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Is protecting pay of a disabled employee a reasonable adjustment?

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Is protecting pay of a disabled employee a reasonable adjustment?

Paul Burton looks at a recent case where it was found that it was not reasonable for an employer to continue to pay teacher's rates to an employee after she'd switched roles and had completed a period of protected pay.

Is protecting pay of a disabled employee a reasonable adjustment? No said the Employment Appeal Tribunal (EAT) in Aleem v E-Act Academy Trust. Ms Aleem was a science teacher and suffered from mental ill health which was agreed amounted to a disability under the Equality Act 2010.

She became unable to continue in her teaching role and had significant periods of sickness absence. In March 2016 she returned to work after one particular bout of sickness absence to carry out a different role. This was that of a cover supervisor which attracted a lower rate of pay.

Protection of pay and eventual reduction

Ms Aleem continued to be paid at her previous teacher rate salary temporarily while she tried out the new role for a three-month probation period.  The protection of her pay was extended when she raised a grievance and then through to a grievance appeal in November 2016.

Thereafter occupational health advice indicated that she remained long-term unfit to return to her teaching role, but was fit to continue with the cover supervisor’s role.

She accepted an offer to continue in that role going forward, but brought a claim to the employment tribunal when her pay was reduced down to that applicable to it.

What did the tribunal find?

The Tribunal dismissed Ms Aleem’s claim that it was a failure to comply with the duty to consider and apply a reasonable adjustment not to continue to pay her at her previous teacher rate of pay from November 2016 onwards. She appealed the decision to the EAT.

How is a reasonable adjustment defined in law?

Ms Aleem’s appeal was dismissed. The Tribunal had correctly directed itself as to the law, and properly concluded, in light of its findings of fact, that it was not reasonable to expect the employer, by way of an adjustment, to continue to pay her at the rates associated with the old role, once the probation period and grievance processes had been completed.

The Tribunal had properly found that it was a reasonable adjustment to do so during those processes, in order to support her return to work; but that these considerations thereafter no longer applied.

What factors make an adjustment reasonable or unreasonable?

The Tribunal was not wrong to take into account the significant additional cost that would be involved in continuing to pay Ms Aleem at the teachers’ rates indefinitely.

It had not erred in also taking account of the evidence of a witness that the employer was facing financial pressures at the time, among other factors, when concluding that the proposed adjustment was not reasonable.

The overall conclusion was, in any event, wholly justified in line with previous case law.

A specialist employment lawyer’s view

Employment Partner Paul Burton says: “It has long been established that protecting a disabled employee’s pay when they either work less hours or in another role that attracts a lower rate of pay is not normally a reasonable adjustment.

The EAT case of G4S Cash Solutions (UK) Ltd v Powell had suggested that protecting an employee’s rate of pay despite doing a lower paid role could be a reasonable adjustment for a disabled employee, but this case demonstrates that case was decided on its particular facts.

The cost to the employer will be a factor as will be the extent of the communication with the employee as to the duration and reasons for changing the pay.”

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