Disability and Pay

G4S Cash Solutions (UK) Ltd v Powell This case concerned whether a requirement to protect pay at a higher rate was a reasonable adjustment under s20 Equality Act 2010. From May 1997, the claimant was employed in various roles with the company including a driver, a vault officer, an FLM engineer and, from 2011, a SLM engineer. SLM engineers were better trained than FLM engineers so were better paid. By mid-2012, worsening back problems meant the claimant was no longer fit for jobs involving heavy lifting or working in confined spaces; he had a disability under equality laws. In the summer of 2012, the respondent created a new support role of “key runner”. After discussions about reasonable adjustments with his line manager, the claimant undertook this role but kept his original SLM engineer salary. By May 2013 the respondent was considering discontinuing the key running role and the claimant was told on 24th May 2013 that the role was not permanent and he was asked to look at alternative vacancies. The claimant asked, and was told, that if there were none suitable he would be dismissed on medical grounds. The claimant consulted with solicitors who argued the respondent was changing terms and conditions. The respondent decided to make the role permanent and confirmed it was available for the claimant but at the rate of an FLM engineer; a reduction in basic salary of around 10%. The claimant was not willing to accept this reduction and, as there was no other suitable vacancy, he was dismissed on 8th October 2013. The respondents remained willing to offer the claimant the key running role but only at the rate of pay for the role. When examining the reasonable adjustments claim, the EAT found that the ET had correctly identified a PCP of “the requirement to be fit to do the SLM work” and that the claimant was at a substantial disadvantage because he was unable to carry out these duties so wasn’t contractually entitled to this rate of pay. The issue in contention was whether it was a reasonable adjustment to protect the claimant’s pay at his previous rate. The EAT reiterated that the duty to make reasonable adjustments can lead to disabled employees being treated more favourably than others are. The duty does not exclude any requirement for an employer to protect their employee’s pay so it will depend on whether this is reasonable to do. The objective of the duty is to keep employees in work and, whilst it will not be an everyday conclusion that employers are required to make up pay long term, this may be a reasonable adjustment for an employee as a package of reasonable adjustments. The financial considerations will have to be weighed in balance by the employer. Care Sector Lead Consultant, Lorna Stafford understands that this case can make employers’ decisions much harder. “The key to situations like this is that it will not always be the case that employers have to maintain higher pay levels for disabled employees who take a different role. Every case will be different because the facts will be different and this, ultimately, determines the employer’s actions.”

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