Employment Tribunal – Oct 2016

If an employee with a disability’s role is changed should you also change their salary in line with the current role?

The Employment Appeals Tribunal has held that an employment tribunal was entitled to find that an employer was required, as a reasonable adjustment, to continue employing a disabled employee in a more junior role involving less physical activity, preserving his existing rate of pay on an indefinite basis. While it will not be an “everyday event”, the Tribunal held that there was no reason in principle why pay protection, in conjunction with other measures, could not be a reasonable adjustment as part of a package of measures to get an employee back to work. Whether it was reasonable for the employer to have to take that step was a separate question, to be determined in the particular circumstances.

An employer has a duty to make reasonable adjustments where it knows (or ought reasonably to know) that a person has a disability and there is a provision, criterion or practice which places the disabled person at a substantial disadvantage compared to those who are not disabled. Failure to make a reasonable adjustment amounts to discrimination.

An employer who is under a duty to make reasonable adjustments is not entitled to require a disabled person to pay any of the costs of complying with the duty.

Mr Powell worked for G4S Cash Solutions (UK) Ltd (G4S) as an SLM engineer, maintaining the company’s ATM machines. He had been employed since 1997 in a variety of roles. He suffered with back pain and by mid-2012 he was no longer fit for jobs involving heavy lifting or work in confined spaces. From this period onwards it was accepted that he was disabled.

In the summer of 2012, G4S created a new role of “key runner” supporting ATM engineers working in Central London. The role involved driving from their depot to various locations to deliver materials to engineers.

After a period of sickness absence Mr Powell began to work as a key runner while retaining his existing salary as a SLM engineer. He understood the change of role to be long-term. By May 2013, G4S was considering discontinuing the key runner role for organisational reasons. They told Mr Powell that the role had not been permanent and invited him to look through a list of alternative roles. If nothing was suitable, he would be dismissed on medical grounds.

Mr Powell presented a grievance, claiming that G4S was attempting to change his terms and conditions. G4S then decided to make the key runner role permanent, but at a lower rate of pay to reflect the fact that it did not require engineering skills. Mr Powell was unwilling to accept the 10% pay reduction this would entail and was therefore dismissed.

The Tribunal held that G4S should have continued to pay Mr Powell at the higher rate of pay, as a reasonable adjustment.

If you have an employee who has a disability, it is important that you take advice when considering reasonable adjustments and/or dismissal. This is a highly complex area of law which can be extremely costly for an employer if it all goes wrong.