Reasonable adjustments: consent and pay protection
Monday 26th September 2016
In G4S Cash Solutions (UK) Ltd v Powell, the EAT has considered the scope of an employer’s duty to make reasonable adjustments for a disabled employee under the Equality Act 2010.
Mr Powell worked for GCSU as an engineer, responsible for replenishing ATMs with cash and carrying out maintenance. He developed back problems and, by mid-2012, could not carry out heavy lifting or work in confined spaces. Following a period of sickness absence, Mr Powell returned to work in a newly created role of ‘key runner’. This involved driving from a depot to deliver parts and keys to ATM engineers. GCSU continued to pay Mr Powell his engineer’s salary.
In May 2013, GCSU decided to discontinue the key runner role for operational reasons. Mr Powell was given a list of alternative vacancies to consider and informed that he faced possible dismissal on medical grounds. Mr Powell submitted a grievance, arguing that GCSU was attempting to change his terms and conditions. Subsequently, GCSU decided to make the key runner role permanent, but at a lower rate of pay as it did not require such advanced engineering skills. Mr Powell was unwilling to accept the 10% pay reduction and was dismissed on 8 October 2013.
The ET rejected Mr Powell’s argument that there had been a permanent variation to his contract, but stated that an employer is entitled to insist on an adjustment without consent. However, the ET also held that GCSU was required to employ Mr Powell as a key runner on his original salary. GCSU appealed, as did Mr Powell in respect of the variation point.
The EAT overruled the ET on the consent point, but upheld the finding to maintain Mr Powell’s salary. In the EAT’s view, there was no reason why the duty to make reasonable adjustments could not include pay protection measures. Pay protection is comparable to the cost of providing extra training or support, and there is no reason in principle why one should constitute a reasonable adjustment but the other should not. However, whether it is reasonable should always be considered; it would not be an everyday event for an ET to conclude long-term pay protection was necessary. The EAT did note that if circumstances changed, an adjustment may no longer be reasonable, for example if a role was no longer needed.
All information in this update is intended for general guidance only and is not intended to be comprehensive, or to provide legal advice.