Employment Law Cases
Reasonable adjustments and pay protection
Aleem v E-Act Academy
It was not a reasonable adjustment to continue to pay an employee their previous higher rate of pay after being moved to a lower-paid role because of their disability.
Ms Aleem worked as a teacher. She had a significant period of absence because of mental ill health which amounted to a disability under the Equality Act 2010. On her return to work in March 2016, she worked as a cover supervisor instead of carrying normal teaching duties. She continued to be paid as a teacher whilst she trialled the cover supervisor role for a probation period, despite the cover supervisor role attracting a lower salary. This remained the case until a grievance regarding her employer’s handling of matters, concluded in November 2016. Occupational health subsequently deemed Ms Aleem to be long-term unfit to return to a teaching role but fit to carry out the cover supervisor role. When Ms Aleem accepted a permanent cover supervisor role, the employer made it clear that she would receive the going rate for the position.
She brought a tribunal claim alleging that by not maintaining her teacher’s salary, her employer had failed to make a reasonable adjustment for her disability. Her claim was dismissed, the tribunal relying on various factors including the financial difficulties the employer faced, alongside the significant extra cost in continuing to pay the higher teacher rate indefinitely. Ms Aleem appealed.
The appeal was dismissed.
Whilst it was a reasonable adjustment to pay Ms Aleem at the higher teacher’s rate of pay whilst her return to work was being supported and internal processes were being handled, it was not reasonable to expect this pay protection to be permanent once this had concluded.
The question is what it is reasonable for an employer to do considering all the relevant circumstances, including practicability, cost, service delivery and business efficiency. Here the tribunal correctly considered the fact that the cost of maintaining Ms Aleem’s salary indefinitely would be substantial, against the backdrop of a publicly funded institution facing some financial pressures.
The fact that other cases had found that it was a reasonable adjustment to offer pay protection on an ongoing basis did not mean that it was a reasonable adjustment in this case. It was relevant that Ms Aleem had not been told that pay protection was permanent - the employer was at pains to make it clear that her pay would be reduced if she accepted the position on a permanent basis.
Link to judgment: https://www.bailii.org/uk/cases/UKEAT/2021/0099_20_2807.html
These types of cases are notoriously fact sensitive. By way of illustration, an earlier EAT decision - G4S Case Solutions v Powell - held that it was a reasonable adjustment for the employer to protect the pay of a disabled employee assigned to a less skilled role. A distinguishing factor in the G4S case however was that the employee had been given assurances that the previous pay level would be continued as part of an agreement to return to work.
This clearly was not the case here where Ms Aleem was informed that her pay would be adjusted after the grievance and probation period concluded, and she accepted the job on this basis.