Where an employee is disabled (as defined in the Equality Act 2010) employers are often required to make reasonable adjustments to enable the employee to remain in, or to return to work in, the role they were employed to do. If this is not possible further alternatives must be considered. A reasonable adjustment is a step or action which when taken by the employer has the effect of removing a substantial disadvantage that affects the disabled employee but does not impact on a comparable employee who does not have their disability in the same way.<\/p>\n
Employers are required to make reasonable adjustments under three headings. They must make adjustments to a provision, criterion or practice, for example, by increasing the trigger point in respect of sickness absence policies where the sickness absence is disability related. Further, they are required to make adjustments to physical features which put the disabled employee at a disadvantage for example, by putting in a wheelchair ramp for an employee with mobility problems. In addition, employers are also required to provide auxiliary aids (including a service) where it would have the effect of removing a substantial disadvantage, for example, by providing a hearing loop to assist employees with hearing problems.<\/p>\n
In considering adjustments it must be established that the adjustment would remove a substantial disadvantage from which the employee suffers and whether that adjustment is \u2018reasonable\u2019. \u2018Reasonable\u2019 is a difficult term to get to grips with as what is reasonable for one employer may not be reasonable for another. Reasonableness takes into account the practicality of making the adjustment, the size of the employer, the resources of the employer and the cost of making the adjustment.<\/p>\n
It is therefore interesting to consider the decision of the Employment Appeal Tribunal in G4S Cash Solutions (UK) Limited v Powell<\/em><\/span> in respect of an adjustment to a provision, criterion or practice. The facts of this case are that Mr. Powell (P) was employed by the Company (G4S) as an engineer. When he became disabled as a result of a back injury G4S gave him a newly created role as \u201ckey runner\u201d in which he was required to drive key parts to other engineers to enable them to travel across London by public transport. G4S did not tell P that this role was a temporary role, neither did they discuss remuneration or changing his terms and conditions of employment. P therefore continued to be employed at the rate of pay he received as an engineer and considered this to be a permanent role.<\/p>\n The following year G4S informed P that the role was no longer required and that it had only been a temporary adjustment. As such he would be dismissed on ill health grounds as he could not undertake his original role, unless a suitable alternative role could be found for him. P argued that he was never told that the role was a temporary adjustment and that his terms of employment had been changed so that he was now employed as a key runner. G4S subsequently agreed to retain the role of key runner but informed P that his rate of pay was to be reduced due to the unskilled nature of his role.<\/p>\n P refused to accept such a change and argued that the only agreed change to his contract had been the job title and duties and that a pay reduction amounted to a unilateral variation of his contract. P was dismissed as a result of refusing to accept the pay cut and pursued a claim in the Employment Tribunal (\u201cET\u201d) on the basis that G4S had failed in its duty to make reasonable adjustments and that he had been unfairly dismissed.<\/p>\n The ET held that there had been no agreed variation to P\u2019s terms of employment such that he was now permanently employed as a key runner. However, it also found that it was a reasonable adjustment for G4S to employ P as a key runner on his original rate of pay.<\/p>\n G4S appealed to the EAT against the decision that it had failed to make a reasonable adjustment and P cross-appealed against the finding that there had been no permanent change to his contract when he was given the role of key runner.<\/p>\n In respect of P\u2019s cross-appeal the EAT found that the ET was wrong in respect of this point. P\u2019s contract had been varied in respect of his job title and role as the parties had agreed to this and P had been given no suggestion that such a change was not permanent. It went on to say that an employer cannot impose an adjustment on an employee without their agreement. An employer can propose an adjustment and the employee can agree to it, but if it is incompatible with the terms of the employment contract, such as a reduction in pay, and the employee does not agree the adjustment cannot be implemented unilaterally.<\/p>\n In respect of G4S\u2019s appeal, the EAT held that the ET was correct to find that it was a reasonable adjustment to continue to employ P in the new role at his old rate of pay. The interesting point here is that the EAT explicitly states that pay protection can be a reasonable adjustment in conjunction with other measures. As set out above, the key is whether the adjustment is \u2018reasonable\u2019. There is often an additional cost to the employer in making any reasonable adjustment, for example, the cost of purchasing additional equipment. As such it held that there is no distinction between that cost and the potential cost of maintaining an employee\u2019s pay where they are unable to fulfil their original role on the same terms.<\/p>\n However, this case does not give employees the right to unlimited pay protection where they can no longer carry out their role and are offered an alternative of some kind. It simply makes it clear that employers must consider the cost of pay protection as an adjustment where it could offer a solution. In this particular case the employer had substantial resources and therefore the cost of less than \u00a32,500 per year to retain the employee and not discriminate against him was considered reasonable when balanced against its resources and the potential recruitment costs. It also pointed out that employers are expressly permitted to treat disabled employees more favourably in such cases if it would allow the employee to remain in employment (or gain employment).<\/p>\n I therefore suggest that employers carry out a cost assessment of maintaining the employee\u2019s pay against other potential adjustments and the costs of recruiting a new employee and training them to do the job. As an example, it may be reasonable to provide pay protection but on the basis that the pay is then red circled and will not increase until the role that is being fulfilled as an alternative reaches that level of pay. Alternatively, it may be reasonable to offer graduated pay reductions after a limited period in order to help the employee adjust to a reduced rate of pay. Further, employers should be careful in what they agree with employees and ensure it is properly documented. However, the most important point to remember is that adjustments must be agreed and cannot simply be imposed. As such, where an employee refuses any such proposal it will be necessary to consider any alternatives (and to document the investigation into those alternatives) before reaching a conclusion.<\/p>\n","protected":false},"excerpt":{"rendered":" Where an employee is disabled (as defined in the Equality Act 2010) employers are often required to make reasonable adjustments to enable the employee to remain in, or to return to work in, the role they were employed to do. If this is not possible further alternatives must be considered. 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