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
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
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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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In SSE Generation Limited v Hochtief Solutions AG and another decided on 21st December 2016, the Court of Session in Scotland considered a contractor's potential design liability under the NEC Form of Contract.
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