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Out-Law News 1 min. read

Employer reasonable adjustment requirements highlighted in pay dispute

A recent ruling by the Employment Appeal Tribunal (EAT) provides useful guidance for employers about their obligations to make ‘reasonable adjustments’ to pay to account for employee disability, an employment law expert has said.

Sue Gilchrist of Pinsent Masons, the law firm behind Out-Law, was commenting after the EAT dismissed a teacher’s claim against her employer.

According to the decision, S Aleem, a science teacher, suffered from mental ill health and was off work for significant periods. When she returned to work this was on a reduced days basis of four days per week rather than full-time. She was then signed off again. She requested a two-and-a-half-day working week, but her employer considered this would not be workable and rejected the proposal. Aleem remained off ill and raised a grievance with her employer.

At a subsequent absence review meeting, Aleem was offered a role as a cover supervisor three days per week with a three-month trial period, which she accepted. Her salary was maintained at the four-day teacher rate during the probationary period, and pending conclusion of her initial grievance and another grievance she later filed. The grievances were not upheld but the employer decided to continue paying Aleem at the higher pay rate for a short period while options for the way forward were reviewed.

During that period an occupational health report indicated that Aleem was not fit for a full-time teaching role but could continue in the cover supervisor role, which she did. Aleem’s salary was subsequently adjusted to the lower cover supervisors’ pay rate. Aleem argued that she should have continued to have been paid at the teachers’ rate.

In considering Aleem’s case, the EAT reviewed previous case law on reasonable adjustments as they relate to pay. In particular, it looked at the case of G4S v Powell where maintenance of enhanced payments was considered to be a reasonable adjustment. Powell’s case was considered by the EAT to be different as Powell had been given the impression that his pay would be maintained at the higher rate indefinitely; circumstances which did not apply in Aleem’s case.

The EAT also considered whether an employer would first have to show that it is in financial difficulty if it is not to be held liable to pay the higher rate. The EAT dismissed that notion.

“This is a helpful case for employers,” said Gilchrist. “The purpose of reasonable adjustments is to help people start or return to work from ill-health, and to keep them in work. A previous case made clear that disabled people are not ‘objects of charity’, and treating them as if they were could potentially disincentivise someone from returning to work.”

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