Reasonable Adjustments can include higher pay

G4S Cash Solutions (UK) Ltd v Powell

The Employment Appeals Tribunal (EAT) has said the duty to make reasonable adjustments for a disabled employee can extend to continuing to pay a higher salary when an employee is moved to a lesser role in this case.

Due to disability, the Claimant had been moved from an engineering role maintaining cash machines to a less skilled 'key runner' role. After initially having his pay protected, the Respondent proposed reducing the Claimant's pay by around 10%, dismissing the Claimant when he refused the pay cut. 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.

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.

However, the EAT did not expect that requiring employers to make up pay would be an 'everyday event' for tribunals, and in changed circumstances such an adjustment may cease to a reasonable one an employer has to make.

In Practice

This will be a troubling decision for employers as previous case law has suggested that they do not have to go as far as paying a disabled employee more than is normal for a particular role as a reasonable adjustment. The EAT were at pains to make it clear that this result will be an unusual one, but nevertheless employers will need to look carefully before refusing to pay an disabled employee a higher salary and it is recommended advice is sought.

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