The EAT has held that it would have been a reasonable adjustment to continue employing a disabled employee in a more junior role while continuing to pay him at his original rate of pay.

Mr Powell worked for G4S Cash Solutions (UK) Ltd (G4S) as a single-line maintenance engineer and maintained G4S’s ATM machines.  He had employed by the company since 1997 in various roles, however he suffered from back pain and by 2012 he was no longer fit for jobs which involved heavy lifting, or work in confined spaces.  After a period of sickness absence, Mr Powell returned to work as a “key runner”, a role which involved driving from the company’s depot to various locations to deliver materials to engineers.  In 2013, G4S informed Mr Powell that the key runner role was not permanent and invited him to look through a list of alternative vacancies. He was informed that if he couldn’t find anything suitable, he would be dismissed on the grounds of ill health. When Mr Powell lodged a grievance, G4S decided to make the key runner role permanent, but with a 10% reduction in pay to reflect the fact that the role did not require engineering skills. Mr Powell objected to this and was dismissed.  Mr Powell lodged various claims against G4S, including a claim that it had failed to make reasonable adjustments.

The EAT held that continuing to employ Mr Powell as a key runner on his original rate of pay would have been a reasonable adjustment and G4S had discriminated against when it failed to do this.  The EAT took the view that there is no reason why pay protection cannot be a reasonable adjustment, as it just is another form of cost for an employer, analogous to the cost of providing extra training or support.

The effect of this decision is that when considering what adjustments should be made for a disabled employee, the possibly of protecting the employee’s original rate of pay following a change in the employee’s role should be considered.  As in every case, the reasonableness of any potential adjustments must be assessed on a case-by-case basis, taking into account a range of factors, including the cost of making the adjustment and the resources available to the employer.  As G4S is a large organisation with substantial resources, the cost of continuing to pay Mr Powell at his original rate of pay was affordable.

Protecting pay of disabled employee can be a reasonable adjustment