Disability Discrimination - Adjustments & Paid Protection

Monday, 19 September 2016 09:05

In a case G4S Cash Solutions (UK) Limited –V- A Powell, Mr Powell was employed by G4S as an engineer. Mr Powell became unwell and he was no longer able to carry out the role of an engineer because of a lower back condition.

The employer created a new role which Mr Powell was able to physically cope with and he was redeployed to that role. A salary as an engineer was about 10% of the new grade that he was subsequently engaged upon.

Sometime later the employer decided that the new role, that Mr Powell was working in, did not fit in with its corporate structure and were going to remove it. Mr Powell raised a grievance and the employer decided to maintain the role but to remove the 10% disparity between Mr Powell’s old role, as an engineer, and the new role he was now working in.

Mr Powell brought a claim for Unfair/Constructive Dismissal and Disability Discrimination. He alleged that his contract had been varied so that he was carrying out the new role at the engineer pay rate. The Employment Tribunal did not agree with his argument that there had been a variation to his contract. The Employment Tribunal felt that the employer had failed in its duties to make reasonable adjustments.

There was an appeal to the Employment Appeal Tribunal who held that there had been a valid contractual variation of Mr Powell’s contract in 2012. It also found that the employer was required to protect an employee’s pay, in conjunction with other measures, as a reasonable adjustment. The EAT found that the adjustment was reasonable.

The question that was raised by the appeal was “was it reasonable for the employer to take this particular step” – that is a redeployment and a protected wage.

The EAT said that on the facts it was reasonable for this employer to take this measure, although it did involve a cost to them. Some reasonable adjustments may require the direct costs, such as the provision of equipment, training or support, or (as in this case) an indirect cost in effectively subsidising the employee’s wages when compared to non-disabled workers.

The EAT said that Paid Protection is no more than the potential form of costs for an employer and that an element of costs was necessary to keep employees in work, and that was the objective of the legislation.

However, the EAT went on to say that they did not expect it to be an “every day 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. It could, however, be reasonable as a part of a package of reasonable adjustments as in the case of Mr Powell.

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Author: Gareth Price Email:


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