In a recent EAT case (G4S Cash Solutions (UK) Ltd v Powell), it was held that an Employment Tribunal was entitled to find that an employer was required, as a reasonable adjustment, to continue employing a disabled individual in a more junior role involving less physical activity, preserving his existing rate of pay on an indefinite basis. While it was appreciated that this would not be an “every day event”, the EAT held that there was no reason in principle why pay protection in conjunction with other measures could not be a reasonable adjustment as part of a package of measures to get an employee back to work.
What is the law regarding reasonable adjustments?
The Equality Act 2010 imposes a duty on employers to make reasonable adjustments to help disabled job applicants, employees and former employees in certain circumstances.
The duty can arise where a disabled person is placed at a substantial disadvantage by:
- An employer’s provision, criterion or practice (PCP);
- A physical feature of the employer’s premises;
- An employer’s failure to provide an auxiliary aid.
However, an employer would not be obliged to make reasonable adjustments unless it knows or ought reasonably to know that the individual in question is disabled and likely to be placed at substantial disadvantage because of their disability. Whether it is reasonable for the employer to take such steps will be considered by an Employment Tribunal.
What are the facts of G4S Cash Solutions (UK) Limited -v- Powell?
Mr Powell worked for G4S Cash Solutions (UK) Limited (G4S) as a single- line maintenance (SLM) engineer maintaining the Company’s ATM machines.
He had been employed since 1997 in a variety of roles. He had suffered with back pain and by mid 2012, he was no longer fit for jobs involving heavy lifting or work in confined spaces. From this period onwards it was accepted that he was disabled under the Equality Act 2010.
In the summer of 2012, G4S created a new role of “key runner” supporting ATM engineers working in central London. The role involved driving from the depot to various locations to deliver materials to engineers. This enabled the engineers to travel by public transport.
After a period of sickness absence, Mr Powell began to work as a key runner while retaining his existing salary as a SLM engineer. He understood the change of role to be long term. By May 2013, G4S was considering discontinuing the key runner role for organisational reasons. They told Mr Powell that the role had not been permanent and invited him to look through a list of alternative vacancies. If nothing was suitable, he would be dismissed on medical grounds. Mr Powell presented a grievance, claiming that G4S were attempting to change his terms and conditions. G4S then decided to make the key runner role permanent, but at a lower rate of pay to reflect that it did not require engineering skills. Mr Powell was unwilling to accept the 10% pay reduction this would entail and was dismissed on 8 October 2013.
The Employment Tribunal Decision
The Tribunal went on to hold that G4S was required, as a reasonable adjustment to employee Mr Powell as a key runner at his original rate of pay. It went on to find that his dismissal amounted to discrimination arising from disability and was unfair.
Did the EAT find that it was a reasonable adjustment to protect Mr Powell’s pay?
It was clear that Mr Powell was at a substantial disadvantage compared to non-disabled employees (since he was unable to carry out his duties as an SLM engineer).
The EAT found that the reasonable adjustments duty may require an employer to treat an employee more favourably than others. It is also well established that the duty may include transferring an employee to a different role. Pay protection is no more than another form of costs for an employer, analogous to the cost of providing extra training or support, and there was no reason in principle why one should be a “step” but the others should not. The question will always be whether it is reasonable for the employer to have to take that step.
If enhanced sick pay could fall within the ambit of a reasonable adjustment, there is no reason why ordinary pay should be excluded.
Will it always be a reasonable adjustment to protect a disabled employee’s pay?
As in every case, the reasonable of potential adjustments must be assessed on a case by case basis, taking into account factors set out in the EHRC Employment statutory Code of Practice (the EHRC Code), including the costs of making adjustments and the financial and other resources available to the employer. The EHRC Code contains a non-exhaustive list of potential adjustments.
The EHRC Code can be found at:
In this case, G4S had paid Mr Powell the higher rate of pay for around a year, and they had led him to believe that the arrangement would be long term. G4S is a company with substantial resources for whom the additional annual costs of employing Mr Powell would have easily been affordable. G4S’s evidence was that the main reason for not continuing to pay the SLM rate was the likelihood of discontent from other employees. The anticipated impact on other employees of an adjustment is not generally a factor that should be taken into account when determining reasonableness.
What about contractual variations?
This case also looked at whether there had been a contractual variation with the change in role and highlights the importance of confirming the intention of whether a contractual change is temporary or permanent in writing.