A recent ruling provides useful guidance for employers about their legal duty to make reasonable adjustments to pay to account for an employee’s disability and whether it includes maintaining that employee’s previous level of pay if they move to a post which pays less than their former one.
In Aleem v E-Act Academy Trust Ltd, Mrs Aleem was a science teacher who suffered mental illness which constituted a disability. After considerable time off, she returned to work as a cover supervisor. This post would normally attract a lower salary, but, for a probationary period of three months plus a further period during which a grievance and subsequent appeal were dealt with, she was still paid at the higher rate as a teacher.
Following the grievance process, Occupational Health (OH) advice indicated that Mrs Aleem remained unfit to return to a teaching role and that this would remain the case in the long-term. OH confirmed that she was fit to undertake the role of cover supervisor.
In November 2016, when Mrs Aleem accepted the cover supervisor role on a permanent basis, the Trust made it clear that she would receive the going rate for that position which was lower than her previous salary. However, Mrs Aleem brought a claim against her employer for disability discrimination, claiming that by not maintaining her teacher salary, her employer had failed to make a reasonable adjustment for her disability, arguing that it would have been a reasonable adjustment under section 20 of the Equality Act 2010 to have continued the higher pay into the future.
In rejecting her claim, the Employment Tribunal (ET) accepted that it was reasonable for Mrs Aleem to expect the higher pay rate to continue in the period when the grievance and subsequent appeal were dealt with as well as during her probationary period, but not into the future. It held that there was no formal obligation to do so and took into account evidence of the potential cost and the financial pressures already on the Trust.
The Employment Appeal Tribunal (EAT) dismissed Mrs Aleem’s appeal, holding that this decision was open to the ET to take on the facts. It had properly taken into account the two leading cases here. In O’Hanlon v Commissioners for HMRC  the Court of Appeal held that, although wage continuation is not legally ruled out, it would be a rare case where it would be found to be a reasonable adjustment. A previous EAT decision in G4S Cash Solutions (UK) Ltd v Powell  was distinguished because of an assurance given to Mr Powell that the previous higher pay level would be maintained indefinitely as part of a package for his return to work, circumstances which did not apply in Mrs Aleem’s case.
On the question of financial impact, the judgment said that it is not the law that an employer can only resist a claim for continued existing pay if it can show pressing financial pressures. Instead, this is just one of the factors that an employment tribunal can take into account and here the EAT said that the original tribunal had properly performed that balancing act and upheld its decision.
Although each case will turn on its own facts, this decision is a gold star for employers facing similar circumstances, but tribunals could teach an employer a harsh lesson if it does not do its homework and hastily promise to indefinitely maintain an employee’s previous level of pay if they have to move to a post which pays less than their former one.