Is the protection of pay a reasonable adjustment for a disabled employee?
This was considered by the Employment Appeal Tribunal (EAT) in the case of G4S Cash Solutions (UK) Ltd (G4S) v Powell UKEAT 0243/15.
The duty to make reasonable adjustments arises where an employer 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 employee at a substantial disadvantage compared to those who are not disabled.
The Claimant, Mr Powell was initially employed as an engineer. He developed a back condition and was deemed disabled within the meaning of the Equality Act 2010. The Claimant was moved to a less-skilled role to support role engineers. After 12 months, the Respondent proposed to reduce the Claimant’s salary to the appropriate rate for the support role. The Claimant refused to accept the reduction and was dismissed.
The Employment Tribunal (ET) held that the Claimant was unfairly dismissed and that the Respondent’s duty to make reasonable adjustments for a disabled employee extends to maintaining the employee’s former, higher rate of pay.
G4S appealed the decision to the EAT. The EAT concluded that there was no reason why protecting pay should not be a reasonable adjustment that an employer has to make. The EAT emphasised that the question will always be whether it is reasonable for an employer to have to make the adjustment.
Whether pay protection is reasonable will be different in every case and the employer will have to consider a number of factors in deciding whether reducing or maintaining pay would be reasonable. Employers should not make assumptions, but should assess each case on its merits. This case will certainly encourage disabled employees to argue that their existing pay should be maintained should they be moved to a lesser role. On a more positive note for employers the EAT did conclude that it will not be an “everyday event” for employers to protect pay.
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This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.