Employment Law Case Update: Failure to make reasonable adjustment considered fair

Making reasonable adjustments for an employee is an important consideration for employers regarding avoiding tribunal claims.  There are circumstances where not making reasonable adjustments could be considered fair by an Employment Tribunal.  Our Employment Law team here reviews the case of Mrs S Aleem v E-Act Academy Trust Limited 2021 and a notable landmark decision over reasonable adjustments.

Mrs Aleem worked as a teacher, but suffered from poor mental health which amounted to a disability and caused her to be off sick for several periods from 2014 to 2016. In March 2016, she agreed to return to work three days a week as a cover supervisor, initially for a trial period of three months. Though the cover supervisor role offered a lower rate of pay, Mrs Aleem continued to be paid her higher teacher’s salary for the trial period.

Her teacher’s salary was maintained into November 2016 while the employer dealt with a grievance and appeal raised by Mrs Aleem and while future options were considered. The employer then conveyed to Mrs Aleem that if she continued in the cover supervisor role after 21 November 2016, her pay would be reduced to that of the normal cover supervisor rate.

After an Occupational Health report found that Mrs Aleem was not fit to return to her teaching role, she decided to remain in the cover supervising role and consequently her pay was reduced.

Mrs Aleem filed a claim in the Employment Tribunal (ET) alleging that by reducing her rate of pay the employer had failed to make reasonable adjustments to accommodate her disability. The ET rejected her claim. It found that continuing to pay Mrs Aleem the higher teacher’s rate while she trialed the cover supervisor role was a reasonable adjustment, but that it would not have been reasonable to expect the arrangement to continue indefinitely. In reaching this decision, the ET took account of the fact that paying the higher salary indefinitely would be very costly to the employer.

Mrs Aleem appealed to the Employment Appeal Tribunal (EAT). She argued that the ET had erred in its decision as the employer had not provided any evidence that it could not afford to keep paying the higher rate indefinitely.

The EAT rejected Mrs Aleem’s appeal. It reasoned that in the circumstances of this case, there is no rule that an employer must continue to pay the higher rate of pay unless it can show serious financial difficulty. The ET was entitled to take into account the financial cost to the employer of continuing to pay the higher rate. While it had been a reasonable adjustment to pay Mrs Aleem the teacher’s rate temporarily while she trialed the role and her grievance was dealt with, it would not be a reasonable adjustment to continue to do so once the role became permanent.

This decision should bring some comfort to employers, as it establishes that it is not necessarily reasonable to expect an employer to continue to pay an employee their previous, higher rate of pay when they move to a lower paid role due to a disability. As this is an EAT decision it will be followed by lower tribunals in future decisions. However, employers should take note of the fact that it was considered a reasonable adjustment to maintain the higher rate of pay during the trial period and while handling a grievance, and that each case will depend on its facts. Employers should take care to explain their position, and be clear where they intend to reduce pay. 

If you have any questions regarding this article, you can call our Employment team today on 023 8071 7717 or email employment@warnergoodman.co.uk.

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ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.