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Reasonable Adjustments: Does this extend to pay protection when a disabled employee is moved to a lesser role?

Napthens - October 25th 2016

Following the recent decision of G4S Cash Solutions (UK) Ltd v Powell it was held that this could apply.

In this case, the Employee was suffering from a disability which meant that he was unable to fulfill the duties of his previous post and therefore was provided with an option to be redeployed as a key runner, which was a less skilled position. As a result of this redeployment the Claimant’s pay was protected and this continued to be the case until his subsequent termination of employment.

Prior to the Employee’s dismissal the Employer sought to consult with the Employee and advised the Employee that they were considering discontinuing the key running role for organisational reasons and advised that the role allocated to the Employee was never intended to be permanent. However following a discussion with the Employee’s solicitors this was viewed as an attempt to alter the Employee’s terms and conditions.

As a result the Employer confirmed that it would be prepared to make the position permanent subject to certain conditions. As the key runner role did not require the skills of the Employee’s original role, the Employer held that the position would only be made permanent if the Employee’s salary could be reduced to the normal rate for this position. The Employee was unwilling to accept this reduction.  No other suitable vacancy could be identified and the Employee was subsequently dismissed.

The Tribunal concluded that taking into account the arrangement which was currently in place between the parties, there was no reason in principle why pay protection could not be considered as a reasonable adjustment, as this is allowed for under the legislation. That being said, the Employment Tribunal also outlined that this is not an expected adjustment in relation to all employee’s who may have a disability.  It was outlined that in circumstances where a  reasonable adjustment is being used as a mechanism in order to try and get an employee back into work or keep an employee in work, this may be the approach adopted.

The Tribunal did however highlight that these cases will be assessed on an individual basis and that considerations to the Employer’s finances, the removal of adjustments in the future, that the role may disappear an/or the operational needs of the business will also need to be assessed. In this case it was noted that the aforementioned rationale was not for the reasons outlined above, but due to the Employer’s concerns that the Employee’s higher rate of pay would likely disgruntle other employees. Understandably this was seen as an unattractive reason by the Tribunal.

This is an important reminder to Employers to be mindful of what steps they must take in order to accommodate reasonable adjustments, which may in some circumstances give rise to an argument of pay protection. Moreover, in the event that this is not a feasible step for the Employer, thought will need to be applied as to the business rationale of any subsequent changes which they are likely to make in the future in order to justify this position.