In G4S Cash Solutions (UK) Ltd v Powell, Powell (P) is disabled because of a lower back injury.  He was employed as a SLM engineer. The worsening of P’s impairment meant that he became unfit for jobs involving heavy lifting or work in confined spaces.  Following P’s return to work after a period of absence, he was offered a newly created role as a ‘key runner’, delivering parts for engineers to use, but retaining his original salary as a SLM engineer. P understood the change of role to be long-term and his line manager led him to believe this was the case.

A year later, P was told that the key runner role did not require the engineering skills held by a SLM engineer and P’s basic salary would reduce by £207 per month. P refused to accept this reduction.  No other suitable vacancy could be identified, P was dismissed and he presented claims for unfair dismissal and disability discrimination.

The ET rejected P’s claim that there had been a contract variation. It decided that where an employer has a statutory duty to make a reasonable adjustment, an adjustment can be effective without the consent of the employee, which therefore it differs from a variation of contract, which requires consent. However, the ET held that the employer was required, as a reasonable adjustment, to employ P as a key runner at his existing rate of pay and as a consequence the dismissal amounted to disability discrimination and was unfair. 

The EAT rejected the employer’s appeal. In doing so, however, it first held that the ET’s decision that there had been no contract variation was an error of law. It was clear that there was a variation of the contract when P was originally offered the runner’s role on the same salary as his previous job. If an employer proposes an adjustment which is incompatible with the terms of the contract, the employee is entitled to decline it: the adjustment will not be effective without agreement. Here, P had not agreed and the employer was not entitled to impose the change.

The EAT then went on to hold that the ET had made no error of law in deciding the employer had failed to make a reasonable adjustment and the dismissal was unfair. P was at a substantial disadvantage compared to non-disabled people because he was unable to carry out his duties as an SLM engineer and therefore be contractually entitled to the rate of pay for that job.  A reasonable adjustment was to employ him in the key running role, as a permanent position, without a reduction in pay because: (i) it was a new role; (ii) the employer had a free hand to determine the rate of pay; and (iii) while it involved an element of positive discrimination, it was justified in the interests of securing P’s continued employment at relatively small cost, in the long term, to the employer.

The EAT also approved the ET’s rejection of the employer’s argument that paying P at the higher rate would cause discontent amongst other employees. This was treatment which was completely individual and restricted to the circumstances of P’s case. If anyone complained, the employer had an obviously available argument that what they were doing was a reasonable adjustment for a disabled employee, and that the law required it.  

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