Protected Pay as a Reasonable Adjustment?

Our Employment solicitor Jack Mitchell discusses a recent case concerning an employer’s obligation to provide reasonable adjustments by protecting pay when a disability forces a change in role.

Aleem v E-Act Academy

What better way to kick-off our ‘Back to School’ quarterly September edition of Resource than a recent Employment Appeal Tribunal (EAT) decision relating to a teacher?

The key facts

Ms Aleem worked as a science teacher at E-Act Academy. She had a lengthy period of absence due to mental health issues, which were found to amount to a disability under the Equality Act 2010, and returned to work as a ‘cover supervisor’ instead of her usual teacher position. The cover supervisor position attracted a lower salary than that of the teacher position.

The Academy continued to pay her higher teacher salary whilst she trailed the cover supervisor role for a probationary period. During the trial period she raised a grievance in relation to a number of matters.

A subsequent Occupational Health report concluded that she remained, in the long-term, unfit to resume the teaching role but fit to carry out the cover supervisor role. Upon accepting a full-time cover supervisor role, the Academy therefore put her on the lower salary, being the going rate for that particular position.

Ms Aleem brought a claim for disability discrimination. She argued that by not maintaining her higher teacher salary, the Academy had failed to make a reasonable adjustments for her disability.

Employment Tribunal (ET) Decision

Her claim failed in the first instance.

It was held that protecting her pay at the higher teacher rate after her probation period and grievance had been completed was NOT a reasonable adjustment.

This decision was influenced by external factors such as the Academy’s ‘financial difficulties’ as well as the significant extra cost burden of paying her the higher rate for an indefinite period.

Employment Appeal Tribunal Decision

The EAT agreed with the original decision reached in the ET and dismissed the appeal.

It held that the ET was not wrong to have considered a) the significant additional cost involved in having to pay Ms Aleem at the teachers’ rate indefinitely and b) evidence that the Academy was facing financial pressures at the time when concluding that the proposed adjustment was not reasonable.

Key points for employers

What will amount to a reasonable adjustment will vary depending on the specific facts, background and circumstances to any given scenario. Some cases in the past have supported a return to a higher rate of pay, so each case is fact specific. The advice is clear: look at the facts relating to the situation you face. If you cannot increase pay, be clear as to why this is the case.