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Can Pay Protection Be a Reasonable Adjustment?

In G4S Cash Solutions (UK) Ltd v Powell (UKEAT/0243/15) the Employment Appeal Tribunal found that, in transferring a disabled employee to an alternative role, protecting their rate of pay was a reasonable adjustment even where the new position would ordinarily attract a lower rate of pay.

Mr Powell had been employed by G4S for a number of years. Over time he developed worsening problems with his back and by the middle of 2012 he was no longer fit for jobs involving heavy lifting. Mr Powell was considered to have a disability for the purposes of the Equality Act 2010.

He returned to work from a period of absence and was transferred to the role of Key Runner but, crucially, he retained the salary he had been earning in the more senior position of SLM Engineer.

By May 2013, G4S was considering discontinuing the Key Runner position and asked Mr Powell to consider alternative positions he might be fit for from a list of vacancies. If nothing suitable could be found, G4S told Mr Powell that he would be dismissed on medical grounds.

The Key Runner role was then made permanent. However Mr Powell was informed that the salary for the role would be around 10% less than that which he had earned as an SLM Engineer, reflecting the more junior position of the Key Runner. He was unwilling to accept the reduction in pay and was dismissed in October 2013.

The Employment Tribunal held that it was a reasonable adjustment for G4S to continue paying the Claimant his usual salary, despite the change in job role. G4S appealed but the Tribunal’s decision was upheld by the Employment Appeal Tribunal.

What does this mean for employers and disabled employees?

As with any situation when assessing reasonable adjustments, what is and what is not considered “reasonable” is judged on the circumstances of each case. In this case, the employer was considered to have substantial resources and the cost to pay Mr Powell the additional amount would have been easily affordable. The additional cost was judged to be no different to the cost of any other reasonable adjustment, such as training or extra support.

Interestingly, one objection advanced by G4S was that it may cause discontent amongst other employees should they become aware of the special treatment afforded to Mr Powell. The Tribunal found little weight in this argument, commenting that it is inherent that the duty to make reasonable adjustments may require the employer to treat an employee more favourably than others.

This case highlights that it is at least possible for the protection of an employee’s pay to be a reasonable adjustment and the Employment Appeal Tribunal acknowledged that whether or not pay protection should be a reasonable adjustment will be down to “single claims turning on their own facts”.

If you require specific advice and guidance on reasonable adjustments for your disabled employees, please contact a member of our Employment Team Tel: 01233 664711.

Please read Reliance on information posted in our Terms of Website Use - see Legal section - before relying on this commentary.

Before relying on this commentary please read the Reliance on information posted section in our Terms of Website Use in our Legal section. Please note that specialist advice should be taken in relation to any specific queries and the information above is provided for general information purposes only.

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