The recent Employment Appeal Tribunal (EAT) decision in G4S Cash Solutions (UK) Limited v Powell makes it clear that an employer's duty to make reasonable adjustments under the Equality Act 2010 may extend to maintaining the salary of a disabled employee who has been moved to a less skilled role.
Under section 20 of the Equality Act, an employer is required to make reasonable adjustments where it knows or ought reasonably to know that a person has a disability, and a provision, criterion or practice places that person at a substantial disadvantage in comparison with non-disabled people.
Powell worked for G4S Cash Solutions UK Limited (G4S) as a single-line maintenance engineer. He had ongoing back problems and by 2012, it was accepted that he had a disability. Around the same time, G4S created a new role of "key runner" to support its engineers. Powell began work as a key runner on the same salary as before, although his new role did not require the same level of engineering skills and training. After 12 months, G4S informed him that he could continue as a key runner on a lower rate of pay (a reduction of around 10 per cent), accept a suitable alternative position or face dismissal on medical grounds. Powell refused to accept the lower rate of pay and was dismissed in October 2013.
Tribunal and EAT
An employment tribunal found that continuing to employ Powell as a key runner on a permanent basis and on his previous salary was a reasonable adjustment G4S was required to make. The difference in the rate of pay was around £2,480 a year. Taking into account Powell's age, he was likely to be employed for another 15 years. The total cost of the adjustment, around £37,000, was relatively small in the long term. The tribunal noted that G4S had "very substantial resources" and that the additional annual cost would have been "easily affordable".
On appeal, the EAT confirmed that pay protection "may be a reasonable adjustment for an employer to have to make as part of a package of reasonable adjustments to get an employee back to work or keep an employee in work". It found the following.
This decision illustrates that there may be situations where maintaining the pay of a disabled employee who has moved to a less skilled role forms part of a package of reasonable adjustments. Although this is not expected to be common, it is possible in principle. Employers cannot therefore rule out pay-related adjustments when assessing their obligations under the Equality Act. Ultimately the question will always be what it is reasonable in the circumstances, taking into account all relevant factors, including those set out in the Statutory Code of Practice on Employment, such as the cost of making the adjustment, its effectiveness and the employer's financial or other resources.
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