Is it a reasonable adjustment to maintain an employee’s pay if an employee is only able to fulfil a lower paid role?

In Aleem v E-Act Academy Trust Limited, the Employment Appeal Tribunal (EAT) upheld an Employment Tribunal’s decision that it was not a reasonable adjustment to permanently protect a teacher’s pay who was no longer fit to teach because of her disability.

The Claimant (C) was a science teacher. Due to ill-health, she took significant periods of sickness absence and eventually returned to her role in the capacity of cover supervisor. During this period, C continued to be paid at the teacher’s rates while she was under probation in the new role and whilst a grievance was considered. Thereafter, C was offered the cover role at a reduced level of pay, which she accepted.

The Claimant argued that her employer had failed to make reasonable adjustments. The EAT had to consider the differing judgments of O’Hanlon, where it was held that maintaining pay was not a reasonable adjustment and G4S v Powell, where it was held that maintaining pay was a reasonable adjustment. The EAT explained that Powell had not set any general principle but that the ET in that case made a decision it was entitled to given the particular facts of that case, in particular that G4S had promised to protect pay indefinitely.

In Aleem, when considering whether the adjustment sought was reasonable, the EAT held that the tribunal was entitled to weigh the cost of the adjustment (long term pay protection) – in this case it was noted that it could have easily ran into a six-figure sum – against the employer’s financial position. It also noted that the Claimant was free to reject the offer and the terms but she chose to accept it and the contractual terms, including pay, with that role.