5th October 2016
Reasonable Adjustments and Pay Protection
The Employment Appeal Tribunal (EAT) has considered the issue of whether pay protection can amount to a reasonable adjustment under the Equality Act 2010, applying this to an employee who moved into another role because of his disability.
Employers have a duty to make reasonable adjustments where it knows or ought to know that an employee has a disability and there is a provision, criterion or practice which places them at a substantial disadvantage when compared to those who do not have disabilities.
Here, the employee worked as an engineer maintaining the employer’s ATM machines. In 2012 he was recognised as disabled resulting from a back condition which made it impossible for him to undertake heavy lifting or work in confined spaces. A new role was created driving and delivering materials. The employee, after a period of sick leave, worked in the new role whilst maintaining his engineer salary. The engineer salary was higher than what would have been offered in the new role.
Later, the employer communicated that the role was temporary and that the employee would have to look to find another vacancy within the business. If none were suitable, he would be dismissed on medical grounds. The employee submitted a grievance stating that the employer was attempting to change his terms and conditions. The employer then decided to make the new role permanent but at a lower rate of pay. The employee would not accept the 10% pay reduction and was dismissed.
The case was eventually brought before the EAT which upheld the decision that the employer should have continued to pay the employee his original, higher, rate of pay. The objective of the legislation is to keep employees in work and pay protection could form part of the package enabling this. There is no reason why maintaining pay cannot be a reasonable adjustment. Financial considerations would always be relevant, however; in this case, the employer had a large number of resources and had paid the employee at the higher rate of pay for around one year which had led him to believe that it was long term.