Reasonable Adjustments – A Forced Cash Solution? by Antony Sendall.
In G4S Cash Solutionss (UK) Ltd (G4S) v Powell UKEAT/0243/15/RN, the EAT accepted that protecting pay of a disabled worker could amount to a reasonable adjustment where the worker was incapable of performing his previous duties. It also rejected the ET’s suggestion that a reasonable adjustment can be forced upon an employee without consent.
The Claimant became disabled by a back injury and was unable to continue his previous role. The Respondent gave him a new lesser role, but maintained his level of pay. The Claimant was led to believe that this role would be long-term. However, within 12 months, the Respondent informed him that he would only be able to continue at a reduced rate of pay. The Claimant refused to accept the pay cut and was dismissed. The Claimant’s contention that there had been a variation in his contract was rejected by the ET. Nevertheless, it concluded that he had been discriminated against because of a failure to make reasonable adjustments and by dismissing him. Both parties appealed the ET decision.
The Appeal was dismissed and although the EAT was inclined to allow the cross-appeal, no order was made as it was unnecessary.
The EAT concluded that there was a variation of the contract and also that the Respondent should have continued the pay protection which had been in place for about 12 months and which the Claimant had understood to be a long-term arrangement. The ET was held to have taken proper account of the financial evidence when concluding that it was a reasonable adjustment to protect the pay. It also upheld the ET’s rejection of the Respondent’s unattractive basis for reducing the rate of pay, namely the risk of discontent from other workers.
In its reasons, the ET suggested that “an employer is entitled to insist on an adjustment, irrespective of whether the employee suggests it. It follows that an adjustment can be effective without the consent of the employee, albeit, it may be difficult to put into effect in practical terms, and therefore it differs from a variation of contract, which requires consent.” Not surprisingly, the EAT rejected that suggestion, holding that “if an employer proposes an adjustment which is incompatible with the terms of the contract of employment, the employee is entitled to decline it: the adjustment will not be effective without agreement, that is to say without a variation of the contract. No doubt in the vast majority of cases such agreement will be forthcoming; but there will be cases where an employee does not agree with a proposed adjustment. In such a case an employer is not entitled to impose it if the adjustment is incompatible with the terms of the contract of employment.”
It is worth noting that the Respondent had substantial resources and was able to afford the increased costs of the protected pay. It is inherent in the legislative scheme of the Equality Act 2010 to seek to keep people in work and the duty to make reasonable adjustments may require the employer to treat an employee more favourably – see Archibald v Fife Council  ICR 954 at paragraphs 47 and 68 (Baroness Hale). The EAT also noted that there is no basis for suggesting that the duty should exclude a requirement to protect a worker’s pay as part of countering the worker’s disadvantage caused by the disability. The key question will be whether it is reasonable for the employer to have to take that step.
The EAT also considered that it will not necessarily be common for an ET to conclude that an employer is required to make protect pay in the long-term. However, it is easier to envisage cases where this may be a reasonable adjustment to have to make as part of a package of measures to get an employee back to work or keep an employee in work. The cases will always turn upon their own facts and the financial considerations will have to be weighed in the balance – see Cordell v Foreign and Commonwealth Office  ICR 280.
Employers should also consider that circumstances may change, so that what was at one point a reasonable adjustment, may in the future cease to be an adjustment which it is reasonable for the employer to be required to make. For instance, the need for a job may disappear or the economic circumstances of a business may alter.