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Does Duty to Make Reasonable Adjustments Extend to Protecting an Employee’s Salary?

Where an employer knows (or ought to know) that an employee has a disability and there is a provision, criterion or practice (PCP) which places the disabled person at a substantial disadvantage compared to individuals who are not disabled, an employer has a duty to make “reasonable  adjustments” to alleviate the disadvantage. For example, the employer might assign different duties to the employee or alter/reduce the employee’s hours of work. Case law has established that the duty to make reasonable adjustments can extend to treating the disabled employee more favourably than others. 

There is no defined list of reasonable adjustments and the case law in this area is always evolving. In the recent Employment Appeal Tribunal (EAT) case of G4S Cash Solutions (UK) Ltd v Powell, the EAT considered whether an employer was required, as a reasonable adjustment, to continue employing a disabled employee in a more junior role, whilst still maintaining his previous (higher) rate of pay.

Mr Powell worked for G4S Cash Solutions (UK) Ltd (G4S) as an engineer, maintaining the company's ATM machines. Due to ongoing back pain, it was no longer suitable for Mr Powell to carry out heavy lifting and so he took on a less skilled 'key runner' position. However, G4S continued to pay Mr Powell at his previous (higher) engineer’s rate of pay for a time. 

Subsequently, however, G4S decided to lower the rate of pay for the ‘key runner’ role by 10%, to reflect the fact that it did not require engineering skills. Mr Powell refused to accept the reduction in his pay and was dismissed.

The Employment Tribunal (ET) found, amongst other things, that G4S was required, as a reasonable adjustment, to employ Mr Powell as a key runner at his original rate of pay. It went on to find that his dismissal amounted to discrimination arising from disability, and was unfair. G4S appealed.

The EAT dismissed the appeal and upheld the ET’s original decision that G4S should have continued to pay Mr Powell at the higher rate of pay, as a reasonable adjustment. The EAT held that, while it will not be an "everyday event" for an employer to provide long-term pay protection, it may be appropriate  and reasonable in certain circumstances in order to get the employee back to work or to keep the employee in work.

What is a ‘reasonable’ adjustment will vary depending on the particular circumstances in question. This case does not mean that is necessary or appropriate in every case to continue to pay an employee at a higher rate if they are redeployed. However the EAT did, in this instance, make the point that there is often an element of cost to an employer in making reasonable adjustments, and 'pay protection' is one such form of cost.

This bulletin is for general guidance purposes only and should not be used for any other purpose.

Brabners is a Limited Liability Partnership