Employers have a duty to make reasonable adjustments in the workplace where a disabled person would otherwise be put at a substantial disadvantage when compared with those who are not disabled.
The recent case of G4S Cash Solutions (UK) Ltd v Powell explored how far an employer might be expected to go when it comes to adjustments relating to pay.
The EAT held that, in the right circumstances, protecting a disabled employee’s pay could be a reasonable adjustment.
Mr Powell worked as an engineer involved in maintaining G4S’s ATM machines. Mr Powell suffered with back problems which became so disabling that by mid-2012 he was unable to carry out his duties as an engineer.
This neatly coincided with G4S creating a new role of “key runner” which largely consisted of driving out to engineers in the field, delivering keys and parts to them. Mr Powell was able to do this role despite his disability. He accepted the position on the understanding that whilst he was taking a lesser role, he would remain on his higher-rate SLM engineer’s salary indefinitely.
Apparently, not what G4S had had in mind. In May 2013, G4S informed Mr Powell that they were thinking of dispensing with the key runner role for “organisational reasons”. They gave Mr Powell a list of alternative vacancies to consider and told him that if none were suitable, that they would have to dismiss him on medical grounds.
Mr Powell lodged a grievance on the grounds that G4S were unlawfully changing his terms and conditions of employment.
G4S back-pedalled fast. They said Mr Powell could have his key runner role back for good, but with a 10% reduction in salary, to reflect the fact that it required fewer skills.
Mr Powell turned down the offer and G4S dismissed him.
The Employment Tribunal found that G4S had failed to make a reasonable adjustment by failing to allow Mr Powell to work as key runner at his existing rate of pay and upheld his complaints of disability discrimination and unfair dismissal.
G4S’s main point of appeal related to the duty to make reasonable adjustments.
Mr Powell was unable to meet G4S’s requirement to carry out his duties as an engineer. He was able to demonstrate that he was suffering a substantial disadvantage as compared to non-disabled employees because he was faced with the stark choice of either a pay cut or dismissal.
So clearly, G4S had a duty to make reasonable adjustments.
However, was it reasonable to expect G4S to take the step of protecting Mr Powell’s pay indefinitely?
The EAT held that G4S should have continued to employ Mr Powell as a key runner at the higher rate of pay. This was a reasonable adjustment in the circumstances of this case. Having reached that conclusion, it followed that Mr Powell’s dismissal amounted to discrimination arising from disability and was also unfair.
The EAT made the point that whilst it will not be an “everyday event” for an employer to make up an employee’s pay long-term to any significant extent, there may be situations where this may be a reasonable adjustment as part of a package to get an employee back to work, or keep them in work.
So, whilst this decision will be helpful to claimants in a similar situation, it certainly does not mean that every disabled employee will be entitled to pay protection as a reasonable adjustment.
On the specific facts of Mr Powell’s case, the adjustment was reasonable: the arrangement had been in place already for a year, Mr Powell expected it to be long-term and moreover G4S had the resources to swallow the additional cost of maintaining Mr Powell’s salary at the higher rate.
Points to note :
- The reasonableness of a particular step must always be considered on the facts of the particular case
- Tribunals will have to continue to weigh all of the factors (including financial considerations) in making their decision
- The impact on other workers of an adjustment is not generally a factor to be taken into account; the EAT gave short shrift to G4S’s “unattractive” argument that Mr Powell’s preferential treatment in relation to pay was likely to lead to “discontent” in the workforce.