The Employment Appeal Tribunal (EAT) has confirmed that the duty to make reasonable adjustments can extend to protecting a disabled worker's pay where they are placed into a more junior role due to their incapability to perform their contractual duties.
Facts of the case
In G4S Cash Solutions (UK) Limited (G4S) v Mr A Powell, Mr Powell worked for G4S as an engineer maintaining ATM machines for a number of years in central London until he contracted a lower back condition which eventually prevented him from carrying out his role.
In the summer of 2012, G4S created a new 'key runner' role which involved carrying out errands and delivering parts for the engineers. Following his return to work after a period of sickness absence in September 2012, Mr Powell began to work as a key runner while retaining his original engineer salary (which was around 10% higher than the key runner role). He was led to believe this would be a long term arrangement.
By May 2013 G4S was considering discontinuing the key runner role for organisational reasons and Mr Powell was told that the role was not permanent which prompted him to raise a grievance. G4S then offered to make the role permanent for him on the condition that it was on the normal rate of pay for a key runner. Mr Powell was unwilling to accept the reduced rate of pay and was dismissed in October 2013.
Employment tribunal claim
Mr Powell brought claims of unfair dismissal and disability discrimination arguing that his contact had been validly varied so that he was carrying out the key runner role on the engineer pay rate. He also claimed that G4S had failed to make reasonable adjustments by refusing to allow him to work permanently as a key runner at the salary rate of an engineer.
The Tribunal found that that there was no valid variation of contract. The tribunal stated that an adjustment cannot be imposed unilaterally by an employer on a disabled employee and will only be effective with the employee's consent. It did find however, that G4S had failed in its duty in relation to make reasonable adjustments.
On appeal, the EAT held that there had been a valid contractual variation of Mr Powell's contract in late 2012. It also found that there was no reason in principle why an employer could not be required to protect an employee's pay (in conjunction with other measures) as a reasonable adjustment. Mr Powell had been led to believe the key runner role was a long term adjustment and he had actually been paid on that basis for the previous year. Further, there was no evidence provided of other employees' discontent (even though this was part of the rationale for G4S refusing the request), and as such it deemed the adjustment as reasonable.
What this means for employers
The EAT made a number of significant comments about the duty to make reasonable adjustments and cost burdens that employers should take into consideration when dealing with reasonable adjustment cases.
The fundamental question in these types of cases is whether it would be reasonable for the employer to take a particular step?
The EAT said that many measures which it will be reasonable for an employer to take will involve a cost to them. This may be a direct cost such as provision of equipment, training or support or an indirect cost in that the measure will render the disabled worker's employment less productive so the employer is in effect subsidising the employee's wages when compared with non-disabled workers.
The EAT took the view that pay protection is no more than another potential form of cost for an employer. The legislation envisages that an employer should bear an element of cost in order to keep employees in work which is the primary objective of the legislation.
However, the EAT was not totally pro-employee in its approach. It commented that it did not expect it to be an 'everyday event' for an employment tribunal to conclude that an employer is required to make up an employee's pay long term to any significant extent. However, it could be reasonable as part of a package of reasonable adjustments, as it was for Mr Powell.
The EAT also noted that, in changed circumstances, an adjustment may eventually cease to be reasonable, for example if the need for a job were to disappear or the economic circumstances of the business changed.
This case is not a green light for disabled employees to expect their employer to be excessively generous in funding adjustments; clearly what is reasonable in any given case will depend in part on the circumstances of the employer; it is worth noting that in this case the employer was a large company with significant resources.
However, the EAT has perhaps been more explicit in this case than it has previously and confirmed that pay protection is not outside the realms of what may be reasonable.