Reasonable adjustments and changes to a contract of employment

The Equality Act 2010 sets out a duty on employers to make reasonable adjustments for disabled workers to remove any obstacle from them being able to do their work. There has been a large number of cases on the meaning and implementation of this duty.

The courts and Employment Tribunals have accepted that in some instances the implementation of the duty to make reasonable adjustments can in fact put a disabled worker in a more advantageous position than a non-disabled colleague (see Archibald v Fife).

A frequent issue that arises with the duty to make reasonable adjustments is the fact that the employee's terms and conditions of employment may need to be changed, either permanently or temporarily. The question then arises as to whether or not the new terms have to be agreed with the employee or not (ie can the employer simply go on and impose them in order to achieve the reasonable adjustment that has been identified)? A further common question is how far a disabled person can require an employer to adjust  the pay for the employee, ie usually a question of how long they should maintain a rate of pay if the disability has prevented the employee from continuing his/her normal duties.  These questions have been the subject of the recent case in the Employment Appeal Tribunal (EAT) of G4S Cash Solutions (UK) Ltd v Powell.

The case involved a Mr Powell, who was employed as engineer responsible for maintaining automatic teller machines (ATMs) in London. He developed a back problem which resulted  in him becoming unable to carry out the heavy lifting and working in confined spaces that was required in his work. There was a period of sickness, after which Mr Powell returned as a "key runner". The role involved him travelling from his employer's depot to deliver parts and keys to its ATM engineers. The employer continued to pay his original rate of pay as engineer despite him carrying out the lower paid role of the "Key runner". Mr Powell understood this to be a long -term arrangement.

Some months later the employer was considering discontinuing the role of "Key runner." Mr Powell was then told that the role was not permanent and then gave him a list of alternative roles to consider. He was told that if he did not accept any of the alternative roles that his employment would be terminated on medical grounds. Mr Powell consulted solicitors, and submitted a grievance stating that the company was trying to impose a change to his terms of employment (ie without his consent). The employer decided to make the Key runner role permanent, but on a lower rate of pay (by some 10%) that Mr Powell had received as an engineer, and had continued to receive while acting as a Key runner. Mr Powell refused to accept the lower rate of pay, and so his employment was terminated.

Mr Powell took a claim to the Employment Tribunal claiming that he had been unfairly dismissed and was the victim of disability discrimination. The Employment Tribunal concluded that Mr Powell has agreed the variation of the contract of employment when he became a Key runner, and that under that provision he was entitled to continue working at the higher (ie his original) rate of pay. The Employment Tribunal found that the dismissal was unfair and that Mr Powell had been subjected to disability discrimination.

At the appeal hearing, the EAT concluded that the original Employment Tribunal decision had been wrong in stating that the employer was entitled to insist and brought about a variation in the terms of the contract of employment without consent in order to implement the duty to make reasonable adjustments. The EAT concluded that if an employer proposes a variation of the terms of employment (ie of duties or pay etc) then the individual employee is entitled to decline that , and in that situation the variation (ie the reasonable adjustment that the employer is seeking to implement) will not take place. In this case there had been a change of terms  (ie the Key runner role) with the higher rate of pay as engineer continuing, but no agreement had been reached on the duration of this change, or how it could or would be ended.

The EAT found no reason in principle why the duty to make reasonable adjustments would not extend to protecting an employee's pay (along with other steps ) to counter a disabled employee's disadvantage. The EAT referred to previous cases to support this point ( eg Meikle v Nottinghamshire County Council). The EAT stated that ultimately the question to ask here is whether it is reasonable for the employer to have to take that step (in preserving a higher rate of pay for the disabled employee as a "reasonable adjustment"). The EAT stated that:- "The objective is to keep employees in work, and I see no reason why a package of measures for this purpose, which includes some pay protection, should not be a reasonable adjustment." 

The EAT noted that the legislation plainly anticipated an element of cost for the employer.However, the EAT did not expect that requiring employers to make up the disabled employee's pay would be an "everyday event" for Tribunals. and in changed circumstances such and adjustment may cease to be a reasonable one for an employer to make- for example if the employer's need for the particular job ceases or the economic circumstances of the business changed. 

The case highlights a number of important points in dealing with any disabled employee, and the consideration of any adjustments:-

1. In making any change to the terms and conditions of employment it is important to seek and obtain the consent of the employee (and obtain proof of that consent),

2. It is important to make it clear the duration of any change, including the duration of any pay-protection or pay freeze that is being proposed.

3. Keep the situation under review, and keep the employee involved in discussion over any changes.

If you need any help in dealing with the subject of reasonable adjustments do not hesitate to contact us at Hallett Employment Law Services Ltd.