Employers are under duty to make reasonable adjustments to help disabled job applicants and employees in certain circumstances. This duty applies where a "provision, criterion or practice" applied by or on behalf an employer puts a disabled employee at a substantial disadvantage when compared to employees who are not disabled. In G4S Cash Solutions (UK) Ltd v Powell UKEAT/0243/15/RN, the EAT considered whether protecting an employee's pay comes within the scope of a reasonable adjustment.
The facts
Mr Powell (the Claimant) was employed by G4S Cash Solutions (UK) Ltd (G4S) as an engineer to maintain cash machines. He developed problems with his back and became unfit for his usual jobs, which required heavy lifting and working in confined spaces. It was accepted the Claimant's back problem amounted to a disability.
Following a period of sickness absence the Claimant took on a support role which had reduced physical demands. However, he preserved the same rate of pay as his original role as an engineer. After 12 months in this post, G4S tried to reduce the Claimant's salary to a more appropriate rate for the support role he was undertaking as it did not require the engineering skills associated with the higher rate of pay. The Claimant refused to accept this discount and was dismissed.
The decision
The Claimant asserted that G4S should have allowed him to remain in his support role and continue to receive his higher engineer's rate of pay. He claimed that by failing to do so, G4S was in breach of its duty to make reasonable adjustments.
The EAT found that whilst pay protection is not automatically a reasonable adjustment, there are certain circumstances where it can be. The EAT concluded that this was a situation in which such an adjustment would be reasonable and should apply. It based its decision on the fact there was no sensible reason the duty to make reasonable adjustments should exclude any requirement to protect an employee's pay in conjunction with other measures to counter the disadvantage suffered by that employee because of his disability. Specifically, it highlighted that protecting an employee's pay in these circumstances is no more than another form of cost for an employer, equivalent to the cost of providing extra training or support in other cases. Further, it identified that additional cost to an employer will often be a feature of the adjustment that an employer will be required to make for a disabled employee in any case.
Comment
This case demonstrates that, whilst typically employers should focus on the practical steps they can take to make reasonable adjustments, there are times when it is appropriate to make a direct financial adjustment to help keep a disabled employee in the workplace. Though it is fact-specific, this judgment reiterates that the key question for employers in cases such as this remains, "what is reasonable in the circumstances?" considering the adjustment contemplated and the resources available to the employer.
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