We report on a case where, due to his disability, an employee was given reduced duties, but the employer wanted to reduce his salary accordingly. Were they allowed to do this?

Background

Mr Powell was employed by G4S Cash Solutions in a variety of roles before he developed a back complaint which meant he could no longer do any heavy lifting. It was accepted that this amounted to a disability.

G4S moved him to reduced duties which did not require heavy lifting. Some time after this, they attempted to reduce his pay by 10% in line with the reduced duties. When Mr Powell refused, they dismissed him, and he brought a claim for disability discrimination.

At the first hearing, the Employment Tribunal decided that G4S were guilty of failure to make reasonable adjustments. It said that they should have kept Mr Powell on his original pay despite the fact that he was working reduced duties.

G4S appealed this, and relied in part on the decision in O’Hanlon, where the EAT had previously held that giving more pay to a disabled person would only very rarely amount to a reasonable adjustment.

In this case however, the EAT disagreed with G4S, confirming the Employment Tribunal’s view that, in certain cases, it may indeed be reasonable to protect a disabled person’s pay. Their reasoning was that reasonable adjustments often involve extra payment having to be made by employers. G4S had ample financial resources.

Furthermore, the decision in Archibald meant that employers may be under a duty to redeploy disabled employees to alternative roles, even where they are not the best candidate.

In principle, therefore, there is no reason why the reasonable adjustment rules should not include pay protection.

In this case, it was relevant that Mr Powell had been paid at his original salary for around a year before G4S attempted to change it. Furthermore, G4S’s reason for wishing to reduce Mr Powell’s pay was not an attractive one, in the eyes of the Employment Appeal Tribunal; they had argued that they were worried about discontent from other employees.

Implications

Each case will obviously vary hugely and depend on its own facts, but pay protection should now be on every employer’s checklist when considering reasonable adjustments.

 

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Updates: For employers: Discrimination | For employees: Discrimination |

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