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Disability - Protection of Pay Can Be a Reasonable Adjustment

In G4S Cash Solutions (UK) Limited v Powell, the Employment Appeal Tribunal (EAT) considered whether an employer's duty to make reasonable adjustments where a provision, criterion or practice places a disabled employee at a substantial disadvantage extends to continuing to pay them at a higher salary rate after they have been moved to a less skilled job.

Mr Powell began working for security company G4S Cash Solutions (UK) Limited in 1997. One facet of the company's business is maintaining and replenishing automatic teller machines (ATMs). By 2012, he was employed as a single-line maintenance (SLM) engineer, but he was suffering worsening problems with his lower back and it was clear that he was no longer capable of fulfilling a role that involved heavy lifting or working in confined spaces. It was common ground that by this time he had a disability for the purposes of the Equality Act 2010. G4S therefore created for him the role of 'key runner', supporting other ATM engineers by delivering keys and parts so that the engineers could travel by public transport. Mr Powell retained his original salary and understood that this arrangement was long term.

In May 2013, G4S considered discontinuing the key running role. However, it subsequently agreed to make it permanent, but only if Mr Powell were prepared to take a 10 per cent cut in his salary. He was unwilling to do so. No other suitable vacancy could be found and he was dismissed in October 2013.

Mr Powell's claims of disability discrimination and unfair dismissal were upheld by the Employment Tribunal (ET). In its view, he had been given to understand that his new role and pay arrangement were long term and G4S had failed to make the reasonable adjustment of permitting him to continue to work as key runner at the salary rate of an SLM engineer. His dismissal amounted to disability discrimination and was unfair.

The EAT dismissed G4S's appeal. The ET had neither erred in law nor reached a conclusion that was perverse. The company should have continued with the pay arrangement that had been in place for almost a year and that Mr Powell had been led to believe would be ongoing. Whilst each case will turn on its own facts, the EAT could see no reason why a package of measures aimed at keeping a disabled employee in work that includes some pay protection should not constitute a reasonable adjustment, albeit that the EAT did not envisage that requiring an employer to protect the pay of a disabled employee would be 'an everyday event' for an ET. In this case, the ET had weighed in balance the financial considerations and found that it was reasonable for G4S to take the step in question. The EAT found the company's argument that continuing to pay Mr Powell the SLM rate was likely to cause discontent amongst other employees an 'unattractive reason' which the ET was entitled to reject.

The EAT went on to stress that what was a reasonable adjustment for an employer to make taking into account current circumstances could cease to be reasonable at some time in the future if circumstances changed.

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