Is Protecting Pay a Reasonable Adjustment?
The Employment Appeal Tribunal (EAT) held that it was not a reasonable adjustment to continue to pay an employee their previous higher teacher rate after being moved to the lower paid role of cover supervisor because of their disability.
Aleem v E-Act Academy
Ms Aleem was employed as a science teacher at E-Act Academy Trust Limited (E-Act), a Multi-Academy Trust. Following a period of sickness on account of her mental ill health, she became unable to teach.
E-Act rejected her request to teach for two and a half days per week, instead of the four days she had been working following a period of sickness absence, as it could not be confident of being able to get and maintain supply cover for the other two and a half days. Ms Aleem raised a grievance whilst off sick but, at an absence review meeting, accepted the option of returning to work three days a week as a cover supervisor.
The role of cover supervisor attracted a lower rate of pay than her teacher's pay rate. However, she continued to be paid the higher rate for the initial probation period in the new role, and then until her grievance and grievance appeal regarding E-Act's handling of the matters had come to a conclusion.
Occupational health subsequently deemed Ms Aleem to be long-term unfit to return to the teaching role, but fit to carry out the cover supervisor's role. Ms Aleem accepted this, and the rates applicable to it.
An Employment Tribunal dismissed Ms Aleem's claim that not continuing to pay her at the teacher rate was a failure to comply with the duty of reasonable adjustment, relying in part on the 'financial difficulties' the school faced. Ms Aleem appealed.
A Temporary Reasonable Adjustment
The EAT dismissed Ms Aleem's appeal, concluding that the Tribunal had not erred in law and had properly concluded that it was not reasonable to expect E-Act to continue to pay Ms Aleem her higher teacher rate once the probation period and grievance processes had concluded.
It held that the Tribunal was entitled to find that the higher rate of pay was a temporary reasonable adjustment but that it was not reasonable for this to apply any longer, taking into account the significant additional cost of maintaining Ms Aleem's teacher's salary indefinitely. It was also relevant that Ms Aleem had been told that the higher rate of pay was temporary.
Clarity Is Key
In the earlier case of G4S Case Solutions (UK) Limited v Powell, the EAT held that it was a reasonable adjustment for an employee to continue to receive a previous higher rate of pay after returning to work in a new role. However, in the G4S case the disabled employee had been led to believe that the new arrangement was long-term, highlighting that the EAT's decision will always turn on the particular facts of the case.
The cost of the adjustment and what the employee has been led to believe will be relevant factors as to whether there has been a failure to comply with the duty to make reasonable adjustments. It is worth noting that the protection of Ms Aleem's Teacher rate of pay during her probationary period in the cover supervisor role is specific to the facts of this case, and does not mean that employers are required to protect pay as a reasonable adjustment in every case. However, this case is a helpful reminder for employers that where pay is enhanced as a reasonable adjustment on a temporary basis, this should be made clear to the employee.