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Maintaining a higher level of pay can be a reasonable adjustment

HK
BY Heather Kemmett
Employment law
BG Purple

The law around the duty to make reasonable adjustments is ever-growing. The Employment Appeal Tribunal (EAT) has recently handed down a decision confirming that continuing to employ a disabled employee in a more junior position while preserving their pay at a higher rate can be a reasonable adjustment.

The Claimant worked as an engineer until being afflicted by a back condition which eventually resulted in him being unable to carry out his job. His employer had created a new role of ‘key runner’, whose tasks consisted of carrying out errands and delivering parts to engineers. This was, essentially, a helper position. When the Claimant returned to work he carried out the job of a key runner whilst retaining his previous engineer’s salary, which was around 10% higher than a key runner’s.

 

Some time later, as part of a wider restructure, the employer planned to discontinue the key runner role. The Claimant was told that he could look at alternative vacancies but if there was nothing suitable he would be dismissed on medical grounds. The Claimant raised a grievance on the grounds that he had been led to believe that his move to a key runner role was a long term arrangement. The employer then offered to keep him on as a key runner at a reduced rate of pay. The Claimant rejected this and was subsequently dismissed.

 

He raised a claim for unfair dismissal and disability discrimination- specifically on the grounds that his employer had failed to make reasonable adjustments by not maintaining his pay at the higher level. The tribunal found that the employer had failed in its duty in relation to make reasonable adjustments and that it was required to maintain the claimant’s level of pay.

 

On appeal the EAT upheld the tribunal’s decision and held that there was no reason in principle why an employer could not be required to protect an employee's pay as a reasonable adjustment. The Claimant had been led to believe the key runner role was a long term adjustment and he had been paid on that basis for a year following his return.

 

Of course, what is reasonable for one employer may not be reasonable for another depending on available resources. The EAT said that many measures which it will be reasonable for an employer to take will involve a cost to them. This may be a direct cost such as provision of equipment, training or support or an indirect cost in that the measure will render the disabled worker's employment less productive so the employer is in effect subsidising the employee's wages when compared with non-disabled workers. The EAT took the view that pay protection is no more than another potential form of cost for an employer.

 

However, the EAT also commented that it did not expect it to be an 'everyday event' for an employment tribunal to conclude that an employer is required to make up an employee's pay long term to any significant extent. However, it could be reasonable as part of a package of reasonable adjustments, as it was for this claimant. The EAT also noted that, in changed circumstances, an adjustment may eventually cease to be reasonable, for example if the need for a job were to disappear or the economic circumstances of the business changed.

 

This case is not a green light for disabled employees to expect their employer to be excessively generous in funding adjustments; what is reasonable in any given case will depend in part on the circumstances of the employer; and it is worth noting that in this case the employer was a large company with significant resources. However, the EAT has perhaps been more explicit in this case than it has previously and confirmed that pay protection is not outside the realms of what may be reasonable.

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