protecting disabled employee’s pay can be a reasonable adjustment
The Employment Appeals Tribunal (“EAT”) has held that an Employment Tribunal was entitled to find that an employer was required, as a reasonable adjustment, to continue employing a disabled employee in a more junior role involving less physical activity, preserving his existing rate of pay on an indefinite basis. Whether it was reasonable for the employer to have to take that step was a separate question, to be determined in the particular circumstances.
In the case of G4S Cash Solutions (UK) Ltd v Powell, the EAT decided that if an employer proposes an adjustment which is incompatible with the terms of the employee’s contract, the employee is entitled to decline it: the adjustment will not be effective without agreement. In this case, it was clear that there had been a variation of the contract when the employee returned from sickness absence to a changed role.
Protecting a disabled employee’s pay when they are redeployed should not be discounted. In every case, the reasonableness of potential adjustments must be assessed on a case-by-case basis, taking account of the factors set out in the EHRC Code, including the costs of making the adjustment and the financial and other resources available to the employer.
In this case, the employer had paid Mr Powell at the higher rate of pay for about a year, and had led him to believe that the arrangement would be long-term. The Tribunal concluded that the employer was a company with substantial resources for whom the additional annual cost of employing Mr Powell would have been easily affordable. The employer’s evidence was that the main reason for not continuing to pay the higher pay was the likelihood of discontent from other employees. The EAT described this as an “unattractive reason”. This is a reminder that the impact (or anticipated impact) on other employees of an adjustment is not generally a factor that should be taken into account when determining reasonableness. However, wider implications on the organisation or the workforce as a whole may be considered.
Previous cases have held that it is for the employer to explore the possibility of reasonable adjustments, not for the employee to suggest them. Although in some circumstances employers will be expected to take the initiative in making adjustments in order to discharge the duty, this case clarifies that an adjustment which also amounts to a contractual change will not be effective without securing the employee’s agreement.