Following an absence due to back problems Mr Powell was no longer able to undertake his role as an ATM engineer. G4S created a role for him as a key runner which involved delivering keys and parts to engineers who could then use public transport to travel between jobs. G4S continued to pay Mr Powell his engineer's salary and he believed this to be a long term arrangement. However, G4S subsequently considered discontinuing the role for operational reasons. After Mr Powell raised a grievance G4S decided to make the role permanent but at a lower rate of pay to reflect that it did not need engineering skills. Mr Powell rejected this pay reduction and was dismissed.
An employment tribunal rejected Mr Powell's argument that there had been an agreed variation to his contract when he returned to work which included him remaining on the higher rate of pay while carrying out the key runner role. However, they did accept that G4S was required to continue to pay the higher rate as a reasonable adjustment.
Following an appeal to the EAT, the EAT upheld the Tribunal's finding that G4S were required, as a reasonable adjustment, to employ Mr Powell as a key runner on his original salary. The EAT were of the view that the cost of pay protection was no different to the cost of providing training and support for an employee and the provision of these things met with the objective of keeping employees in work.
Factors that were taken into account by the EAT in this case were that prior to the dismissal G4S had continued to pay Mr Powell the higher rate for nearly a year, he had been led to believe (or at least not disabused of his belief) that it was a permanent arrangement and that G4S was a company with significant resources. They were also not impressed by an argument presented by G4S that the main reason for not continuing to pay the higher rate was the likelihood of discontent from other employees. The EAT did note though that an adjustment may eventually cease to be reasonable, for example, if the economic circumstances of a business changed.
This case does not mean that disabled employees must always be paid their existing salary when moved to a lesser job as a reasonable adjustment. What it means is that pay protection should be considered on a case by case basis, and that potential upset to other employees alone is unlikely to be enough to rule it out. The decision in this case is surprising and it may be that the decision will be appealed. For guidance on what factors should be taken into account when considering making reasonable adjustments see the EHRC Guidance.