Legal

How far must firms go when making reasonable adjustments?

4 Oct 2021 By Joanne Frew

In light of a recent EAT ruling, Joanne Frew offers guidance on employers' duties regarding enhanced pay and disability

The case of Aleem v E-ACT Academy Trust involved a science teacher who on account of mental health was unable to continue in her teaching role. The claimant's mental ill health amounted to a disability under the Equality Act 2010 and she had significant periods of sickness absence. 

During a probationary period and a subsequent grievance and grievance appeal, the claimant returned to work in the role of cover supervisor, which attracted a lower rate of pay than the teachers' rate. However, during this temporary period she was paid by her employer at the higher teachers' rate. 

Following the probationary period and the grievance process, occupational health (OH) advised that the claimant remained long-term unfit to return to the teaching role. However, OH did confirm that the claimant would be fit to carry out the cover supervisor role. The claimant accepted the role, at the lower rates applicable to the cover supervisor position. 

The claimant brought a number of claims against her employer. The employment tribunal dismissed the claim that the employer had failed to make reasonable adjustments by not paying the claimant at the higher teachers' rate. 

The EAT dismissed the claimant's appeal. It was held that it was not reasonable to expect the employer to continue to pay the teachers' rate by way of an adjustment, once the probationary period and the grievance and grievance appeal had concluded. 

The employment tribunal had found correctly that during the interim period it was appropriate to pay the higher rate (as the employer duly did) as this action supported her return to work. 

The EAT also found that the tribunal had appropriately taken into account the significant additional cost should the teachers' rate be paid indefinitely. The tribunal had also correctly taken into account evidence from a witness that the employer was facing financial pressures at the time. 

There was also a cross-appeal brought by the employer with regard to the employment tribunal's finding that the relevant provision, criterion or practice had been applied and placed the claimant at a disadvantage because of her disability. This cross-appeal was also dismissed. 

This case serves as a useful reminder that the principle behind making reasonable adjustments is to help support employees to return to work. 

In a previous case regarding sick pay, the Court of Appeal confirmed that it would rarely be reasonable to pay enhanced sick pay to a disabled employee over a non-disabled employee and that disabled people must not be treated as ‘objects of charity’. 

The current case follows a similar theme, with the focus of reasonable adjustments being the return to work. However, it is important for employers to tread carefully and for the facts of each case to be considered. There have been previous cases where enhanced payments have been considered to be a reasonable adjustment. 

The concept of the duty to make reasonable adjustments has been subject to much case law. It is for the employment tribunal to objectively determine whether it would have been reasonable to make an adjustment in the circumstances. 

Factors such as whether the adjustment would ameliorate the disadvantage, the cost of the adjustment in light of the employer's financial resources and the extent of disruption on the employer can all be taken into account. It is essential for employers to ensure that their staff understand the concept of making reasonable adjustments and are appropriately trained on discrimination law. 

The Equality and Human Rights Commission (EHRC) statutory code provides useful examples of the types of reasonable adjustments which should be considered. The EHRC also highlights that it is good practice to ask the employee about possible adjustments. 

It is important to note that the employer must not pass the cost of the adjustment on to the disabled employee. It is for the employer to bear the cost. Employers must also ensure that the appropriate line managers are made fully aware of the adjustments being made. Poor communication can lead to an employer failing in its duty. 

Joanne Frew is global deputy head of employment & pensions and a partner in the UK employment team at DWF

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