The duty on an employer to make reasonable adjustments for a disabled employee is a familiar one to HR advisors. But it is an area of discrimination law where the boundaries get stretched further and further, year after year. In recent years we have seen Employment Tribunals take the view that certain steps are required as reasonable adjustments that we would never have thought came within that scope when the Disability Discrimination Act 1995 (DDA) was in its infancy.
A recently reported case against G4S, relating to whether pay protection was a reasonable adjustment for one of their disabled employees, got me thinking about how far things have gone.
At the time of its introduction into law under the DDA, the concept of reasonable adjustments for disabled employees was heralded as a ground-breaking way of requiring employers to re-think their workplaces so that their disabled employees could either return to work or remain in work. No other strand of discrimination law gives this type of protection. (As a reminder: an employer has a duty to make reasonable adjustments where it knows (or ought reasonably to know) that a person has a disability. And there is a provision, criterion or practice (PCP) which places the disabled person at a substantial disadvantage compared to those who are not disabled. Failure to make a reasonable adjustment amounts to discrimination.)
At this time, many employers were concerned about the cost of these adjustments. But were perhaps reassured by Government pronouncements that the majority of adjustments would either involve little or no cost or that, if there was a cost attached, they may well still be ‘cost effective’ as opposed to recruiting and training a new member of staff. There is a consistent theme from reported cases looking at what amounts to a reasonable adjustment. This is that an adjustment will only be reasonable if its effect is either to keep the disabled employee in work or enable them to return to work.
A long list
Over the last 20 years, we have seen the concept of what a reasonable adjustment is tried, tested and stretched to consider endless kinds of adjustment that could be made. As a result of case law over these two decades, we know that they can include:
- Making adjustments to premises.
- Allocating some of a disabled person’s duties to another person.
- Transferring a disabled person to fill an existing vacancy.
- Altering a disabled person’s hours of working or training.
- Assigning a disabled person to a different place of work or training.
- Allowing a disabled person to be absent for rehabilitation, assessment or treatment.
- Giving, or arranging for, training or mentoring.
- Acquiring or modifying equipment.
- Modifying procedures for testing or assessment.
- Allowing a disabled employee to take a period of disability leave.
- Modifying disciplinary or grievance procedures.
- Adjusting redundancy selection criteria.
- Modifying performance-related pay arrangements.
(This is not an exhaustive list, as they say.)
How much is cost a factor?
There are several factors to take into account when deciding whether an adjustment is reasonable. But, as might be imagined, many cases have centred on the issue of the cost of the adjustment. We know, from Employment Appeal Tribunal (EAT) guidance, that cost is “one of the central considerations in the assessment of reasonableness”. This was said in a case where the EAT rejected an argument that it should have been reasonable for the Foreign and Commonwealth Office to pay £250,000 a year to provide lip-reading services to a senior official who was profoundly deaf working in Central Asia.
What about pay protection?
One area that has seen surprisingly little by was of case law action is the concept of ‘pay protection’ for disabled employees. In O’Hanlon v Commissioners of HM Revenue & Customs, the EAT held that an employer would only very rarely be obliged, as a reasonable adjustment, to give more sick pay to a disabled person than it would otherwise give to a non-disabled person on sick leave. The EAT commented that the purpose of the disability discrimination legislation was to enable disabled persons to play a full part in the world of work, not to “treat them as objects of charity”.
We now have a very recent relevant Employment Tribunal case. which looked at the extent to which an employer may be required to maintain a disabled employee’s existing salary level when transferring them to a new role, as a reasonable adjustment. In this new case, Mr Powell worked for G4S Cash Solutions (UK) Ltd as a maintenance engineer, maintaining the company’s ATM machines. He suffered with back pain. Eventually he was no longer fit for jobs involving heavy lifting or in confined spaces. It was accepted that he was disabled within the meaning of disability discrimination law.
Around this time, G4S created a new role of “key runner” supporting ATM engineers working in Central London. The role involved driving from their depot to various locations to deliver materials to engineers. This enabled the engineers to travel by public transport. After a period of sickness absence, Mr Powell began to work as a key runner. But during that time he retained his existing salary as an engineer. He thought this change of role to be long-term. After about a year, G4S was considering discontinuing the key runner role for organisational reasons. G4S then decided to make the key runner role permanent. However, it was at a lower rate of pay to reflect the fact that it did not require engineering skills. Mr Powell was unwilling to accept the 10% pay reduction that this would entail and was dismissed.
EAT finds that long-term pay protection could amount to a reasonable adjustment
The EAT had no trouble in deciding that that while it will not be an “everyday event” for an employer to provide long-term pay protection in this situation, there would be cases where it could be a reasonable adjustment as part of a package to get an employee back to work or to keep an employee in work.
Reading between the lines, the ET (and the EAT) didn’t have much time for the employer here. It was certainly frowned upon that G4S hadn’t really kept Mr Powell in the picture. He was unaware whether his new role as a key runner was temporary or permanent. G4S argued that if it continued to pay Mr Powell at the engineer’s rate when he was not actually doing their job then there would be “discontent from other employees”. That argument was dismissed in short shrift. There may well have been some gripes from other engineers in the pub on Friday. But no evidence was actually produced of employee ‘discontent’.
I do have some sympathy with G4S here. They created and maintained a new role that Mr Powell was able to do in the long-term with his disability. They didn’t seem to get any credit for that from the ET. Surely that was the adjustment which enabled Mr Powell to continue working – as is the key test for a reasonable adjustment? Did the 10% salary difference between the engineer’s role and the key run role really make the difference between Mr Powell being able to work and not being able to work? There seems to have been no discussion about this.
This case is not saying that pay protection must be considered in all cases. Nor is it saying that it must be maintained permanently. But as a possible adjustment it cannot be ignored. The EAT 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 didn’t look at the issue of part-time working. However it doesn’t seem much of a stretch to apply the same pay protection principles to a case where a disabled employee is unable to fulfil their full-time role anymore but could do it part-time. Would it be a reasonable adjustment to continue paying at full rate? I think if you had asked most employment lawyers before the Powell case they would have said ‘definitely not’; now, I am not so sure.
So pay protection looks like being here to stay as one that employers will need to consider in appropriate cases. Like several other decisions on reasonable adjustments, it doesn’t appear to fit the original concept of a reasonable adjustment being something that keeps an employee in the workplace. However this is in the same direction of travel that we have seen for many years now with this particular aspect of disability rights.