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The law on reasonable adjustments for disabled employees has been around for some and while the statutory test for when the obligation itself is triggered remains complex and technical the concept does import the old fashioned employment law concept of “reasonableness”.

This we might think is susceptible to common sense and predictability. We also have a Statutory Code of Practice on Employment which indicates some of the factors to be taken into account in determining whether a proposed adjustment is reasonable including among others considerations such as whether taking the step would be effective in preventing the disadvantage, practicality, financial and other costs and the type and size of the employer.

However the Code also states that “ultimately the test of reasonableness of any step an employer may have to take is an objective one and will depend on the circumstances of the case.” So far so reasonable but what can this mean in practice?

Could this ever mean that an employer would be obliged to move a disabled employee from a role they cannot perform to a newly created but lesser role which they can fulfil but retain their previous higher salary and therefore be precluded from insisting that the employee accept the true “rate for the job”?

Many, if not most who are prepared to attempt to fairly balance the interests of the employer and the employee might reject such a proposition. In addition there is a recent line of recent case law (in particular the case of O’Hanlon) which has been fairly tough on disabled employees claiming failure to make reasonable adjustments. It has rejected proposed adjustments for the likes of full pay while off sick by reason of a disability on the basis that the real purpose of the legislation is to assist disabled people to obtain employment and to integrate them into the workforce. It is not to treat them as “objects of charity”. The EAT in O’Hanlon rejected the suggestion that it could override the business view on allocation of funds and warned against Tribunals engaging in “wage fixing for the disabled sick”. However it might be said that in the case just out of G4Cash Solutions (UK) Ltd v Powell the EAT has done just that.

Mr Powell worked for G4S Cash Solutions as an engineer responsible for maintaining cash machines. He developed back problems and became unfit for jobs involving heavy lifting or working in confined spaces meaning he met the definition of disability in the Equality Act. On his return to work following a period of sickness absence in summer 2012 his employer offered him a newly created role of “key runner” which involved driving parts to engineers so that they could travel to jobs via public transport. The role did not require the engineering skills his previous role had. Mr Powell accepted the role and was paid the same salary as previously. In May 2013 G4S told Mr Powell that it was considering discontinuing the key runner role. They subsequently indicated that the role would only be made permanent only if Mr Powell accepted a 10% reduction in salary to reflect the fact that the role did not require engineering skills. Mr Powell refused the salary reduction and was dismissed .He claimed a failure on G4S;’s part to make reasonable adjustment by continuing to employ him in the key runner role at his original higher rate of pay. The Tribunal upheld his claim and G4S appealed to the EAT. The key issue on appeal was whether it was reasonable for the Employer to have to let Mr Powell keep his original pay in the new key runner role.

The EAT decided that the Tribunal had been entitled to take the view that it was. There was no reason in principle why the duty to make reasonable adjustments should exclude a requirement to protect an employee’s pay as part of a package of adjustments to counter a disabled employee’s disadvantage. The objectives of the reasonable adjustment duty plainly envisaged an element of cost to the employer and pay protection was simply one form of that which may be reasonable in the particular circumstances. Moreover if the adjustment was reasonable “it is not a matter of charity, but a legal requirement reflecting the expectations of Parliament and Society”.

Comment

What on the face if it might seem an extreme adjustment looks less so if you consider that the Employer was only being required to continue an arrangement which had already been in place for nearly a year and which it had led the employee to believe was long term. The employer was also found to have significant financial resources. In addition G4S’s main reason for not wanting to continue paying the Claimant his old higher rate was said to be discontent from other employees This was branded by the EAT as an “unattractive reason” in circumstances where there was no evidence that any employees had made any complaint about the special treatment given to Mr Powell. Still, in this case the employer was arguably defeated by its own previous flexibility and generosity. If it had never applied pay protection and only offered Mr Powell the key runner job on the basis that he accept the “rate for the job” it could be that outcome might have been different.
The EAT did concede that it did not expect that it would be an “everyday event” for a Tribunal to conclude that an employer is required to make up an employee’s pay long term to any significant extent and it also made clear that in changed circumstances an adjustment may eventually cease to be reasonable “the need for a job may disappear or the economic circumstances of a business may alter”.

That said, the case is undoubtedly a stark example to employers of the very significant scope of the duty to make reasonable adjustments Moreover unlike unfair dismissal law where the “band of reasonable responses” is applicable it is worth remembering that the Tribunal is entitled to substitute its own view for that of the employer as to the reasonableness of any adjustment. There is therefore no legal bar to “wage fixing for the disabled.”

If you have any question about the extent of the duty please get in touch with any member of the Stronachs Employment Team.

Eric Gilligan, Partner

 

Chambers UK 2018

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