Natalie Ruane explains whether a reasonable adjustment can extend to pay protection for a disabled employee moving into a lesser role.
Can a reasonable adjustment be continuing to pay a higher salary for a disabled employee when they are moved into a lesser role?
The Employment Appeal Tribunal in G4S Cash Solutions (UK) v Powell considered that this could be a reasonable adjustment in the circumstances.
Due to his disability, the Claimant had been moved from an engineering role maintaining cash machines to a less skilled key runner role. His pay was initially protected but then the employer proposed reducing his pay by 10%. When the Claimant refused this pay cut, he was dismissed.
The Employment Tribunal found the dismissal to be discriminatory and unfair, and the Employment Appeal Tribunal agreed with them.
The Employment Appeal Tribunal found that there was no reason in principle why the duty to make reasonable adjustments would not extend to protect a disabled employee’s pay to counter a disadvantage to that disabled employee. The Court considered that pay protection was just one form of cost to the employer in undertaking reasonable adjustments.
The only good news was that the Employment Appeal Tribunal did state that requiring employers to make up pay would not be an “everyday event” for Tribunals and in different circumstances such an adjustment would not be a reasonable one.
This does beg the question of how to approach a discussion with a disabled employee when temporary adjustments to the role are being made which then become permanent adjustments to the role once it becomes evident that the disabled employee will never be able to undertake the full role again.
It is advisable to be upfront with employees in these situations. Explain that any adjustments made to the role by way of a phased return to get them back to work and to get back up to doing the full role is a temporary reasonable adjustment only whereby their pay is protected and that if it becomes evident that this will need to be a permanent adjustment or that they will need to be redeployed to a different role, that a change in pay would be expected or likely.
About the author
Natalie leads the Employment Law & HR team and specialises in education.