Acting to stop harm: the FCA and Appointed Representatives
In G4S Cash Solutions (UK) Ltd v Powell UKEAT/0243/15/RN the EAT found that a reasonable adjustment to accommodate an employee’s disability was not effective without the consent of the employee.
The Claimant had worked in a number of engineering roles for many years. However, by mid 2012, due to back problems, the Claimant was no longer fit to perform the role which he was undertaking at that time. A new role was therefore created of “key runner” which involved the Claimant driving to various locations and delivering keys to engineers.
He retained his original salary in this position. He remained in this position until his employment was terminated. In May 2013 the Respondent considered discontinuing the role for organisational reasons. The Respondent told the Claimant at this point that they had never considered his role as key runner as permanent. However, they eventually decided to maintain the role as a permanent role, but stated that it would involve a drop in pay for the Claimant. The Claimant was not willing to accept this salary reduction and was therefore dismissed on medical grounds.
At first instance, the tribunal had held that there had been no contractual variation when employing the Claimant into the key runner role. The tribunal held that ‘an adjustment can be effective without the consent of the employee….and therefore it differs from a variation of contract, which requires consent’. It went on to state that there was not a variation of the contract in this situation because there was never a time when the parties had agreed that the contract was varied. The tribunal stated that any such contractual variation would have been supported by written confirmations that he had changed role. However, the Claimant’s case was still upheld on the basis that the failure to maintain the rate of pay in the key runner role was a failure to make reasonable adjustments and therefore he had been discriminated against by the Respondent.
The Respondent then appealed to the EAT against the decision and the Claimant cross-appealed on the finding that there was no contractual variation.
The EAT held that the tribunal had erred in law in holding that there was no contractual variation. An employer could not propose an adjustment which was incompatible with the terms of the contract of employment without the employee’s consent. The EAT held that there was clearly a variation to the contract in this case.
However, the EAT supported the tribunal’s finding in that the employer had failed to make a reasonable adjustment by not protecting the employee’s pay in the key running position. There was no reason why protection of pay could not be a reasonable adjustment. Therefore, the EAT held that since the Respondent’s appeal was dismissed, there was no need to remit the variation issue back to a tribunal.
This case is interesting for two reasons. First of all it shows the connection between reasonable adjustments and contractual variations. Following the EAT’s judgment, it seems clear that any reasonable adjustment that involves a change in the terms of the employment contract such as a change in pay or a change in duties will still require employee consent. In this case the employer arguably found itself in difficulties as they had not clearly stated from the outset that it considered this variation to be temporary, so changing it back or trying to cut pay led to difficulties.
Secondly, there is the finding that protecting a pay level could be a reasonable adjustment. However, this part of the decision must be viewed with caution. The case was decided on its facts. It had provided for the new key runner role to be met at full pay. This arguably illustrated that the salary was clearly a reasonable sum which the employer could afford for the new role in order to accommodate the employee. The case does not say, for example, that if the reasonable adjustment is moving someone to a part time role you have to keep them on full time pay.
It is clear from this case that when considering reasonable adjustments, the employer should be very clear at the outset what the terms are behind the proposed adjustment, and why. It should also make it clear whether it is temporary or permanent and, if temporary, what happens if the temporary period comes to an end without further agreement.
Should you have any questions about the issues raised in this blog, please contact a member of our employment team.
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