Salary protection may be reasonable adjustment
The Employment Appeal Tribunal, has held that the duty to make a reasonable adjustment for a disabled employee, engaged in a lesser role by way of reasonable adjustment, may extend to salary protection.
In the case of G4S Cash Solutions (UK) Limited v Powell, the Claimant was moved from an engineering role to a less skilled role. Initially, the Company protected his pay but the Respondent then proposed reducing his pay by 10%, to reflect the less skilled nature of the role. The Claimant refused to accept the pay cut and was dismissed. The Employment Tribunal found that the dismissal was discriminatory and unfair. The Employment Tribunal held that, in this case, the reasonable adjustment required, extended to maintaining the claimant’s pay.
The Employment Appeal Tribunal found no reason why, in principle, the duty to make reasonable adjustments should not extend to protecting the employee’s pay. The objective of the legislation plainly envisages a cost to the employer and “pay protection” was merely, a form of cost to an employer. The Employment Appeal Tribunal said that the question will always be whether or not it is reasonable for an employer to have to take a particular step in order to avert a disabled employee’s disadvantage.
Each case will turn on its own facts. The Employment Appeal Tribunal observed that it did not expect that employers making up pay would be an everyday event for Tribunals. However, there was no reason why, such an adjustment would not be reasonable in some cases. This case is another illustration of the fact that what may constitute a reasonable adjustment, is not always clear. These issues are often tricky for employers to deal with. What is reasonable, very much depends on the exact circumstances of each case. Employers are advised to take specific legal advice in respect of each situation.