The Employment Appeal Tribunal (EAT) has held in Aleem v E-Act Academy Trust Ltd that it was not a reasonable adjustment for a school to protect a teacher’s pay indefinitely once she was no longer able to do her job. When deciding what is reasonable, it said that tribunals can take a number of factors into account, including practicability, cost, service delivery and/or business efficiency.

Basic facts

Ms Aleem, a full-time science teacher, went on sick leave in March 2014 due to mental ill health. In June 2015, it was agreed that she was fit to return four days per week, but she was signed off sick again in November 2015. In January 2016, the school rejected her request to work two and a half days per week and she raised a grievance.

At an absence review meeting in February 2016, she agreed to return to work for three days a week as a cover supervisor for a trial period. Although it attracted a lower rate of pay, it was agreed that she would be paid at her teacher rate during the trial. At a review meeting in May 2016, she indicated that she wished to formally pursue her grievance so the school agreed to let her remain in the cover supervisor role, while continuing to receive the teacher rate of pay, until the grievance was resolved.

Although her grievance was rejected, as was her appeal against that decision, it was agreed that she would continue to be paid at the teacher rate until late November 2016 to allow her to review her options, which included returning to work as a teacher or as a cover supervisor. The school made it clear that if she chose to work as a cover supervisor her pay would be reduced to the applicable rate. Following an occupational health report, which confirmed she was not fit to return to a teaching role, Ms Aleem accepted the job as cover supervisor and her pay was reduced accordingly.

Ms Aleem brought a tribunal claim for disability discrimination, arguing that the academy had failed to comply with its duty of reasonable adjustment when it applied the provision, criterion or practice of requiring her to work either four days per week as a science teacher, or as a cover supervisor, at the lower rate applicable to that role.

Tribunal decision

In terms of balancing the needs of the employee and the particular circumstances of the school, the tribunal held that it had been a reasonable adjustment to pay protect Ms Aleem’s salary for nine months. It was not, however, a reasonable adjustment to continue to pay her indefinitely as a teacher, based on its findings of fact. This was because continuing to protect her pay until she retired would cost the academy (which was under financial pressure) “many thousands of pounds”. It was later clarified that the estimated costs of indefinite pay protection were in excess of six figures. Ms Aleem appealed.

EAT decision

Dismissing the appeal, the EAT held that it was not reasonable to expect the academy to continue to pay Ms Aleem at the rates associated with the old role, once the probation period and grievance processes had been completed. The tribunal was therefore right to conclude that pay protection was a reasonable adjustment to support Ms Aleem in her return to work, but only while those processes were ongoing.

The tribunal was also right to take account of the significant additional cost that would be involved in continuing to pay her at the teacher rate of pay indefinitely. The EAT agreed with the tribunal that it was correct to take account of the evidence of a witness that the academy was facing financial pressures at the time, when concluding that the proposed adjustment was not reasonable. In determining what is reasonable, the EAT held that tribunals can look at all the relevant circumstances such as practicability, cost, service delivery and/or business efficiency.

Comment

This case is important in re-stating the principle that periods of pay protection can amount to a reasonable adjustment. Although the tribunal decided that indefinite pay protection was not reasonable in this case, another tribunal might well have come to a different conclusion.

It is important to remember that the purpose of a reasonable adjustment is to enable disabled employees to remain in employment and pay protection may well be a reasonable adjustment to promote that purpose. If indefinite pay protection is rejected, Thompsons recommend that employees scrutinise the financial resources and negotiate with their employer. This might include proposing a longer period of pay protection that is subject to regular review particularly if the employee’s health might improve - a point that was not considered in this case.