G4S Cash Solutions (UK) Ltd v Powell

A reasonable adjustment under section 20(3) of the Equality Act 2010 may, in principle, include protecting a disabled employee’s existing pay when transferring that employee to different work. The decisive question is whether it is objectively reasonable for the employer to have to take that step on the particular facts. Cost, the employer’s resources, the employee’s benefit, and the scope of the proposed arrangement are relevant.

An employee may decline an adjustment which is incompatible with the contract of employment. Such an adjustment requires agreement and a contractual variation. The terms of an agreed variation must be determined objectively from the parties’ words and conduct in their context.

The claimant became unable, because of a back disability, to perform his duties as a single-line maintenance engineer. His employer placed him in a key-runner role for about a year while retaining his former salary. It later offered that role permanently at a lower salary. The claimant refused and was dismissed.

The Employment Tribunal upheld complaints of unfair dismissal and disability discrimination. It held that continuing the key-runner role at the former salary was a reasonable adjustment, but rejected the claimant’s contention that his contract had been permanently varied. The employer appealed the reasonable-adjustment finding. The claimant cross-appealed the contractual-variation finding.

1. Appeal dismissed. The Employment Tribunal was entitled to find that it was reasonable for the employer to retain the claimant in the key-runner role at his existing salary as an adjustment under section 20(3) of the Equality Act 2010.

2. The relevant PCP was the requirement to be fit to carry out the engineering work. The claimant’s disability put him at a substantial disadvantage because he could not perform that work and faced dismissal or acceptance of lower-paid work. The real issue was whether pay protection, alongside transfer to the alternative role, was a reasonable step.

3. There is no principled exclusion of pay protection from the concept of a step under section 20(3). The duty can require more favourable treatment of a disabled employee. It may include transfer to a different role and, where objectively reasonable, an associated cost to the employer. The assessment is fact-sensitive. Financial cost and resources must be weighed, but the arrangement was an individual one, had operated for nearly a year, and no evidence showed that its cost was unaffordable. Potential discontent among other employees was not a sufficient reason on the evidence.

4. The Tribunal’s wording that the employer had a duty to consider an adjustment was imperfect. Read as a whole, however, its reasons showed that it had decided the correct question: whether it was objectively reasonable for the employer to have to take the concrete step of pay protection.

5. The cross-appeal identified an error of law. An employer cannot impose an adjustment incompatible with the employment contract without the employee’s agreement. The parties had plainly varied the claimant’s duties, but the Employment Tribunal had not made adequate objective findings about the terms and duration of that variation. Had the employer’s appeal succeeded, the variation issue would have been remitted. Since the appeal was dismissed, no remittal was ordered unless either party established a practical need for one.

• Employment Appeal Tribunal: dismissed the employer’s appeal and identified an error in the Employment Tribunal’s contractual-variation reasoning, but made no remittal order because the dismissal of the appeal made the issue immaterial.
• Employment Tribunal: upheld the claimant’s complaints of unfair dismissal and disability discrimination in a judgment dated 9 February 2015, with written reasons dated 6 May 2015. It rejected his contractual-variation contention.