The duty to make reasonable adjustments for disabled employees is imposed upon an employer by section 39 (5) of the Equality Act 2010 (EqA 2010). The duty is defined in section 20 of the EqA 2010 and is the key provision. There has been much case law on whether adjustments made by employers were indeed reasonable and whether adjustments should be made at all. In the recent case of G4S Cash Solutions (UK) Ltd v Mr A Powell, the Employment Tribunal and Employment Appeal Tribunal considered whether preserving an employee’s pay, if they are re-deployed to a different role due to a disability, constituted a reasonable adjustment under s.20 EqA 2010.

The Facts

Mr Powell worked for GCSU Ltd as an engineer responsible for maintaining automatic teller machines (ATMs). After many years of employment, he suffered from back problems meaning that he could no longer work in a role requiring heavy lifting. Accordingly, GCSU Ltd re-deployed Mr Powell into a new role of ‘key runner’ (primarily a driving role). GCSU Ltd continued to pay Mr Powell the same rate of pay he had enjoyed in his previous role and he was led to believe this new role (as well as existing terms and conditions) was permanent. However, the following year GCSU Ltd said it was only prepared to employ him in this role at a reduced rate of pay. Mr Powell refused these terms and accordingly was dismissed. As a result, Mr Powell claimed unfair dismissal and disability discrimination at the Employment Tribunal (ET).

Judgement

It was common ground that Mr Powell was disabled for the purposes of the EqA 2010. Mr Powell claimed that there had been an agreed variation to his contract of employment when he started the new role. The Employment Tribunal rejected this argument. However, the ET held that GCSU Ltd were required, as a reasonable adjustment under s20 EqA 2010, to employ Mr Powell at his original rate of pay. GCSU Ltd appealed the decision.

The EAT held that if an employer suggests an adjustment which is incompatible with the terms of the employment contract, the employee is entitled to refuse it. Therefore, the adjustment will not be effective without an agreed variation to the contract. In Mr Powell’s case, the EAT said that the change did amount to a contractual variation, but it was the terms of the variation which remained unclear i.e how long the variation would last and whether the pay would be reduced.

Pay and reasonable adjustments

The EAT said that the ET was entitled to conclude that GCSU Ltd was required, as a reasonable adjustment, to employ Mr Powell in his new role at his original rate of pay. The EAT made some interesting findings in relation to this. It considered the following points:

  • There is no reason why the duty to make reasonable adjustments should not include a requirement to protect an employee’s pay in similarity to other measures made to prevent the employee being disadvantaged;
  • Pay protection is no different to other costs incurred by an employer when making reasonable adjustments, such as training or support. Employers will likely incur some degree of cost when making adjustments and pay protection is no different;
  • There is no reason why pay protection could not be classified as a ‘step’ within s20 EqA 2010.

Analysis

The crux of this case centred on the terms of the variation to the contract. Variations to employees contracts are fairly common. However, this case highlights that the position is not so straightforward for employers when the variation occurs in the context of a disability. This is because there may be no intention that the employee ever returns to the previous role. This should be made clear.

The main warning for employers here is that a disability discrimination claim can be brought for failure to make reasonable adjustments even regarding the protection of an employee’s pay. As always, it will always depend on the circumstances and facts of the specific case. The question will always be whether it is reasonable for the employer to take that step.

Employers should therefore consider and be prepared to preserve an employee’s existing rate of pay as a reasonable adjustment if they are re-deployed to another role as a result of a disability. Furthermore, in order to prevent a dispute and a potential disability discrimination claim being brought, employers are encouraged to get express agreement from an employee to any variation to an employment contract.

Employers should also consider creating a new role as a reasonable adjustment. In Southampton City College v Randall [2006] IRLR 18, the EAT upheld a tribunal’s decision that it would have been reasonable for an employer to devise a new job which took into account the employee’s disability. Creating a new job role could therefore be a reasonable adjustment. However, it always hinges on the facts of the case.