Following the recent decision in the case of G4S Cash Solutions (UK) Ltd v Powell [2016] UKEAT 0243_15_2608 employers will now need to pay more attention to pay protection when considering reasonable adjustments for disabled employees.

The Claimant here was disabled and as a result was unable to continue working in his current role as a maintenance engineer. He was moved to a less skilled ‘key runner’ position, supporting engineers where he continued to receive the salary of the more skilled role. After a year the Respondent then attempted to reduce his pay by 10% to reflect his role did not require engineering skills. When the Claimant refused to accept the reduction he was dismissed. The Employment Appeal Tribunal (EAT) found no reason why the duty to make reasonable adjustments would not extend to protecting an employee’s pay. The EAT acknowledged that the facts of this case are not an “everyday event”. However, the issues raised in this case are important for any employer considering making reasonable adjustments.

The implications may be particularly relevant where you have a disabled employee returning to work following disability related absence. If they are on a phased return and only being paid for the hours that they are actually working, does this place them at a disadvantage as a result of their disability and if so, does the employer (as a result of their duty to make reasonable adjustments) have a responsibility to rectify this loss?

Unfortunately, there is no clear answer and it will depend on the circumstances. Some of the factors to consider are the financial resources of the business; other resources that might be available; what you have spent in comparable situations; economic circumstances of the business; and any other indication of what level of expenditure is regarded as appropriate. These factors will all be supportive evidence in reaching your decision. However, it will depend on the facts of each case. The EAT was clear that the employer arguing that this “reasonable adjustment” would cause discontent with other employees was not a sufficient defence and the duty to make reasonable adjustments may require an employer to treat a disabled employee more favourably.

The aim of the legislation is to keep employees in work and case law clearly indicates that an element of cost for an employer is expected as part of their duty to make reasonable adjustments. Therefore if you have a disabled employee returning to work, particularly on a phased return or in a ‘less-skilled’ role then pay protection should be considered when considering appropriate reasonable adjustments, particularly where a reduction in wages would make the employees salary so low that they would be better off not working or on sick pay.

This case shows that pay protection is something employers now need to seriously consider as part of this duty particularly where it will keep an employee in work or help an employee back to work.

If you are considering making reasonable adjustments for an employee it is always worth taking independent advice.

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