The scope of an employer’s duty to remove barriers disabled employees face in the workplace has always been debatable.
In a recent case, the Employment Appeal Tribunal (EAT) has held that an employer’s duty to make reasonable adjustments under the Equality Act 2010 could mean they must maintain the salary of a disabled employee who has been deployed to a less skilled or junior role.
The employee worked as an engineer. By 2012, his back problems had worsened and he was no longer fit to fulfil certain roles, such as those that involved heavy lifting or working in confined spaces. It was accepted that the employee was disabled for the purposes of the Equality Act. The employee began to work in the newly created role of “key runner”, which involved driving to multiple locations and delivering keys and parts to engineers. The employee retained his former salary in this new position even though his new role did not require the same level of training and skill as when he was an engineer.
The employee was under the impression that the role was long-term. However, one year into the role, the employer asked him to consider other alternative vacancies in the company or to accept a 10% pay decrease if he wished to continue in this key runner position. As the employee was unwilling to accept this pay cut and there were no other appropriate job vacancies available, the employer dismissed the employee on medical grounds. The employee brought a claim of unfair dismissal and disability discrimination against the company.
Under the Equality Act 2010, employers must make “reasonable adjustments” to make sure disabled workers are not seriously disadvantaged when fulfilling their role. For example, an employer may consider changing their equipment, installing a ramp for a wheelchair user or retraining the employee. Failure to make reasonable adjustment constitutes discrimination.
The accepted view is that it would not be reasonable for an employer to create a new role specifically for a disabled person.
The Tribunal upheld the employee’s claim and the company appealed to the Employment Appeal Tribunal. The EAT stated that pay protection “may be a reasonable adjustment for an employer to have to make as part of a package of reasonable adjustments to get an employee back to work or keep an employee in work”. It noted that many reasonable adjustments involve some form of cost to the employer, for example training costs. Therefore, pay protection may be considered as another such reasonable cost in the circumstances.
However, the EAT made it clear employers will not always be obliged to protect employees’ pay when changing their roles for disability related reasons. Each case will be decided on its own individual facts. What is reasonable in one case will not be considered reasonable in another. In this case, the main reason for not paying the employee the higher rate was that it would create dissatisfaction amongst the other employees if they were to find out about this arrangement. However, there was no evidence presented to support this argument. Another important factor was that the employee was led to believe it was a long-term arrangement and he had been paid his former salary for a year. Additionally, the case involved only one claim – it was not a claim that applied to many employees which would cause a heavy burden on the business. The company had substantial resources and could afford the additional cost.
You should always seek advice from your Ellis Whittam Employment Law Adviser when dealing with a matter involving an employee who is disabled and where reasonable adjustments to normal practice may be required.