Two recent Employment Appeal Tribunal (EAT) decisions on the application of the disability discrimination legislation have reached somewhat surprising conclusions and could have far-reaching implications for FE colleges as employers.
Pay Protection - a Reasonable Adjustment?
In G4S Cash Solutions (UK) Ltd v Powell, the EAT considered whether continuing to pay a disabled employee at his existing rate of pay, in a lesser role, was a reasonable adjustment.
There is established case law to the effect that an employer does not usually need to continue to pay a disabled employee who is on sick leave for any longer than it would pay a non-disabled employee who is off sick, unless the absence is due to a failure to make reasonable adjustments. There is also case law to the effect that reducing pay during a phased return to work is not a failure to make a reasonable adjustment.
Mr Powell was employed as a maintenance engineer. He suffered with back pain and it was accepted he was disabled. When he returned to work, he was given a newly created, less skilled, role as a 'key runner' but retained his original salary. Mr Powell was led to believe that this role and his protected pay were long term adjustments. G4S later proposed to reduce Mr Powell's pay by 10% and dismissed him when he refused to accept this reduction.
The Employment Tribunal found that the dismissal was discriminatory and unfair and that the reasonable adjustments required extended to maintaining Mr Powell's original pay in his new role. G4S appealed against the reasonable adjustment finding.
The EAT dismissed the appeal and held that although it will not be an "everyday event", protecting an employee's existing level of pay may be a reasonable adjustment, as part of a package of reasonable adjustments, to get a disabled employee back to, or keep him in, work.
This decision demonstrates that pay protection may be a reasonable adjustment. Determining what is reasonable is assessed on a case-by-case basis and will come down to the particular factual circumstances. What the employee has been told by the college in terms of the duration of any pay protection will be highly relevant.
In this case G4S had not indicated that the protection was temporary and gave the impression that it was permanent. Therefore, if the intention is for pay protection to be an interim measure, perhaps as part of a phased return, it is essential that this is made clear by the college when the adjustment is proposed.
Discrimination Arising From Disability - Subsequent Medical Evidence
In City of York Council v Grosset, the EAT held that when considering whether an employee suffered discrimination arising from disability, a Tribunal was permitted to take into account medical evidence that was not available to the employer at the time of dismissal.
A claim for discrimination arising from disability will be established where:
- A treats B unfavourably because of something arising in consequence of B's disability
- A cannot show that the treatment is a proportionate means of achieving a legitimate aim
An employer is not be liable where it did not know, and could not have been expected to know, that the employee was disabled.
Mr Grosset was a teacher. The Council knew that he had cystic fibrosis and conceded that he was disabled. As a result of his condition, Mr Grosset needed to spend up to three hours per day undertaking physical exercise to clear his lungs. When his workload increased following a change in head teacher, he struggled to cope and suffered stress which exacerbated his condition.
During this time, Mr Grosset showed the 18-rated film Halloween to a class of 15 and 16 year olds. When the head teacher discovered this, he was suspended and subsequently dismissed for gross misconduct. The medical evidence available at the time of dismissal did not demonstrate a causal link between the misconduct and the disability.
Mr Grosset brought various claims including for unfair dismissal and disability discrimination. The medical evidence presented at Tribunal showed a link between the misconduct and the disability. The Tribunal dismissed the unfair dismissal claim, applying the band of reasonable responses test and taking into account the medical evidence available at the time of dismissal. However, it upheld the claim of discrimination arising from disability, taking into account the medical evidence provided to the Tribunal.
The Council appealed to the EAT on this point, on the basis that at the time of dismissal it was not aware that there was a link between Mr Grosset's misconduct and his disability.
The EAT held that the reason for Mr Grosset's dismissal was misconduct, (i.e. the showing of the film) and that based on the medical evidence before the Tribunal, the misconduct had arisen in consequence of Mr Grosset's disability. It was not necessary to decide whether the Council knew there was a link between the misconduct and the disability. An employer's knowledge is only relevant to determining whether it knew the employee was disabled at all.
The Council is seeking leave to appeal to the Court of Appeal.
This case demonstrates that discrimination arising from disability can occur even where a college has formed a reasonable conclusion (based on evidence available to it at the time) that an employee's misconduct was not caused by his disability.
In cases where a link is established between the employee's actions and a disability a college will only avoid liability where it did not know, and could not reasonably have been expected to know, that the employee had a disability or where its actions can be objectively justified. On the basis of this judgment a college will not escape liability simply because the evidence available at the time of its decision did not establish a link between the behaviour in question and the employee's disability.