Disabled worker:‘more favourable’ treatment
Posted: 13th September 2016
Many employers may be surprised to note that it is inherent in the Equality Act 2010 that the duty to make reasonable adjustments may require them to treat a disabled employee more favourably than others. The point was made in a case in which a disabled security company engineer won the right to substantial compensation.
Due to worsening back problems, the man became unfit for his job working on the maintenance and repair of cash dispensing machines. He was moved to a driving role at the same rate of pay. He was led to believe that that arrangement would be permanent but was subsequently informed that he could only retain his job if he agreed to accept a 10 per cent reduction in pay. That led to an impasse and he was ultimately dismissed on medical grounds. His unfair dismissal and disability discrimination claims were later upheld by an Employment Tribunal (ET).
In challenging that decision, the man’s employer argued that it was entitled to pay him the rate appropriate to the driving role, which did not require engineering skills. It was not obliged to pay him more than non-disabled staff doing the same job and it was submitted that the ET’s decision was fundamentally contrary to the purpose of the reasonable adjustment provisions in the Act.
In dismissing the appeal, however, the Employment Appeal Tribunal could detect no error of law in the ET’s ruling. The man had been faced with a choice between either dismissal or taking a job at a lower rate of pay. There was no reason in principle why protecting the man’s pay in his new role should not be viewed as a reasonable adjustment. The amount of his compensation had yet to be assessed.