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PAY PROTECTION AND REASONABLE ADJUSTMENTS

08/11/2016

An employer has a duty to take reasonable steps to avoid placing a disabled person at a disadvantage by making reasonable adjustments. A reasonable adjustment can take various forms such as modifying equipment, introducing regular breaks or altering hours of work.

The Employment Appeal Tribunal (EAT) recently considered the scope of the duty to make reasonable adjustments in the case of Cash Solutions (UK) Ltd v Powell. The EAT held that a reasonable adjustment could not be imposed without an employee's consent where it involved changes to contractual terms and conditions and, where reasonable, protecting an employee's pay where a lower grade job has been offered, may be considered a reasonable adjustment.

Whilst maintaining an employee's pay level as a reasonable adjustment is not an "every day event", the EAT stated that it could "envisage cases where this may be a reasonable adjustment for an employer to have to make as part of a package of reasonable adjustments to get an employee with a disability back to work or keep an employee in work".

The fundamental question for employers is what is reasonable? This case does not mean that disabled employees must always be paid their existing salary when moved to a lesser job as a reasonable adjustment. What it means is that pay protection should be considered on a case by case basis and will depend on factors such as the size and overall resources of the employer, the financial costs and other costs of making the adjustment and the overall practicability of making the step.

The likelihood of discontent or complaints from other employees in relation to an adjustment is not generally a key factor in deciding whether an adjustment is reasonable. The EAT did note though that an adjustment may eventually cease to be reasonable, for example, if the economic circumstances of a business changed.

Fiona Haworth. You can contact Fiona on fiona@practical-hr.co.uk

If you feel that you need guidance or advice on this matter, please call Practical HR on 01702 216573 or email Fiona on the above.


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