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Disability discrimination: What amounts to a reasonable adjustment?

Disability discrimination: What amounts to a reasonable adjustment?

Companies often ask what adjustments need to be made if they employ someone with a long term illness. The recent case of G4S Cash Solutions appears to take the steps that need to be considered that bit further.

The G4S case

The G4S case involved an employee who had a back injury; as this was a long term condition they were classed as having a disability under the Equality Act.

When they came back to work they could not do their previous job and so were given another role he could undertake. This other role paid 10% less, but they ring-fenced his salary for a year. After a year, he was then given a choice to remain in the role but at a lower salary, or leave. He did not accept the lower salary, was dismissed, and then brought claim.

The Court held that reducing the employee’s salary, even in a different job, was an unreasonable adjustment under the Equality Act and upheld his complaints of unfair dismissal and disability discrimination.

The effect of the decision

Reasonable adjustments do need to be considered when an employee has a long term physical or mental impairment and protected by the Equality Act. Recent cases have tended to err on the need to make less, rather than more, adjustments. The G4S case has firmly stemmed that tide.

Any adjustments need to be reasonable given the financial resources of the employer. Here, however, the Court decided that:

  • there was no evidence presented which would support the argument that overpaying for a role would have caused difficulties within the workplace;
  • the company had sufficient financial resources to overpay for the role; and
  • even if it had caused people to complain, you cannot compare a disabled employee’s salary against that of an non-disabled employee.

In addition, the Court commented upon other areas where adjustments may be need to be considered. Importantly, it cast doubt on the earlier cases which indicated that a reasonable adjustment should not include needing to extend sick pay.

What to do

In summary, be more cautious about what can and cannot amount to a reasonable adjustment.

The G4S case does not change the law, but rather it extends the ambit of what a reasonable adjustment can encompass. There are no longer any arbitrary lines as to what should not be considered as a possible adjustment by an employer.

Going forwards, consideration needs to be given as to what adjustments can reasonably be undertaken, even if that is at extra cost. It does not mean that everything has to be done, but if it is not done, then it is important that a company is able to explain why something would not be reasonable, rather than vague assertions not supported by any evidence.

For further information please contact David Israel.

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