Two disability discrimination issues in one case: Reasonable adjustments not effective without employee consent and maintaining a higher level of pay may be seen as a reasonable adjustment

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.




Occupational health referrals in disability cases: lessons from recent case law

An employer has a duty to make reasonable adjustments when it knows or can be reasonably expected to know that an employee is suffering from a disability.   Determining whether or not an employee has a disability for the purposes of the Equality Act 2010 is rarely straightforward, particularly where mental illness is concerned. It is for this reason that employers often seek guidance from medical professionals and make a referral to occupational health.  Recently, cases have highlighted a couple of salutary lessons to bear in mind when doing so.

Do not just rely on what the employee is (or is not) telling you: make sure to ask “the right questions”. 

In the case of Cox v Essex County Fire and Rescue Service, Mr Cox had informed his employer that he was suffering from bi-polar disorder.  This was, however, never properly confirmed to the employer by medical evidence and Mr Cox would not agree to the disclosure of his medical records. The Tribunal and the EAT both decided on the facts that, in the absence of a definitive diagnosis, the employer did not have actual or constructive knowledge of the disability.

The decision in Cox may seem surprising: Mr Cox had set out in writing to his employer the dates, symptoms, likely trigger and detailed effects of the condition.  However, once the employer was put on notice of a possible disability, it asked the right questions. The employer obtained occupational health reports, sought medical opinions on whether the employee was disabled, tried to get a report from the employee’s GP (which was refused by the employee), and sought a formal diagnosis of the condition. Despite all these actions by the employer, there was no evidence, other than what the employee was saying, that the employee was disabled.

Do not rely unquestioningly on the conclusion of an occupational health report.

In Gallop v Newport City Council the Court of Appeal stressed that the question is whether an employer has actual or constructive knowledge of the employee’s disability.  The employer cannot hide behind a medical report asserting that the employee is not disabled; this is an employment question to be determined by the Tribunal, not a medical question.

Mr Gallop was dismissed by the Council.  During his employment, he suffered from depression and the Council referred him to occupational health.  The subsequent reports stated that Mr Gallop’s medical condition did not meet the legal definition of disability but did not explain the reasons for reaching this view. The Tribunal and the EAT decided that in view of the findings of the occupational health report, the employer did not know that the employee was disabled. However, the Court of Appeal disagreed.

The Court of Appeal overturned the decision, and reasoned that although an employer should correctly seek assistance and guidance from an occupational health report (or other medical expertise) it is for the employer to make a factual judgment as to whether or not the employee is disabled.  An employer cannot simply “rubber stamp” an external opinion: although an employer would normally respect a report saying that an employee was disabled, when a report said that the employee was not disabled it was necessary for the employer to bring its own factual judgement to bear. Reiterating the advice above, an employer should tailor the questions it asks occupational health to the particular circumstances of the case, so that it can make its own assessment.

Without an employer turning its own mind to the question at hand and asking the right questions, it is unlikely to be able to argue that it either does not know or could not reasonably have known about the employee’s disability.

Soruce: Kingsley Napley, Kirsty Churm