Paying for more than the job’s worth….

We are all aware that the primary aim of the duty to make reasonable adjustments is to enable disabled individuals to participate fully in employment.

Assisting disabled employees in the workplace needs to be a balancing exercise, as confirmed by the Court of Appeal in O’Hanlon v Commissioners for HM Revenue & Customs [2007]. The court confirmed that it would only rarely be a reasonable adjustment to give higher sick pay to a disabled employee than a non-disabled employee because the duty to make reasonable adjustments is designed to enable disabled people to play a full part in the world of work; not to treat them as “objects of charity” (which may act as a disincentive to return to work).

Whilst there have been a plethora of cases providing employers with guidance on what might be considered to be a reasonable adjustment, it will be for the tribunal in each case, to objectively determine whether a particular adjustment would have been reasonable to make in the circumstances. It will take into account matters such as whether the adjustment would have alleviated the disadvantage, the cost of the adjustment in the light of the employer’s financial resources, and the disruption that the adjustment would have had on the employer’s activities.

In the recent case of G4S Cash Solutions (UK) Ltd v Powell, the EAT confirmed that the duty to make reasonable adjustments can extend to protecting a disabled worker’s pay where they are placed into a more junior role due to their incapability to perform their usual contractual duties. In that case, the disabled employee was assigned to a less skilled role following a period of sickness absence. G4S initially agreed to pay the employee his usual full salary for the lesser role, then attempted to reduce the salary to the level of the job’s worth. The employee was unwilling to accept the reduced rate of pay and was dismissed. He claimed unfair dismissal and disability discrimination.

The EAT noted that employers usually shoulder the cost of making reasonable adjustments; for instance, costs relating to provision of equipment or the indirect cost of retaining a disabled worker where they may be less productive and the employer is in effect subsidising their salary compared with non-disabled workers. The EAT took the view that, while it will not be an everyday event for an employer to provide long-term pay protection, paying more than the job’s worth is no more than another potential form of cost for an employer and can form part of an overall package of reasonable adjustments.

It is important to remember however, that the tribunal will always look at the facts to establish whether any proposed adjustment is reasonable in any given situation. They will look at the financial resources available and what is deemed reasonable for G4S, may not be equally reasonable for a smaller employer.

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