In the case of G4S Cash Solutions (UK) Ltd –v- Powell, the Employment Appeal Tribunal (EAT) had to consider the question as to whether, as a reasonable adjustment an employer had to continue employing a disabled employee in a more junior position at his original (higher) rate of pay?
An employer has a duty to make reasonable adjustments for a disabled employee within the meaning of the Equality Act 2010. The duty arises where the employer knows or ought to reasonably know that a disabled person is placed at a disadvantage when compare to non-disabled employee as a result of some kind of provision, criteria, or practice operated by the employer, or due to some physical feature of the premises, or as a consequence of not providing an axillary aid.
Imposing a duty to make reasonable adjustments on employers under such circumstances encourages employers to take steps to remove any disadvantage suffered by a disabled employee where it is reasonable to do so. If an employer fails to make reasonable adjustments when the duty arises, then they are likely to be found to have discriminated against the employee on the grounds of their disability.
The EHRC Employment Statutory Code of Practice provides a non-exhaustive list of potential adjustments that employers might be required to make. For example, allocating some of a disabled person’s duties to another person or transferring a disabled person to fill an existing vacancy.
Mr Powell was employed by G4S. After he suffered a back injury, G4S gave him work in a new role at his existing rate of pay. Mr Powell believed that the role was long-term. A year later, G4S decided it was only prepared to employ him in the new role at a reduced rate of pay on the basis that it was a more junior role. Mr Powell refused to accept these terms and was dismissed on medical grounds.
Mr Powell argued that there was a variation of his contract entitling him to undertake the new role at his existing rate of pay (pay protection). However, the Tribunal, took the view that G4S should continue to pay Mr Power at the higher rate of pay not because of a variation of the contract but as a reasonable adjustment.
The EAT upheld the tribunal’s decision that it was a reasonable adjustment.
This case is good reminder to employers that the objective is to keep employees in work and recognises that the law envisages a degree of costs to the employer when making a reasonable adjustment.
This particular case highlighted that pay protection when an employee is redeployed should be considered as a possible reasonable adjustment. However, each case will need to be assessed on their own individual facts. Circumstances may change to such a degree that an adjustment may no longer be reasonable. For example, if the role being carried out disappeared. However, the tribunal will look at the size and resources of the employer in determining what is reasonable under the circumstances.
This case is also a useful reminder that contractual changes will not be effective without securing the employee’s agreement.