Can Protecting a Disabled Employee’s Pay Be a Reasonable Adjustment...

Yes, according to the Employment Appeals Tribunal (“EAT”).

The EAT has held in the recent case of G4S Cash Solutions (UK) Ltd v Powell UKEAT/0243/15 (“G4S”), that continuing to employ a disabled employee in a more junior role, whilst maintaining his existing rate of pay on an indefinite basis, in conjunction with other measures, could be a reasonable adjustment as part of a package of measures to get an employee back to work.

Reasonable Adjustments – your legal obligation

An employer has a duty to make reasonable adjustments where it knows (or ought reasonably to know) that a person has a disability and there is a provision, criterion or practice (PCP) which places the disabled person at a substantial disadvantage compared to those who are not disabled. Failure to make a reasonable adjustment amounts to discrimination.

Accordingly, an employer should take such steps as it is reasonable to enable a disabled employee to continue working, as confirmed by the EAT in its recent decision in G4S.

G4S – The Facts

Mr Powell worked for G4S as a single-line maintenance (SLM) engineer, maintaining the company's ATM machines. He had been employed since 1997 in a variety of roles. He suffered with back pain and by mid-2012 he was no longer fit for jobs involving heavy lifting or work in confined spaces. From this period onwards it was accepted that he was disabled under the EqA 2010.

In the summer of 2012, G4S created a new role of "key runner" supporting ATM engineers working in Central London. The role involved driving from their depot to various locations to deliver materials to engineers. This enabled the engineers to travel by public transport.

After a period of sickness absence Mr Powell began to work as a key runner while retaining his existing salary as a SLM engineer. He understood the change of role to be long-term. By May 2013, G4S was considering discontinuing the key runner role for organisational reasons. They told Mr Powell that the role had not been permanent and invited him to look through a list of alternative vacancies. If nothing was suitable, he would be dismissed on medical grounds.

Mr Powell presented a grievance, claiming that G4S was attempting to change his terms and conditions. G4S then decided to make the key runner role permanent, but at a lower rate of pay to reflect the fact that it did not require engineering skills. Mr Powell was unwilling to accept the 10% pay reduction this would entail and was dismissed on 8 October 2013.

Decision

The Employment Tribunal held that that G4S was required, as a reasonable adjustment under section 20 of the EqA 2010, to employ Mr Powell as a key runner at his original rate of pay. G4S appealed to the EAT and this was dismissed.

This case also clarified that an adjustment which amounts to a contractual change will not be effective without securing the employee’s agreement.

Implications for your business

It is important to note that the reasonableness of potential adjustments for a disabled employee should be assessed on a case-by-case basis, taking into account numerous factors, including the costs of making the adjustment and the financial and other resources available to the employer. Evidently, the greater resources an employer has, the easier it is likely to be for an adjustment to be made. However, this case illustrates that in some circumstances protecting pay can be a reasonable adjustment in itself.

If you have any questions arising from this article or would like further information on reasonable adjustments and UK employment law, please get in touch with a member of our Employment team.