Employers will be aware that under the Disability Discrimination Act 1995 (“the DDA”) they may have a duty to consider reasonable adjustments to assist disabled employees in certain circumstances and that this duty to consider reasonable adjustments is to assess whether the adjustment itself will prevent any disadvantage to the disabled employee continuing. Examples of adjustments include making adjustment to premises, allocating some of a disabled person’s duties to another employee, altering the disabled person’s hours of working or training, or modifying performance related pay arrangements.
A Code of Practice issued by the Equality Commission for NI also suggests that an employer might wish to transfer a disabled employee to an existing vacancy (of course, having made appropriate enquires to ensure the employee is fit to undertake other duties). There are no clear provisions within the Code of Practice, or the DDA itself, which give guidance as to whether in transferring a disabled employee to alternative employment, or changing hours etc., that the employer should automatically maintain the employee’s original rate of pay if the alternative employment attracts a lower salary. There is however, reference to modifying policies, procedures or other arrangements. Often, this might apply to absence processes or redundancy selection.
There is however, an English decision (G4S Cash Solutions (UK) Limited v Powell 2016) where an employer, who refused to maintain higher pay for a different role undertaken by a disabled employee, was held to have failed in its duty to consider reasonable adjustments. In that particular case, there was a difference of approximately £207 gross monthly salary and the Employment Appeal Tribunal was of the opinion that maintaining higher salary could be a reasonable adjustment.
Whilst that case is likely to be fact specific, and indeed the EAT said it should not be taken as “an every day event”, maintaining salary at its original level could be considered a reasonable adjustment. It would be necessary to assess factors such as the size of the Company, its resources, the finance available and indeed, how practicable the step is in removing this disadvantage from the particular employee, in considering whether this is an adjustment an employer would be required to make. Pay protection for a disabled employee could be seen as a reasonable adjustment to keep him/her at work and may be no different to a step taken, and costs incurred, in providing extra support to the individual.
There is a risk therefore that offering a disabled employee alternative work, but at a lesser salary, could amount to a failure to make reasonable adjustments but much will depend on the employer’s individual particular circumstances.
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While great care has been taken in the preparation of the content of this article, it does not purport to be a comprehensive statement of the relevant law and full professional advice should be taken before any action is taken in reliance on any item covered.