Greetings and welcome back to our weekly case law update. Last week’s case was a key judgment for those who regularly engage in without prejudice protected conversations. This week’s case will examine disability discrimination and suitable alternative roles.

Under the S6.1 of the Equality Act 2010 a person is disabled if they have a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on their ability to do normal day-to-day activities. For the purposes of the Act ‘substantial’ means more than minor or trivial and ‘long term’ means more than twelve months. Previous examples of disability have included cancer, depression, deafness and epilepsy.

Today’s questions

Is dismissing a disabled employee for refusing to take a pay cut discrimination?

Does a decrease in salary for an alternative, less skilled role that has been held for over a year amount to a contractual variation?

The Respondent, G4S, is in the business of ATM replenishment and maintenance. Mr Powell, the Claimant, had been employed by the Respondent since 1997 in a variety of roles, including driver, vault officer and engineer.

Engineers were paid more than drivers as their role required higher level of skills. The Respondent had been sure to notify the Claimant of all changes to his terms of employment, including salary, each time his role was changed.

The Claimant developed a problem with his lower back and it was agreed that he was no longer fit to perform roles that required heavy lifting or working in confined spaces. He was classed as disabled for the purposes of the Equality Act 2010.

The Respondent created a new role of Key Runner, this role involved the runner fetching keys and parts between sites and the Respondent’s depot. The role was designed to support engineers working in London, allowing them to use public transport.

The Claimant began working as a Key Runner and the Respondent did not notify him of any changes to his current terms of employment, his previous salary also remained unchanged. The Claimant was led to believe by his manager that this change of role would be long term.

However after a year the Respondent decided to discontinue the role in an organisational re-structuring. The Claimant was asked to look for a suitable alternate role in the current vacancies at the Respondent and told he would be dismissed on medical grounds if no suitable role could be found.

The Respondent reversed its decision to axe the role, allowing the Claimant to keep the Key Runner role permanently. However, as this role did not require any engineering skills the Respondent wanted to reduce the Claimant’s salary by £200 a month. The Claimant was unwilling to accept this and was dismissed on medical grounds.

The Claimant brought claims before Tribunal and the ET held there had been no contractual variation. It also found that the Respondent had discriminated against the Claimant as they dismissed him for refusing to agree to a lower rate of pay.

Both parties appealed the ETs decision. The Respondent’s appeal on disability discrimination was not upheld but the EAT allowed the Claimant’s cross-appeal on contractual variation. It held that the Respondent should have continued an arrangement which had already been in place for nearly a year and which it had led the Claimant to expect to be long-term.

The takeaway points:

Yes, a dismissal for refusing to take a pay cut can be discriminatory.

Yes, it is a contractual variation. In this case the employer had led the employee to believe the role was long term and had paid him at a higher rate of pay for over a year. To change his rate of pay was held to be unfair. The employer had even argued that keeping the Claimant on a higher wage would be unfair to less skilled staff working the same role but the EAT disagreed.