Following the judgment of the Employment Appeal Tribunal in the case of G4S Cash Solutions (UK) Ltd -v- Powell it may be necessary for employers to consider pay protection where an employee is offered alternative employment as a reasonable adjustment. The Employment Appeal Tribunal found that the objectives of the legislation concerning reasonable adjustments may clearly necessitate an element of cost to the employer and pay protection was but one form of cost to an employer. However, the question will always be whether the adjustment is reasonable or not. If the adjustment is reasonable the employer is required to make it.
However, there were particular circumstances in this case including that the employee had continued to receive the enhanced rate of pay for almost a year and had expected it would be a long term arrangement, and the employer’s main reason for wanting to discontinue paying at the higher rate was because of discontent it would create amongst other employees employed in the same role, as opposed to any particular financial reason.
The Employment Appeal Tribunal also stated they did not expect it would be an everyday event that an employer would be required to make up an employee’s pay long term to any significant extent.
However, if an employer is now offering a lower paid role to a disabled employee as a reasonable adjustment, it would appear that the company will now need to demonstrate that pay protection is something it has taken into consideration, and if it is not in a position to pay the higher salary, then there will need to be fairly robust reasons for this.