The Claimant, Mrs Aleem, was a science teacher who, as a result of a disability, became unable to work full-time. When she returned to work after a period of sickness absence in March 2016, she worked as a cover supervisor instead of resuming her teaching position. At this point, 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, and grievance appeal, regarding the Respondent’s handling of matters, had concluded in November 2016.
Following the grievance process, OH advice indicated that the Claimant remained unfit to return to a teaching role and that this would be the case for the long-term. However, they did confirm that she was fit to carry out the cover supervisor role. When the Claimant accepted a permanent cover supervisor role in November 2016, the Respondent made it clear that she would receive the going rate for that position. The Claimant brought a claim against her employer for disability discrimination, claiming that by not maintaining her teacher salary, her employer had failed to make a reasonable adjustment for her disability.
The Claimant’s Tribunal claim failed. In particular, the Tribunal dismissed the claim that it was a failure to make reasonable adjustments not to continue to pay the Claimant a teacher’s salary from November 2016 onwards. In making this decision, the Tribunal relied on a number of factors, including the “financial difficulties” the Respondent faced, alongside the significant extra cost in continuing to pay the higher teacher rate indefinitely.
The Claimant appealed on a number of grounds. The Respondent also cross-appealed.
The EAT rejected the Claimant’s appeal. It confirmed that the Tribunal had properly concluded that it was not reasonable to expect the Respondent to continue to pay the Claimant at the rates associated with an old role, once the grievance procedure and probation period had been completed. The Tribunal had correctly found that it was a reasonable adjustment to continue the old rate of pay whilst those processes were being conducted, in order to support the Claimant’s return to work, but thereafter, these considerations no longer applied.
The EAT also held that the Tribunal was not wrong to consider: (i) the significant additional cost that would be involved if they had continued to pay her at her original rate; and/or (ii) evidence of the financial difficulties the Respondent was facing, when concluding that the adjustment was not reasonable.
It’s interesting to note that the EAT in Aleem addressed a previous decision of the EAT in G4S Cash Solutions (UK) Ltd v Powell UKEAT/0243/15/RN in its judgment.
In Powell, the EAT had suggested that maintaining an employee’s rate of pay despite moving them to a lower paid position could be a reasonable adjustment. The decision in Aleem demonstrates this will not always be the case. It is important to note that one of the key differences between these two cases is the information that was provided to the employee at the relevant time. In Powell, 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 in Aleem, where the Claimant was informed that her pay would be adjusted after the grievance and probation period concluded, and the Claimant accepted the job on this basis.
In this case, the Tribunal had to decide whether, in the “new” circumstances, it was incumbent on the Respondent, as a reasonable adjustment, to maintain the Claimant’s teacher salary, once she had chosen to accept the offer of work in the cover supervisor’s role on a permanent and indefinite basis going forward. The fact that it had been a reasonable adjustment previously in particular circumstances (e.g. to help support the Claimant to get back to work, during a probationary period in the cover supervisor role, and when there was a live and unresolved grievance) to maintain that rate, did not prove that it would be reasonable to do so, going forward, in those different circumstances.
This case is a helpful reminder that a number of factors, such as the cost of the adjustment in the light of the employer’s financial resources, and the disruption that the adjustment would have had on the employer’s activities, will be relevant to a Tribunal determining whether a particular adjustment is reasonable in the circumstances.