Under the Equality Act 2010, an employer has a duty to make reasonable adjustments for disabled employees. The issue in claims is often whether adjustments were reasonable once the issue of whether they are disabled within the meaning of the Act 2010.
In the recent EAT case of G4S Cash Solutions (UK) Ltd v Powell, the EAT held that it was entirely possible that as a reasonable adjustment an employer should be required to preserve a higher rate of pay on an indefinite basis. Whether or not that was reasonable in the circumstances was a separate question which needed to be determined. Whilst this would not be the “everyday event” there was no reason why in principle pay protection could not be required.
The EAT also held that where an employer proposes an adjustment which is incompatible with the terms of the contract, the employee is entitled to decline it. Therefore “adjustments” can only be made with the employee’s consent. This is an important point to note for employers as this can sometimes arise when the employee is asked to undertake a phased return or another role as a temporary measure.
The facts of this case briefly were that P worked for GCSU Ltd as an engineer. Over the years, he developed back problems and, became unfit for jobs involving heavy lifting or working in confined spaces. He took some time off work as a result and then on his return he started in a new more junior role delivering parts to engineers. The employer continued to pay P his engineer’s salary for the more junior role and P understood this to be a long term arrangement.
However, the following year, the employer considered the role may be redundant and gave P a list of alternative vacancies to consider as an alternative to dismissal on medical grounds. P raised a grievance, arguing that his employer was attempting to change his terms and conditions. The employer then decided to make the role permanent, but at a lower rate of pay to reflect the fact that it did not require engineering skills. P was unwilling to accept the 10% pay reduction this would entail and was dismissed. He brought a claim for unfair dismissal and disability discrimination in the Tribunal which was upheld in so far as the Tribunal found his dismissal to be both unfair and that it was discrimination arising from disability. Both parties then appealed the decision on different grounds.