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Unreasonable adjustment?

Discrimination legislation imposes a duty on businesses to make reasonable adjustments to premises or working practices where a disabled job applicant or employee is placed at a substantial disadvantage. Failing to comply with this duty is a form of disability discrimination.

The duty can arise in three circumstances:

  • Where a provision, criterion or practice puts a disabled person at a substantial disadvantage in comparison with individuals who are not disabled.
  • Where a physical feature puts a disabled person at a substantial disadvantage in comparison with individuals who are not disabled.
  • Where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in comparison with individuals who are not disabled.

For these purposes, the phrase “provision, criterion or practice” is wide ranging and can include matters such as (i) recruitment criteria; (ii) provisions in the employment contract; (iii) employment policies and in formal practices.  A “substantial disadvantage” is a disadvantage that is more than minor or trivial.  It is a relatively low threshold to achieve, but depends on the individual facts of the situation. 

The aim of the legislation is to ensure that an employer takes steps to identify disadvantages caused to a disabled applicant or employee by a provision, criterion, practice, physical feature or lack of auxiliary aid is removed and then considers and implements reasonable adjustments to remove the disadvantage.

What is a “reasonable” adjustment?

Although each situation will be different, there are a number of factors which may be taken into consideration when deciding if the steps a business has taken were “reasonable”, including:

  • Whether the adjustment would actually solve the disadvantage identified.
  • The practicality of the adjustment.
  • The impact of the adjustment on the business as a whole.
  • The financial and other costs of making the adjustment.
  • The size of the business.

Pay protection: an unreasonable adjustment?

Historically, it had been understood following the Court of Appeal case of O'Hanlon v Commissioners for HM Revenue & Customs [2007], that it was not a reasonable adjustment to give higher sick pay to a disabled employee than a non-disabled employee. 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). The was a potential exception to this theory, if the absence from work had itself been caused by an employer’s failure to make reasonable adjustments. 

Similarly, where a reasonable adjustment resulted in demotion or reduction in hours, it was understood that a consequent reduction in remuneration would be appropriate, subject to acceptance by the employee to such variation as to role and to remuneration. It would not in general terms be a reasonable adjustment to pay a disabled employee an unusually high amount for a particular role.

However, in August 2016, in the case of G4S Cash Solutions (UK) Ltd v Powell, the EAT has made it clear that it is not always the case that pay protection is an unreasonable adjustment.  The question would always be whether it was reasonable for the employer to have to take that step.  In the Powell case, P was an engineer.  He returned to work after suffering long term back problems and a period of sickness absence, to the role of key runner, because he could no longer fulfil all of his former duties, but his original salary was maintained by his employer.  Sometime later, the employer attempted to reduce P’s salary by 10% to reflect the fact that the new role did not contain engineering duties, but P objected and ultimately brought tribunal proceedings.

The EAT determined that the question will be whether pay protection is a reasonable adjustment for the employer to consider and make in the particular circumstances it faces. Pay protection is no more than another form of cost for an employer, analogous to the cost of providing extra training or support. The objectives of the reasonable adjustments duty plainly envisage an element of cost to the employer. It would not be an everyday event for a tribunal to conclude that long-term pay protection is required, but it was possible to envisage cases where this may be a reasonable adjustment for an employer to have to make to get an employee back to work or keep an employee in work in accordance with the objective of the legislation. That said, the EAT also noted that, in changed circumstances, an adjustment may eventually cease to be reasonable, for example if the need for a job were to disappear or the economic circumstances of the business changed.

The Powell case also made it clear that a reasonable adjustment for disability which is incompatible with the terms of the employment contract cannot be imposed by the employer and will only be effective with the employee’s consent.  That leads to the question: if the employee refuses to vary their contract to implement a reasonable adjustment, has the employer has failed in its duty under anti-discrimination law?  This question is not directly answered in the Powell judgment but presumably, if the employer has taken reasonable steps to avoid the disadvantage by offering a variation to the employee that the employee refuses and there are no other steps available, it can then be argued that the employer has fulfilled the duty in so far as it is able to.

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