G4S Cash Solutions (UK) Limited v Powell

Does maintaining higher pay amount to a reasonable adjustment? 

Potentially yes, according to the recent case of G4S Cash Solutions (UK) Limited v Powell.   In this case, Mr Powell was moved from an engineering role to a lesser skilled role as a result of his disability. The salary for the new role would under normal circumstances have been less than Mr Powell received for his engineering role.

G4S initially maintained Mr Powell’s higher rate of pay for a period of time following the change in role. After 12 months, G4S wished to reduce Mr Powell’s salary to the appropriate level for the lesser skilled role. Mr Powell refused to accept the reduction in salary and was dismissed as a result.

The Employment Tribunal subsequently found the dismissal to be unfair and an act of disability discrimination. It was of the opinion that the employer’s duty to make reasonable adjustments in accordance with the Equality Act 2010 extended to maintaining the higher level of pay even in the lesser role. The case was appealed to the Employment Appeal Tribunal (EAT) who agreed with the decision of the original Tribunal.

Employers will be pleased to note that the EAT did state that it doubted requiring employers to make up pay would be an ‘everyday event’ and the decision was very much based upon the particular circumstances of the case. Despite this, the case serves as a clear reminder that employers can be found to have committed acts of disability discrimination if they fail to make reasonable adjustments in order to prevent an employee from suffering a substantial disadvantage in the workplace as a result of his/her disability.

Whether any potential adjustments are required will depend on whether they are reasonable in the circumstances. Adjustments could be anything from making adjustments to premises to the provision of training and support or modifying employees’ working hours. Employers are encouraged to ‘think outside of the box’ when it comes to reasonable adjustments, and excuses such as inconvenience or discontent of colleagues will often not be deemed a sufficient excuse to avoid implementing the adjustments.

Where an employee succeeds in a claim for disability discrimination the Employment Tribunal may award compensation which would be unlimited in value. It is therefore very important to give consideration to potential adjustments when dealing with disabled employees to avoid falling foul of this duty.