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Disability discrimination—G4S Cash Solutions (UK) Ltd v Powell

November 2016

Background

Under the Equality Act 2010 where an employer’s ‘provision, criterion or practice puts a disabled person at a substantial disadvantage in comparison with those who are not disabled’, and employer must take such steps as it is reasonable to have to take to avoid the disadvantage.’

Facts

Mr Powell worked for G4S Cash Solutions (UK) Ltd (G4S) as an ATM engineer from 1997. He suffered from back pain and by 2012, he was no longer able to continue in this role. After a period of sickness, Mr Powell returned to work, in a newly created, less skilled role as a ‘key runner’. Although this role attracted a salary of approximately 10% lower than his former, Mr Powell maintained his original salary, a position he understood would continue permanently.

By May 2013, G4S were considering removing the key runner role from the business.  After informing Mr Powell that his role as a key runner was not permanent, he raised a grievance.  In response, G4S agreed to retain Mr Powell in his role, on the condition that he would be paid the normal key runner salary.  Mr Powell refused the offer and was dismissed in October 2013. Mr Powell brought claims in the Employment Tribunal for Unfair Dismissal and disability Discrimination.  He argued that his contract had been validly varied, which entitled him to carry out his new role at the same level of pay. He also claimed that G4S had failed to make reasonable adjustments by refusing to allow him to continue in his new role at the same level of pay.

Judgment

The Tribunal held that there had been no valid variation of contract on the basis that a contract variation cannot be unilaterally imposed by an employer on a disabled employee. The Tribunal reasoned that if an employer proposes a reasonable adjustment that is incompatible with the terms of the contract of employment, the employee is entitled to decline it. Therefore, the variation could only have been validly varied with Mr Powell’s mutual consent.  However, the Tribunal did hold that G4S was required, as a reasonable adjustment, to employ Mr Powell as a key runner at his original rate of pay.

The Employment Appeal Tribunal upheld the Tribunal’s decision that there had been a failure to make reasonable adjustments, in that there was no reason in principle why protection of a disabled employee’s pay could not be included as a reasonable adjustment, alongside other measures.

Implications for employers

The EAT made a number of comments that employers should be aware of:

This case should not be interpreted to mean that disabled employees can now categorically demand that their salary is maintained in the event that their productivity or role changes as a result of their disability. However, the EAT’s judgement does explicitly say that pay protection can constitute a reasonable adjustment. As such, employers should be mindful of this when making a decision to reduce pay in these kinds of circumstances.

 

 

Sheilah Cummins

Associate

e scummins@prettys.co.uk

t 01473 298226

 

 

 

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