The EAT has confirmed that the duty to make reasonable adjustments for a disabled person does not create a general requirement to protect a disabled person's pay if they have to move permanently into a lower paid role. Such a duty might arise on the facts of a particular case but only in exceptional circumstances, and it did not do so on this occasion.
The current trend in case law is that it will not usually be considered a reasonable adjustment to maintain full sick pay beyond what would normally be paid to a non-disabled person, or to require or maintain a higher rate of pay than the rate attributable to a new, permanent role into which a disabled person is redeployed. Nonetheless, this rule is not set in stone. Such an adjustment might be considered reasonable if, say, the employer had led the employee to believe that pay would be protected indefinitely. If it was the employer's own failure to make other reasonable adjustments that had caused the employee's continued absence, or required them to move into a different role, then the employer would be liable to compensate the employee by, in effect, paying them the salary for the old role.
In more detail
Aleem v E-ACT Academy, EAT
Employers have a duty to make reasonable adjustments for a disabled employee if they apply a provision, criterion or practice that puts the employee at a substantial disadvantage in comparison to non-disabled people. One common area of dispute in this regard is whether the maintenance of full pay is reasonable, as seen in the following example cases:
- In Nottinghamshire County Council v Meikle, the Court of Appeal considered that the employer was required to continue full sick pay because the employee's absence was caused by the employer's failure to make other reasonable adjustments.
- In O'Hanlon v HMRC, however, the Court of Appeal said that it was not a reasonable adjustment on the facts of that case to continue to full sick pay. The EAT, approved by the Court of Appeal, stated that the purpose of disability discrimination legislation was to enable disabled people to play a full part in the world of work, not to treat them as objects of charity. As such, it would be rare for the payment of higher sick pay than that payable to a non-disabled person to be considered as a reasonable adjustment.
- In Newcastle upon Tyne Hospitals NHS Foundation Trust v Bagley, the claimant was in receipt of temporary injury allowance amounting to 85% of pay. She returned to work on a phased basis, being 60% of normal hours. The EAT held that the employer was not required to continue to pay 85% of pay during this time.
- In Powell v G4S, the EAT held that the employer was required to provide pay protection. The employee permanently moved into a lesser paid role as a result of his disability. He was led to believe that it would be permanent. The EAT considered that the decision in O'Hanlon did not mean that pay protection could never be reasonable, and observed that O'Hanlon was concerned with sick pay, not pay while working.
Mrs Aleem was a teacher with a mental health condition, which caused long-term sickness absence. She trialled a non-teaching role, during which time the Academy agreed to continue to pay full, teacher salary. OH advised that Mrs Aleem was unable to return to her teaching role but could perform the non-teaching role. She agreed to take this role on a permanent basis. The Academy was clear that this meant moving to the lower pay grade for that role. Mrs Aleem claimed that the Academy should have protected her full, teacher pay as a reasonable adjustment.
The employment tribunal and EAT rejected Mrs Aleem's claim. They concluded that, although it had been a reasonable adjustment to maintain her pay during the trial period (when it was still contemplated that she might return to a teaching role), there was no requirement to permanently maintain her pay. The EAT confirmed that the Powell case had not created a general rule that pay protection should be offered as a reasonable adjustment, and highlighted the fact that Mr Powell had been led to believe that preservation of his pay in the new role was indefinite; whereas, in the present case, the tribunal found that the Academy had been at pains to make sure that Mrs Aleem did not misunderstand the position. The EAT considered that the guidance in O'Hanlon was applicable, and concluded that there was nothing exceptional about this case that would mean the Academy was required to protect Mrs Aleem's pay.