Does an employer have a duty to make reasonable adjustments for a disabled employee to continue to pay a higher salary when an employee is moved to a lesser role?

According to the recent decision of the Employment Appeal Tribunal (EAT) in the case of ‘G4S Cash Solutions (UK) Ltd -v- Powell’, the answer is surprisingly, yes.

The facts of the case

Mr Powell worked for GCSU Ltd (the Company) as an engineer responsible for maintaining ATM’s in central London. Over the years, he developed back problems and, by mid-2012, he was no longer fit for jobs involving heavy lifting or working. Upon his return to work following a period of sickness absence in 2012, Mr Powell began working in a newly created role of ‘key runner’, which involved driving from the Company’s depot to deliver parts and keys to its ATM engineers, this role allowed him to travel between jobs by public transport. The Company continued to pay Mr Powell his original engineer’s salary for the key runner role, and he considered this to be a long term arrangement.

In May 2013, the Company considered discontinuing the key runner role for operational reasons. It told Mr Powell that the role was not permanent and gave him a list of alternative vacancies to consider, stating that if nothing was suitable then he could be dismissed on medical grounds. Mr Powell consulted his solicitor and presented a grievance, stating that the Company was attempting to alter his terms and conditions.

As a result, the Company decided to make the key runner role permanent, but at a lower rate of pay to reflect that the role did not require engineering skills, which in turn entailed a 10% pay reduction. Mr Powell was not willing to accept this reduction and as such he was dismissed from his employment on 8 October 2013.

An Employment Tribunal (ET) rejected Mr Powell’s claim that there had been an agreed variation to his contract of employment when he commenced in the key runner role, which entitled him to continue in that role at his original salary on a permanent basis. The ET held that the Company was required under Section 20 of the Equality Act 2010 (‘duty to make adjustments’), to employ Mr Powell as a key runner at his original rate of pay.

The outcome

The ET found that Mr Powell’s dismissal was discriminatory and unfair, and that the reasonable adjustments required extended to maintaining Mr Powell’s former pay in his new role. The Company appealed against this finding, and Mr Powell cross-appealed on the contractual variation point.

The Appeal

The EAT found that there had been a variation of Mr Powell’s contract to begin with which was agreed but a subsequent variation could not be imposed without his acceptance, when he undertook the role of key runner and he was not entitled to continue in that role on a permanent basis on a higher salary.

Additionally, the EAT found no reason in principle why the duty to make reasonable adjustments would not extend to protecting an employee’s pay, in order to counter a disabled employee’s disadvantage.

Practical tips for Employers

• Employers should always be clear when offering roles to employees as to whether they are intended to be permanent roles or for a defined fixed period.

• Be alive to the fact that consent maybe required to make a reasonable adjustment which may change an employee’s terms and conditions.

• The EAT confirmed that it did not expect claims for pay protection in circumstances like in this case to be an ‘everyday event’ for ET’s, however, it did confirm that it was possible to foresee cases where it may be a reasonable adjustment in order to get an employee back to work, or to keep an employee in work in accordance with the objective of the legislation.

• This decision highlights that the question in such situations will always be, is it reasonable for an employer to have to take steps to avoid a disabled employee’s disadvantage? This will have to be assessed on a case by case basis, taking in to consideration the size and resources of your business and the overall practicality and financial cost to the business.

This is an interesting case and an outcome that employers should be mindful of, when faced with decision making regarding reasonable adjustments. Should you require any advice or assistance with regards to making reasonable adjustments in respect of an employee you should contact Lindsey or Sarah on [email protected] or on 0161 478 3800.

You have been asked by an employee if they can start working flexible hours to help manage their childcare arrangements. Do you know what to do? Are you taking advantage of flexible working and the benefits for not only your employees but for your business also? In today’s society the need for flexibility has never been greater and employees have many competing responsibilities in their lives.

What is flexible working?
The CIPD describes ‘flexible working’ as a type of working arrangement which gives a degree of flexibility on how long, where, when and at what times employees work.

What flexible working can look like?
•Reduced working hours.
•Compressed hours- working usual hours in fewer and/or longer days.
•Part time working.
•Job sharing- sharing the responsibility of a full time position.
•Term time working- reducing hours or taking time off during school holidays.
•Working from home- advances in technology make it simpler to keep in touch.
•Flexitime- usually adopting a core hours’ approach.

Benefits
The CIPD, following their research regarding flexible working, indicate the direct benefits for a business are associated with real estate due to remote working and hot desking arrangements. Indirect benefits fall under the psychological contract where employees may be more emotionally engaged with the business.
Other benefits can include;
•Attracting and retaining employees is key for businesses and flexible working has become high on the agenda.
•Promoting the benefits internally as well as externally will increase company profile and brand within the market. Being an employer of choice!
•Reduction of absence, sickness and stress levels.
•A more efficient and productive organisation.

Managing flexible workers
•Management play a critical role and must ensure that it should be more about performance and outcomes rather than presenteeism.
•Training for management to understand the benefits of flexible working can bring to an organisation.
•Set clear objectives and expectations.
•Trust is key and managers need to trust employees and employees need to feel trusted.

Statutory process
Effective from 30 June 2014 the flexible working law changed whereby anyone who has 26 weeks length of service has the statutory right to make a flexible working request, it is not limited to those with children.
The employee needs to make a request in writing, stating what they want to change and how they think it could affect the business. The employee must state whether they have made a flexible working request before and the date of that application.
Acas advise that employers are to consider the employees request for flexible working in a reasonable manner. It is advisable to arrange a meeting with the employee once the request has been made to discuss the details. Ensure that this meeting is dealt with like any other management conversation, in a confidential manner. However, if the employer is happy to accept the request a meeting may not always be needed. The employer must also confirm the decision as soon as possible to the employee of the outcome of the request. The law requires the process to be completed within three months of the request being received, this includes any appeals.
Employers can only refuse a flexible working request for the following reasons;
•the burden of additional costs
•an inability to reorganise work amongst existing staff
•an inability to recruit additional staff
•a detrimental impact on quality
•a detrimental impact on performance
•detrimental effect on ability to meet customer demand
•insufficient work for the periods the employee proposes to work
•a planned structural changes to the business.
Wherever possible it is advisable to reach an agreement on flexible working within the workplace. Contact one of our Employment Lawyers for further guidance!

Challenges
•Increase administration in terms of record keeping
•The risk of being under staffed at certain points of the working day.
•In terms of job sharing there may be two lots of administration, induction and recruitment costs.
•Working longer hours may cause fatigue and increased absence.
•If not fully implemented effectively, benefits are not fully gained.

Review and guide
•Employers are to review existing policies and procedures to ensure that it accomodates any flexible working practices in place.
•Review absence and engagement levels to see what the impact of flexible working arrangements has had on the business find more information.
•Train managers on how to manage flexible working requests and treat employees fairly in the process.

Managing flexible working can be a complex process and we would always recommend you seek guidance on managing this. For further information or if you want to discuss a current issue please contact us [email protected] or 0161 478 3800.

September can bring change to many people’s working lives, some may start a new job, others may have children starting school or businesses may be rethinking their business strategy. Do you have new employees starting to work with you? Do you know what makes an effective induction and onboarding process? When an employee starts work with you it is key to ensure that you are prepared for when they join. There is nothing worse than a new recruit turning up and no one knows who they are; no resources are ready and the line manager is nowhere to be seen. Employers should be mindful that when a new employee starts it isn’t about their first day or week, it is an ongoing process, which enables them to absorb the information gradually rather than hit them too much too soon. The induction process allows new employees quickly to become effective and motivated.

What is induction?
The CIPD (2015) state that “induction at work refers to the process where employees adjust or acclimatise to their jobs and working environment”. All businesses should have an induction process whereby they introduce the new employee to the business and have to tools and resources to be able to start the job. Onboarding looks at a rather larger picture from the recruitment stage up until the employee is well and truly settled and performing to the standard expected of that role.

Benefits
•Employee settles in well.
•Gains an understanding of the organisation’s policies, procedures and culture.
•Lays the foundation for a positive working relationship.
•Promotes corporate image and establishes the company’s personality.
•The employee will get an understanding of where they fit within the business and how they contribute.;
•They are more likely to remain with the organisation- reducing recruitment costs.

Plan/Timetable
•Having a structured plan of what is expected in the induction process can limit any stress the employee may feel when starting a new job.
•The plan should look at who should be involved, meetings you want them to attend and people they need to meet.
•Ensure you have line manager engagement from the start, after all it is their responsibility to ensure that the new employee settles in well into the business.

Remember!
•Continually review the induction process to ensure that it is relevant to the business and the employees. Is the corporate information up to date? Get feedback from the employees about the induction process, what they liked and what they felt could be improved upon.

Please contact our HR Specialists at Peach [email protected] or 0161 478 3800 to discuss further on the topic of inductions. Or click here to complete the online form and we will send you our Peach top tips for an effective induction!

Any Employment Lawyers looking for a change or HR professionals looking to join our exciting team? Great opportunity to be part of a growing business with a difference!
Contact us for further details at [email protected] or call on 0161 478 3800.