Duty to make reasonable adjustments may require employers to protect a disabled employee's pay
Does the Equality Act duty to make reasonable adjustments for a disabled employee extend to protecting the employee’s pay? In some cases, yes, according to a recent case.
In that case, the Claimant worked for G4S Cash Solutions (G4S) as an engineer responsible for maintaining the company's ATM machines. He suffered back pain and became unfit to continue to work as an engineer. G4S had a more junior role of ‘key runner’ supporting ATM engineers by delivering the materials that the engineers needed. The Claimant began to work as a key runner while keeping his existing salary as an engineer.
After protecting the Claimant’s pay for a year, G4S told the Claimant that it was only prepared to continue to employ him in the new role if he accepted a 10% pay cut to reflect the fact that the role was less skilled, and dismissed the Claimant when he refused to accept these terms.
An employment tribunal upheld the Claimant’s claim for disability discrimination, ruling that G4S was required, as a reasonable adjustment under the Equality Act 2010, to continue to employ the Claimant as a key runner at his higher rate of pay.
The EAT dismissed G4S’s appeal, confirming the tribunal's decision that G4S should have continued to pay the Claimant at the higher rate of pay, as a reasonable adjustment.
Although it would not be an everyday event, the EAT said it was possible to envisage cases where long term pay protection could be a reasonable adjustment for an employer to make to get an employee back to work or keep an employee in work in accordance with the objective of the Equality Act.
The question will always be whether it is reasonable for the employer to have to take that step in the circumstances of each case.
The EAT said that, in changed circumstances, an adjustment may cease to be reasonable, for example, if the need for a job were to disappear or the economic circumstances of the business changed.
The decision of the EAT was not that pay protection is always a reasonable adjustment, just that it can be a reasonable adjustment, depending on the circumstances, and in particular the resources available to the employer.
In this case, the tribunal was influenced by the fact that G4S has substantial resources and could easily afford the additional annual cost of employing the Claimant.
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