1. The drafting of section 3A (5), in common with the provisions proscribing direct discrimination elsewhere in the anti-discrimination legislation, appears to require the tribunal to consider two questions – (a) whether the claimant has been treated less favourably than an actual or hypothetical comparator with the same characteristics (other than his or her disability) was or would have been treated ("the less favourable treatment question"), and (b) whether that treatment was on the grounds of that disability ("the reason why question"). However, as was pointed out by Lord Nicholls in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337, and as has been repeatedly emphasised since, both in this Tribunal and in the Court of Appeal³ – though still too often too little heeded by tribunals – those two questions are two sides of the same coin, and the answer to the one should in most cases give the answer to the other. To spell it out: if A, who is deaf, has been treated differently from B, who is not, and that is indeed the only difference between their cases, the irresistible inference will be that the reason for the different treatment is A's deafness; and likewise if A is subjected to a detriment on the grounds of his deafness it logically follows (at least if that disability is the principal ground) that a person who was not deaf would not have been so treated. As between the two questions, it is the reason why question that is in truth fundamental.⁴ Where there is an actual comparator, asking the less favourable treatment question may be the most direct route to the answer to both questions; but where there is none it will usually be better to focus on the reason why question than to get bogged down in the often arid and confusing task of "constructing a hypothetical comparator".

1. Both before the Tribunal and before us the Appellant's focus has been on the less favourable treatment question. Her essential case is that there is no material distinction between her circumstances, as a person needing financial support in order to be able to work in an overseas posting, and those of the colleagues with children who benefit from the CEA policy described at para. 13 above. She says that, whereas in their case the costs in question are met as a matter of right (subject only to the limit of £25,000 per child), in her case they were dependant on the discretionary assessment required under the Policy. It might therefore be thought that her case was that the colleagues in question were actual comparators; but Mr Epstein preferred to say that the Appellant's case was based on a hypothetical comparator, namely "a person who is not disabled for whom the costs likely to be paid for an overseas posting were or would be broadly the same", and that the relevance of the beneficiaries under the CEA policy was evidential. However, he accepted that his case that such a person would be more favourably treated than the Appellant depended wholly on the CEA policy.

1. The Tribunal did not take this approach. It held at para 7.2 of the Reasons that the fact that the CEA was available only to staff with children was a material difference between their circumstances and those of the Appellant: to ignore it would be "artificial". Mr Epstein submitted that that was a fundamental error. In both cases what the FCO was doing was making an allowance in order to enable a member of staff who would or might otherwise not have been able to do so to accept an overseas posting. The fact that in the one case the difficulty took the form of the cost of ensuring continuous education for his or her children whereas in the other it took the form of the need to supply English-speaking lipspeaker support was immaterial.

1. We do not accept that submission. Our reasons are as follows.

1. We start, in accordance with the approach set out above, by considering the reason why question. In our view, if it is asked what was the reason why the Appellant was not appointed as Deputy Head of Mission at Astana, the straightforward answer is that it was the cost of providing her with the support necessary to do her job, coupled with the uncertainty about whether such support would be available at all. That is of course a reason related to her disability, but it is not the same as saying that her disability was itself the ground of, or the reason for, the treatment complained of. Mr Epstein was at one point in his oral submissions disposed to contest this analysis, but in the end he drew back from doing so.⁵

1. That conclusion by itself means that the claim of direct discrimination must fail, since the treatment complained of would not have been done on the ground of the Appellant's disability. But, for the reasons given at para. 18 above, it ought also to follow that there must be a material difference, for the purpose of the less favourable treatment question, between her circumstances and those of the beneficiaries under the CEA policy. In our view that is indeed the case. The problem with Mr Epstein's submission is that it defines the material circumstances at too high a level of generality. It is necessary, as Mummery LJ observed in Aylott – see at para. 40 of his judgment (p. 1289E) – that the "relevant circumstances" should reflect those relevant to the reason for the act complained of. The Appellant and the beneficiaries under the CEA policy may indeed both need financial support in order to be able to accept an overseas posting, but there is no general FCO policy to afford assistance in all cases where that is so. It is not difficult to conceive of cases in which a member of staff might be deterred from accepting an overseas appointment because of the financial consequences but where no support is available: one example would be where such appointment would mean a spouse or partner having to give up well-remunerated employment in the U.K. The need for assistance with educational costs is a particular kind of need, met in a particular way, and the circumstances of a person with that need are materially different from those of a person without it. That is illustrated by the fact that the Appellant herself would qualify for CEA allowances if she had school-age children.

1. In truth, the Appellant's real point as regards the CEA policy is simply that it is wrong that the FCO should not be prepared to pay the sums in question in order to enable her to work overseas as a disabled employee when it is prepared to pay broadly commensurate sums to, or for the benefit of, members of staff with school-aged children. That is a legitimate point to put into the equation in any assessment of reasonableness for the purpose of section 4A (1) (and thus section 3A(2)), and we consider it in the latter context below. But it does not give rise to a claim of direct discrimination so as to avoid the question of reasonableness or proportionality altogether.

1. We should mention for completeness that in the Appellant's case as originally formulated importance was attached to the fact that the cost of reasonable adjustments only fell to be scrutinised when it exceeded the threshold figure of £10,000. But Mr Epstein accepted that that was not in the end the real point. The Appellant's complaint had to be, and was, simply that the FCO was not prepared to pay the costs necessary to enable her to do the job.

1. We have already set out the terms of sections 3A (2) and 4A (1) the 1995 Act. We should, however, set out the supplementary provisions which appear at section 18B (1), as follows:

"In determining whether it is reasonable for a person to have to take a particular step in order to comply with a duty to make reasonable adjustments, regard shall be had, in particular, to—

(a) the extent to which taking the step would prevent the effect in relation to which the duty is imposed;

(b) the extent to which it is practicable for him to take the step;

(c) the financial and other costs which would be incurred by him in taking the step and the extent to which taking it would disrupt any of his activities;

(d) the extent of his financial and other resources;

(e) the availability to him of financial or other assistance with respect to taking the step;

(f) the nature of his activities and the size of his undertaking;

(g)-(i) … ."

Although financial cost is only explicitly mentioned under head (c), it underlies also heads (d) and (e) and will often be relevant also to head (b). It is in truth one of the central considerations in the assessment of reasonableness for the purpose of section 4A (1), though of course requiring to be weighed with the other factors, including (to paraphrase head (a)) the degree of benefit to the employee if the accommodation is made.

1. The Tribunal also reminded itself of certain parts of the Code of Practice issued by the Disability Rights Commission in 2004 (which remained in force following the merger of the Commission into the Equality and Human Rights Commission: see section 42 (3) of the Equality Act 2006). It noted in particular the observation at para 5.31 of the Code that:

"It would be reasonable for an employer to have to spend at least as much on an adjustment to enable the retention of a disabled person – including any retraining – as might be spent on recruiting and training a replacement."

It also referred to para 5.36, which reads:

"It is more likely to be reasonable for an employer with substantial financial resources to have to make an adjustment with a significant cost than for an employer with fewer resources. The resources in practice available to the employer as a whole should be taken into account as well other calls on those resources. For larger employers, it is good practice to have a specific budget for reasonable adjustments – but limitations on the size of any such budget will not affect the existence of the employer's duties to disabled employees. The reasonableness of an adjustment will depend not only on the resources in practice available for the adjustment but also on all other relevant factors (such as effectiveness and practicability)."

1. The Tribunal gave its decision, and reasons, on the question whether the FCO was in breach of its duty under section 4A at para 7.1 of the Reasons, as follows:

"7.1 Reasonable adjustments. A duty to take such steps as were reasonable clearly arose and the sole question for us is whether the agreed adjustments were reasonable within the terms of the Act. It is our view that they were not. There were, we found, genuine issues as to the practicability under section 18B (1)(b) with regard to the availability of lipspeakers given the difficult nature of the posting, and more significantly there was the financial cost of the necessary adjustments. The likely annual cost amounted to five times the Claimant's salary or put another way would have paid salaried for five more employees at the Claimant's grade; it was more on its own than the entire annual cost of employing local staff at Astana and not far behind the salary cost of all the diplomatic staff at the embassy; it exceeds the cost of adjustments in Warsaw by something over £100,000 per annum and in London by around £180,000; it would account for a large amount of the FCO disability budget and exceeds the next largest expenditure on adjustments for an individual by some £200,000 per annum. Whilst we do not have complete information on the costs of the CEA policy a family of seven children (the largest mentioned in evidence) would account for a maximum of £175,000 if all seven were between eleven and eighteen years of age, although of course the cost of travel would need to be added to this total. We are aware, of course, that the FCO has a large overall budget but the likely costs of these adjustments would have to be met from existing resources. We are aware also that the effect of this finding will impose some limitations on the sort of posting the Claimant can expect in the future but on any objective test the cost of the agreed adjustments was simply unreasonable. ..."

1. Mr Galbraith-Marten in his skeleton argument submitted that on analysis the Tribunal was in that paragraph relying on six factors – (i) that the annual cost of the necessary support exceeded the Appellant's salary by a factor of five; (ii) the comparison with the staffing cost of the embassy in Astana; (iii) the comparison with the equivalent costs in Warsaw and London; (iv) the proportion of the FCO's disability budget which it would absorb; (v) the comparison with the highest known annual payment under the CEA policy, i.e. £175,000; and (vi) the fact that the costs would have to be met from existing resources. He contended that all of these save (iii) were immaterial and that factor (v) supported the Appellant's claim. Mr Epstein adopted those submissions but added a contention that the Tribunal's decision was perverse, having regard in particular to the costs which the FCO was willing to bear under the CEA policy.

1. We will address those points in turn, but we should say by way of preliminary that a decision about what steps are reasonable for the purpose of section 4A (1), as glossed by section 18B (1) – and particularly in this context about how much it is reasonable for an employer to be expected to spend – cannot be a product of nice analysis. There is no objective measure that can be used to balance what are in truth two completely different kinds of consideration – on the one hand, the disadvantage to the employee if the adjustments are not made and, on the other, the cost of making them. The Act requires tribunals to make a judgment, ultimately, on the basis of what they consider right and just in their capacity as (and the hackneyed phrase has real meaning here) an industrial jury. That is not to say that tribunals should simply stick a finger in the air. Their judgment of what level of cost it is reasonable to expect an employer to incur can be informed by a variety of considerations that may help them to see the required expenditure in context and in proportion. Besides the points made in the Commission's Code of Practice, and of course the degree to which the employee would benefit from the adjustment, the relevant considerations may include (and we are not intending to be exhaustive): 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. But such considerations can only help up to a point: even when they have been identified, they can be of no more than suggestive or supportive value (a point which it is necessary to bear in mind when deciding how much time and effort should be put into investigating them). Ultimately there remains no objective measure for calibrating the value of one kind of expenditure against another.⁶

1. Against that background, Mr Epstein's submission that the Tribunal should not have referred to the factors which Mr Galbraith-Marten identified as (i) and (ii) – see para. 29 above – because they were "immaterial" seems to us misconceived. No doubt knowing what proportion the cost (say) of providing lipspeaker support in Astana bore to the total cost of the embassy staff would not give the Tribunal the answer to whether it was reasonable to incur that cost: obviously, there is no rule that the costs are acceptable if they are less than the cost of employing the diplomatic staff, but not if they are more. But the Tribunal was plainly not treating the point in that way. Rather, it was simply trying to put the figures into some sort of context. For the reasons given in the preceding paragraph, that was entirely legitimate.

1. Essentially the same point applies to the Tribunal's reference to the fact that the cost of providing lipspeaker support for the Appellant in Astana would consume about half of the FCO's annual budget for reasonable adjustments – "factor (iv)". Mr Epstein reminded us of our statement in Pulham v London Borough of Barking and Dagenham [2010] ICR 333, at para. 42 (p. 355F) that:

"Employers cannot automatically justify a failure to eliminate discrimination by allocating the costs of doing so to a particular budget and then declaring that budget to be exhausted: any such allocation was their own choice, as was the size of the budget, and plainly they cannot be permitted definitively to limit the extent of their own obligations by the choices that they make."

But in the following paragraph we made it clear that to say that the size of a relevant budget was not decisive did not mean that it was not relevant. In our view the Tribunal was perfectly entitled to take into account in the present case the size of the FCO's reasonable adjustments budget, as part of its appreciation of the context.

1. As for the Tribunal's reference to "existing resources" – "factor (vi)" – we can see nothing wrong in this. No-one's resources, not even the Government's, are infinite.

1. That leaves Mr Epstein's submission that the Tribunal's decision was perverse having regard to the size of CEA payments made to some staff – only very occasionally, it is true, but the Appellant's case was itself unique. We can well understand why the Appellant regarded this as a strong point on the reasonableness issue and why Mr Galbraith-Marten relied heavily on it before the Tribunal. But it is clear that the Tribunal took it into account: this is not a case where a relevant factor was overlooked. The Appellant's submission is and has to be that the only conclusion properly open to the Tribunal was that in the light of the payments falling to be made under the CEA policy the only possible conclusion was that it was unreasonable not to make a commensurate payment⁷ to her. We do not think that the case can be put that high. As we have said at para. 29 above, what an employer is prepared to expend on other objects can never be more than of suggestive or indicative value when it comes to the question whether it was reasonable to expect it to meet the cost of a given adjustment. The FCO's reasons for making payments under the CEA policy, and at the level at which they are made, are no doubt various, and they are particular to the situation of staff with school-age children. The Tribunal could not be expected to embark on an exercise of evaluating those reasons in depth so as to compare them against the argument for making similar payments to disabled employees. Even if such an exercise were practicable, the comparison between the situations of the two types of employee – those with a disability and those with school-age children – is, we repeat, a matter of judgment, in which there are no objective means of measuring the one kind of case against the other.

1. We would add that even if we took a different view about the issue of cost, it is important not to lose sight of the fact that both the FCO and the Tribunal also attached weight to the uncertainty about whether provision of lipspeaker support could be reliably assured in Astana at all.

1. We accordingly dismiss the appeal. We are very sympathetic to the Appellant's situation. It is a great misfortune for her that her disability may limit her opportunities to use her evident abilities in full: we say "may", not "will", because we hope and expect that the FCO will give very careful consideration to fresh opportunities for her as they may arise. But the law does not require it to compensate for that misfortune at whatever cost. The Tribunal approached the assessment of reasonableness carefully and there is no error of law in its approach.

1 It is, however, right to record in this context that the Tribunal did not endorse some highly-coloured, though no doubt genuinely felt, criticisms by the Appellant of the attitude of the HR staff with whom she had dealt. It found that the FCO had tried to consult with her in a way which was open and conscientious: see Reasons, para. 4.27.

2 The law as originally understood has been restored by the Equality Act; but that is immaterial for present purposes.

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3 See, for example, D'Silva v NATFHE [2008] IRLR 412, at para. 30 (p. 417); London Borough of Islington v Ladele [2009] ICR 387, at paras. 35-37 (p. 395); Aylott (above), at paras. 43-45 (p. 1290); and, most recently, Chweidan (above), at para. 5.

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4 As to this, see in particular the analysis by Elias P. in Ladele (above), at para. 32 (p. 394H) – also para. 5 of his judgment in Chweidan (above).

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5 However, although the point is not now in dispute, it may be worth spelling out why the distinction is important. If an employer who felt unable to afford the cost of the adjustments necessary to allow a disabled employee to work for him were regarded as for that reason acting "on the ground of" the disability, sections 3A (1) and (2) would be effectively redundant. The Act plainly intends that in cases of this kind the employer should have a defence if he can demonstrate that the practical difficulties of making the adjustment in question, including the costs, are disproportionate. If it were legitimate for the employee to say "I know that the reason for your decision is the cost, but the reason for the costs is my disability, so the case falls within section 3A (5)", the opportunity for justification would in every case be short-circuited. (Likewise, if the position were that the disability would seriously affect the claimant's performance of the job, it must be legitimate for the employer to advance a case that the reason for his or her non-appointment was not the disability as such but the fact that he or she would not be able to do the job properly – which case would of course fall to be assessed by the tribunal in accordance with section 4A.)

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6 Cf. our similar observations, in connection with the issue of justifying age discrimination, in Pulham (see para. 32 below), at para. 46 (p. 356 D-E).

7 The maximum amount realistically falling to be paid by way of CEA is still rather below the costs with which we are concerned in this case, but the two are of the same order of magnitude, particularly if flights for children in the school holidays are brought into the equation.