Reasonable adjustments and protecting pay

In its recent decision in G4S Cash Solutions (UK) Limited v Powell, the EAT appears to have signalled a potential shift in judicial thinking on the question of whether maintaining a disabled employee's rate of pay when they are moved into a more 'junior' role due to an inability to perform their original role could be deemed to constitute a reasonable adjustment.

In this case, the Claimant had worked as an engineer maintaining ATM machines for number of years before he started to suffer from back problems that meant he could no longer perform that role. The Claimant was placed into a newly created role as a 'key runner', which involved carrying out errands and delivering parts for the engineers; crucially, he was placed into this role on his original engineer salary (which was around 10% higher than the key runner role), with the evidence heard by the original Tribunal indicating that the Claimant was led to believe that this arrangement would continue in the long term. However, the following year the employer proposed that the Claimant's salary should be reduced to what it considered to be the lower, 'normal' rate for the key runner role. The Claimant refused to accept this proposal and was dismissed in October 2013, subsequently bringing Tribunal claims for unfair dismissal and disability discrimination. The case went up to the EAT following the original Tribunal's decision in the Claimant's favour.

The case was to a large extent about the law of amending an employee's terms and conditions, the details of which I have not included for the purpose of this post. The relevant part of the EAT's judgment for my purposes is that it confirmed the original Tribunal's finding that maintaining an employee's pay at its original rate notwithstanding the fact that they had been moved to a different role could (in the particular circumstances of this case, at least) constitute a reasonable adjustment.

The EAT's decision was in my view well-reasoned. Essentially, it took the view that pay protection – in the same way as training or changes to physical working environment – is simply another potential cost that an employer may incur in furthering the underlying objective of the reasonable adjustment legislation: to attempt to keep disabled employees in the workplace. Also, it noted that the employer had itself provided for the Claimant's new role to continue at his original rate of pay, which suggests that it felt that that rate of pay was reasonable and affordable.

However, that is not to say that in reaching this decision the EAT gave the green light for employees to claim pay protection as a reasonable adjustment. The EAT specifically commented that such an adjustment would not be an 'everyday event', and that if circumstances changed (for example, if the employer's economic circumstances worsened) the adjustment might well cease to be reasonable. Indeed, I think it is notable that the EAT reached its decision in a case where the employer was a large company with significant resources which, to be frank, had failed to be absolutely clear on whether the adjustment was temporary or permanent and/or what conditions might apply to the arrangement. The EAT also declined what would have been a fine opportunity (if it had in fact been in the crusading mood that some commentators have attributed it in this case) to set a wider principle that an employee's original rate of pay should be maintained whatever the nature of the change to their role – such as, for example, following a move to a part-time role. Therefore, whilst the case is a useful marker for employers with disabled employees to consider, the basic principle of disability discrimination legislation – that it is designed not to treat disabled employees as objects of charity but rather to assist them in fulfulling as equal a role in the workplace as possible – remains unchanged.