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Disability discrimination – reasonable adjustments

adrian-fryer

The duty to make reasonable adjustments is triggered if an employee meets the definition of disability contained in the Equality Act 2010. The employee must have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to do normal day to day activities. There is a common misconception that disabled employees can ask for any changes they like and say they are ‘reasonable adjustments’. The reality is somewhat different. The duty to make reasonable adjustments only arises in specific circumstances, and the requirement is to make ‘reasonable’ – rather than any – adjustments.  In the recent case of Aleem v E-Act Academy Trust Limited, the EAT has looked at whether permanent pay protection is a reasonable adjustment when the employee can  no longer do the job for which they were originally employed.

The employee was a science teacher who had mental health problems which amounted to a disability and resulted in significant sickness absence. She was no longer able to do her teaching job. She was offered an alternative role of cover supervisor, at lower pay, but her pay was protected at the teacher’s level for three months while she tried it out and to allow a grievance process to conclude. The employee had agreed to the new job at the lower rate of pay. When her pay was reduced she brought a discrimination claim saying she should be permanently paid at the higher salary as a reasonable adjustment.

The employment tribunal did not agree. Whilst the duty to make reasonable adjustments arose, paying her at the teacher’s higher salary for doing another job was not a reasonable adjustment, especially given that the employer was public sector and in financial difficulties. The temporary pay protection was a reasonable adjustment. The EAT agreed that protecting the employee’s pay temporarily to support her return to work had been a reasonable adjustment. Once her return to work had been achieved, those considerations no longer applied. In deciding that permanent pay protection was not a reasonable adjustment, it was relevant that the employer was providing state education, was in financial difficulties and had problems recruiting science teachers which had resulted in educational standards dipping at the school. The cost was relevant too as the requested pay protection until the employee’s retirement ran to six figures.

This case appears to go against a previous EAT decision  – G4S Cash Solutions v Powell – where it was suggested that maintaining pay while moving an employee to a new role could be a reasonable adjustment. The facts were different in Powell though, because the employee in that case had been told his pay would be protected when he returned to work in a new role. In Aleem, the employee accepted the new job knowing that her pay would be reduced to the level of the new role after a probationary period and the conclusion of her grievance. This case also shows that many factors are relevant to what is reasonable in terms of adjustments, including the cost of adjustments,  the employer’s financial resources and the practicability of the adjustment including any disruption it might cause to the business. One size does not fit all here because what is reasonable will be different in each case.

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