• Reasonable Adjustment requires Employee’s consent

    In G4S Cash Solutions (UK) Ltd v Powell, the EAT has held that a reasonable adjustment for disability which is incompatible with the terms of the employment contract cannot be imposed by the employer and will only be effective with the employee’s consent. The EAT also held that there was no reason in principle why pay protection, in conjunction with other measures, could not be a reasonable adjustment. The question would always be whether it was reasonable for the employer to have to take that step.

    P worked for GCSU Ltd as an engineer responsible for maintaining automatic teller machines (ATMs) in central London. Over the years, he developed back problems and, by mid-2012, he was no longer fit for jobs involving heavy lifting or working in confined spaces. On his return to work following a period of sickness absence in summer 2012, P began working in a newly created role of ‘key runner’, which involved driving from GCSU Ltd’s depot to deliver parts and keys to its ATM engineers, thereby enabling them to travel between jobs by public transport. GCSU Ltd continued to pay P his original engineer’s salary for the key runner role and P understood this to be a long term arrangement.

    In May 2013, however, GCSU Ltd was considering discontinuing the key runner role for operational reasons. It told P that the role was not permanent and gave him a list of alternative vacancies to consider, stating that if nothing was suitable then he could be dismissed on medical grounds. P consulted solicitors and presented a grievance, arguing that GCSU Ltd was attempting to change his terms and conditions. GCSU Ltd then decided to make the key runner role permanent, but at a lower rate of pay to reflect the fact that it did not require engineering skills. P was unwilling to accept the 10% pay reduction this would entail and was dismissed on 8 October 2013.

    An employment tribunal rejected P’s claim that there had been an agreed variation to his contract of employment when he commenced in the key runner role, such that he was entitled to continue in that role at his original salary on a permanent basis. However, the tribunal went on to hold that GCSU Ltd was required, as a reasonable adjustment under S.20 of the Equality Act 2010, to employ P as a key runner at his original rate of pay. GCSU Ltd appealed against this finding and P cross-appealed on the contractual variation point.

    Considering the cross-appeal first, the EAT held that the tribunal had based its view that there was no contractual variation on the erroneous assumption that an employer seeking to fulfil its statutory duty to make a reasonable adjustment was entitled to insist on a particular adjustment without the employee’s consent. In the EAT’s view, if an employer proposes an adjustment which is incompatible with the terms of the employment contract, the employee is entitled to decline it; the adjustment will therefore not be effective without an agreed variation of the contract. In the instant case, it was clear that there was a variation of P’s contract in summer 2012, but the terms of the variation – how long it was intended to last, or how it could be brought to an end, for example – were unclear, and the tribunal had not made any findings in this regard. However, it was not necessary to remit this question in view of the EAT’s conclusion on the reasonable adjustment issue.

    The EAT held that the tribunal had been entitled to conclude that GCSU Ltd was required, as a reasonable adjustment, to employ P as a key runner at his original salary. In the EAT’s view there was no reason in principle why the duty to make reasonable adjustments should be read as excluding any requirement to protect an employee’s pay in conjunction with other measures to counter the employee’s disadvantage through disability. The question will always be whether it is reasonable for the employer to have to take that step. Pay protection is no more than another form of cost for an employer, analogous to the cost of providing extra training or support, and there is no reason in principle why one should be a ‘step’ within S.20 but the other should not. The objectives of the reasonable adjustments duty plainly envisage an element of cost to the employer, and in individual cases tribunals often have regard to financial factors. It would not be an everyday event for a tribunal to conclude that long-term pay protection is required, but it was possible to envisage cases where this may be a reasonable adjustment for an employer to have to make to get an employee back to work or keep an employee in work in accordance with the objective of the legislation. That said, the EAT also 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.


    Report (c) Thomson Reuters

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