Pay protection may amount to a reasonable adjustment

This year, the tribunal was faced with the question of whether the duty on employers to make reasonable adjustments may extend to a duty to continue to pay employees with a disability, the same salary, after being moved to a lower skilled role.

In the case of G4S Cash Solutions (UK) Ltd v Powell [2016] the Claimant suffered a back injury and following a period of absence, he returned back to work to a different role. The Claimant’s condition, for the purposes of the Equality Act 2010, amounted to a disability. Following his injury, he was no longer able to perform heavy lifting duties required of him as an Engineer at the Company, so the Respondent assigned him to a new lower skilled role as a “Key Runner” and maintained the pay he was on as an Engineer.

The Claimant was paid the same remuneration as a Key Runner for an entire year, and as such, believed that the new role he was assigned to was a permanent one.  After a year had passed, the Respondent Company sought to reduce the Claimant’s salary to the appropriate rate for a Key Runner. The difference in pay to the Claimant was £2,484 per annum. The Claimant refused to accept the reduction in his pay and as a result was dismissed.

The Respondent claimed that the reassignment of the Claimant to the role of Key Runner was not intended to be long-term as the Claimant was not formally offered the new role nor did he accept permanent reassignment. Nevertheless, the Respondent, through their conduct, accepted that they had allowed the Claimant to believe that the variation was permanent.

The EAT considered the guidance set down in the Statutory Code of Practice for Employment 2011 which states that: “Even if an adjustment has a significant cost associated with it, it may still be cost-effective in overall terms – for example, compared with the costs of recruiting and training a new member of staff – and so may still be a reasonable adjustment to have to make”.

The Respondent’s argument was that to continue to pay the Claimant the salary he was paid as an Engineer was likely to cause discontent within the workforce. The EAT found this to be an insufficient reason and concluded that the Respondent should have continued an arrangement which was in place for a year and which it had led the Claimant to believe to be long-term.

The EAT upheld the Claimant’s complaints of unfair dismissal and disability discrimination.

Dominic Bonham