Tue 31 Aug 2021

Pay protection as a reasonable adjustment

Is maintaining an indefinite pay protection a reasonable adjustment when an employee can no longer remain in the same role due to a disability? The Employment Appeal Tribunal ("EAT") recently held that it was not a reasonable adjustment for the employer to continue to pay an employee indefinitely at their teacher rate of pay after she agreed to permanently move, due to a disability, to a role which attracted a lower rate of pay. They did though find that it was a reasonable adjustment for the employer to have done this on a temporary basis. The full judgement of Aleem v E-Act Academy Trust Limited ("E-Act Academy") can be found here.

Mrs Aleem ("the Claimant") was employed as a full-time science teacher in the E-Act Academy ("the Respondent"). In March 2014, due to her mental ill health, the Claimant began a period of sickness absence. Following an attempt to return to work four days a week instead of her normal five days, the Claimant was signed off again. Subsequently, a request from the Claimant to return to teaching two and half days per week was rejected by the Respondent as not being feasible - the Respondent was not confident of being able to find and maintain supply cover for the other two and half days. The Claimant remained off sick. The Claimant then raised a formal grievance. At an absence review meeting, the Claimant was offered the option of returning to work three days per week as a cover supervisor initially for a three month trial period, which she accepted. Although the rate of pay for the cover supervisor role was lower than the teacher's rate of pay, the Respondent agreed to continue to pay the rate of pay applicable to a teacher for the initial trial period. The Claimant returned to work in March 2016. At the May review meeting, several options going forward were discussed including the Claimant continuing as a cover supervisor on the rate for that role until the end of the summer term or permanently, or resuming work four days per week, as a teacher, until the end of term or permanently.

The Claimant chose to return to work four days per week as a teacher for the summer term while indicating she still wished to pursue the grievance that she had raised. It was then agreed that the Claimant would remain in her current cover supervisor role, continuing to receive the teacher rate of pay, until the issues raised by the grievance had been formally resolved. In September 2016, the substantive grievance was not upheld. On appeal, the appeal committee decided to uphold the original grievance decision and notified the Claimant on 1 November 2016. During the entire grievance process the Claimant's rate of pay was maintained. The appeal committee also decided to maintain the Claimant's current pay until 21 November 2016 to find a way forward with the benefit of a further Occupational Health ("OH") report. The Claimant was informed that if she decided to continue as a cover supervisor after that date, it would be at the cover supervisor pay rate. She also had the option of returning to work as a teacher on teachers’ terms. An OH report of 6 November 2016 indicated that the Claimant was not fit for a full-time teaching role but was fit for a part-time cover supervisor role. The OH report also highlighted her health condition was long term amounting to a disability under the Equality Act 2010. The Claimant therefore continued as a part-time cover supervisor on the rate of pay for that role. The Claimant, in bringing her claim for disability discrimination in the Employment Tribunal ("ET"), claimed that by not continuing to maintain her teacher's salary, the Respondent had failed to make a reasonable adjustment for her disability.

The ET dismissed the claim and found in favour of the Respondent, having relied in part on the "financial difficulties" faced by the school. The Claimant appealed, arguing the ET had erred in coming to its decision as the Respondent had not presented any evidence that it could not afford to pay the Claimant at the teacher salary rate indefinitely.

The Claimant's appeal was also dismissed. The EAT found that the ET had properly concluded that it was not reasonable to expect the Respondent to continue to pay the Claimant at the rates associated with her former role, once the trial period and grievance processes had been completed. It did find though that it was a reasonable adjustment to do so on a temporary basis during the currency of those processes, in order to support the Claimant's return to work.

Although the Claimant failed in this case it is interesting to note that it was considered to be a reasonable adjustment to maintain the salary throughout the trial period and the grievance process and employers should bear this in mind albeit each case will be fact specific.


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