Long-term pay protection can be a reasonable adjustment under the Equality Act for disabled employees


Long-term pay protection can be a reasonable adjustment under the Equality Act for disabled employees:

According to an article published by the Chartered Institute of Personnel and Development (CIPD) a recent Employment Appeal Tribunal (EAT) decision between G4S Cash Solutions (UK) Limited v Powell highlights the responsibility that an employer's duty to make reasonable adjustments under the Equality Act 2010 may extend to maintaining the salary for a disabled employee who has been redeployed to a lesser skilled role.  However, what is reasonable depends on the circumstances of each case.

Under section 20 of the Equality Act, an employer is required to make reasonable adjustments where it knows or ought reasonably to know that a person has a disability and a provision, criterion or practice places that person at a substantial disadvantage in comparison with non-disabled people.

Powell worked for G4S Cash Solutions UK Limited (G4S) as a Single-line Maintenance Engineer. He had ongoing back problems and it was accepted by 2012 that he had a disability. Around the same time in 2012, G4S produced a new role of "Key Runner" to support its engineers. Powell began working as a Key Runner on his same salary as before, although his new role did not require the same level of engineering skills and training.  After 12 months, G4S informed him that he could continue in his role as a Key Runner but on a reduced rate of pay (a reduction of around 10 per cent), accept a suitable alternative position or face dismissal on medical grounds.  Powell refused to accept the lower rate of pay and was dismissed from his employment in October 2013.

The EAT found that continuing to employ Powell as a Key Runner on a permanent basis and at his previous salary was a reasonable adjustment that G4S was required to make. The difference in salary was around £2,480 a year. Taking into account Powell's age, he was likely to be employed for a further 15 years. The total cost of the adjustment, around £37,000, is relatively small in the long-term. The tribunal noted that G4S had "very substantial resources" and that the additional annual cost would have been "easily affordable".

On appeal, the EAT confirmed that pay protection "may be a reasonable adjustment for an employer to have to make as part of a package of reasonable adjustments to get an employee back to work or keep an employee in work".  It found the following:

• Many forms of reasonable adjustment (for example, providing training and support) involve a cost to the employer. There is no reason in principle to rule out pay protection as a possible adjustment that employers could be required to make.

• Pay protection is to be considered in the context of a package of reasonable adjustments. Following the reasoning in Meikle v Nottinghamshire County Council, the objective of the legislation is not to treat disabled persons as objects of charity but "to require modifications which will enable them to play a full part in the world of work".  Protecting Powell’s pay was reasonable in the context of the change in his role, distinguishing it from the enhanced sick pay in question in the Meikle case.

• This case involved a single claim turning on its own facts, and was not a claim that inevitably applied to many others.

• Requiring employers to make up an employee's pay over the long-term would not be an "everyday event". The question will always be what is reasonable in the circumstances of the case.

• A change in circumstances may mean that a reasonable adjustment stops being reasonable - for example, if the need for a job disappears or the economic circumstances of the business   change.

Healthwork Advice and Discussion:

As an Occupational Health provider, our clinicians can help in identifying those employees who may be classed as disabled and provide clear and actionable advice to employers to be able to manage cases where medial redeployment may be considered as an adjustment in getting an employee back to work or keeping them in work.

This EAT decision explains that there may be occasions where maintaining the salary of a disabled employee who has been redeployed to a less skilled role can form part of a package of reasonable adjustments under the Equality Act 2010.

Therefore, employers cannot rule out pay-related adjustments when assessing their responsibilities however, what is reasonable depends on the circumstances of each case taking into account all relevant factors, including those set out in the Statutory Code of Practice on Employment, such as the cost of making the adjustments, its effectiveness and the employer’s financial or other resources.