful of places in the FCO. The chances of another seriously disabled person wanting to go for all the stresses and challenges of the diplomatic career and then getting through the FCO’s stern selection processes are microscopic.
The overall result? The FCO won this case. But it has nothing to be proud of.
The UK’s small numbers of disabled diplomats are de facto now in two unhealthy categories. Those whose disabilities can be supported relatively cheaply overseas. And those like Jane Cordell who are proclaimed to be too expensive to post to our embassies abroad. The whole point of Equality legislation is to help break down barriers. This is a dismal result, for deaf people in particular. So much for the FCO’s ‘vision’ of “being a world leader in embracing and harnessing difference”.
Did the Employment Tribunal really want to set a new Orwellian standard for disability policy in this country? All disabilities are equal -- but some are more equal than others.
Charles Crawford is a former ambassador to Warsaw