09 March 2017 
Helen Scott, Executive Director
Two recent EAT decisions on disability discrimination have reached somewhat surprising conclusions and could have far-reaching implications for universities as employers.
In G4S Cash Solutions (UK) Ltd v Powell, the EAT considered whether continuing to pay a disabled employee at his existing rate of pay, in a lesser role, was a reasonable adjustment.
Case law has established that an employer does not usually need to continue to pay a disabled employee on sick leave for any longer than it would pay a non-disabled employee who is off sick and that reducing pay during a phased return to work is not a failure to make a reasonable adjustment.
Mr Powell, a maintenance engineer, suffered with back pain and it was accepted he was disabled. When he returned to work he was given a new, less skilled role of 'key runner' but retained his original salary. He was led to believe this role and his protected pay were long term adjustments. G4S later proposed reducing Mr Powell's pay by 10% and dismissed him when he refused to accept this reduction.
The tribunal found that the dismissal was discriminatory and unfair and that reasonable adjustments extended to maintaining his original pay. G4S appealed the reasonable adjustment finding.
The EAT dismissed the appeal, holding that although it will not be an "everyday event", protecting an employee's existing pay may be a reasonable adjustment, as part of a package of adjustments, to get the employee back to work.
This decision demonstrates that pay protection may be a reasonable adjustment. Determining what is reasonable is assessed on a case-by-case basis and depends on the particular factual circumstances. What the employee is told about the duration of pay protection will be highly relevant.
In this case rather than indicating that the protection was temporary, G4S gave the impression that it was permanent. If the intention is that pay protection will be an interim measure, it is essential that this is made clear when the adjustment is proposed.
In City of York Council v Grosset, the EAT held that when considering whether an employee suffered discrimination arising from disability, a tribunal could take into account medical evidence that was not available to the employer at the time of dismissal.
A claim for discrimination arising from disability is established where:
An employer is not liable where it did not know, and could not have been expected to know, that the employee was disabled.
Mr Grosset was a teacher. The Council knew he had cystic fibrosis and conceded he was disabled. Mr Grosset's workload increased, he struggled to cope and suffered stress which exacerbated his condition.
During this time, he showed an 18-rated film to a class of 15-16 year olds. When the head teacher discovered this, Mr Grosset was suspended and subsequently dismissed for gross misconduct. The medical evidence available at the time of dismissal did not demonstrate a link between the misconduct and the disability.
Mr Grosset brought various claims including unfair dismissal and disability discrimination. The medical evidence presented at tribunal showed a link between the misconduct and the disability. The tribunal dismissed the unfair dismissal claim, applying the band of reasonable responses test and taking into account the medical evidence available at the time of dismissal. However, it upheld the discrimination arising from disability claim, taking into account the medical evidence provided to the tribunal.
The Council appealed on the basis that at the time of dismissal it was not aware there was a link between Mr Grosset's misconduct and his disability.
The EAT held that the reason for the dismissal was misconduct and based on the medical evidence before the tribunal, the misconduct had arisen in consequence of Mr Grosset's disability. It was not necessary to decide whether the Council knew there was a link between the misconduct and the disability. An employer's knowledge is only relevant in determining whether it knew the employee was disabled.
This case demonstrates that discrimination arising from disability can occur even where an employer formed a reasonable conclusion (based on the evidence available at the time) that an employee's misconduct was not caused by his disability.
In cases where a link is established between the employee's actions and a disability an employer will only avoid liability where it did not know, and could not reasonably have been expected to know, that the employee was disabled or where its actions can be objectively justified. On the basis of this judgment an employer will not escape liability simply because the evidence available at the time of its decision did not establish a link between the behaviour and the employee's disability.
Jane Byford, Partner, Veale Wasbrough Vizards
