G4S Cash Solutions (UK) Ltd v Powell
This question for the Employment Appeals Tribunal (EAT) in this case was whether the employers duty to make reasonable adjustments for a disabled employee extended to continuing to pay a higher salary when an employee is moved to a lesser role. The EAT decided it did indeed!
Background
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 (PCP) 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. The duty is set out in section 20(3) of the Equality Act 2010, which provides:
"Where A's provision, criterion or practice (PCP) puts a disabled person at a substantial disadvantage in comparison with those who are not disabled, A must take such steps as it is reasonable to have to take to avoid the disadvantage."
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 (section 20(7), Equality Act 2010).
Facts
Mr Powell worked for G4S Cash Solutions (UK) Ltd (G4S) as a single-line maintenance (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 under the Equality Act 2010.
In summer 2012, G4S created a new role of "key runner" supporting ATM engineers which involved driving from their depot to various locations to deliver materials to engineers. This enabled the engineers to travel by public transport.
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 vacancies. 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 dismissed on 8 October 2013.
Tribunal Decision
The Employment Tribunal found the dismissal to be discriminatory and unfair, and that the reasonable adjustments required extended to maintaining the Claimant's former pay in his new role.
G4S appealed.
EAT Decision
The EAT found no reason in principle why the duty to make reasonable adjustments would not extend to protecting an employee's pay (along with other measures) to counter a disabled employee's disadvantage. The objectives of the legislation plainly envisage an element of cost to the employer, and 'pay protection' was but one form of cost to an employer. The question will always be whether it is reasonable for an employer to have to take that step to avert a disabled employee's disadvantage.
The EAT concluded that while it will not be an "everyday event" for an employer to provide long-term pay protection in this situation, cases can be envisaged where this may be a reasonable adjustment as part of a package to get an employee back to work or to keep an employee in work. The financial considerations will always have to be weighed in the balance by the tribunal.
However, the EAT also stated that an adjustment may eventually cease to be reasonable in changed circumstances e.g. if the need for a job were to disappear or the economic circumstances of the business changed.
Comment: The EAT commented that the purpose of the disability discrimination legislation was to enable disabled persons to play a full part in the world of work, not to "treat them as objects of charity". In doing so the case highlights the extent to which employers are required to consider a range of reasonable adjustments to keep disabled staff in work. Each case will depend on its own facts and what is deemed to be “reasonable” for a particular employer in the light of its size and resources. However, businesses should be aware that it might be a reasonable adjustment to maintain / “ringfence” the higher rate of pay if an employee is moved to a more junior role, rather than simply considering obvious less expensive adjustments such as altering duties, hours, retraining etc.
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