We have an employee who has a disability and have had him assessed by Occupational Health in relation to his ability to continue to carry out his role and responsibilities. Occupational Health has confirmed he is not fit to carry out those duties.  We do, however, have alternative work he could do but that role attracts a lesser salary.  Can we employ him in this alternative role on the terms and conditions and salary that that role attracts? 

It appears from your query that the Company has recognised that your employee suffers from a disability and is, therefore, a disabled person within that meaning under the Disability Discrimination Act 1995 (“the DDA”).  It is good that you have had your employee examined and assessed to ascertain whether his disability allows him to carry out his role and its duties.  I am assuming that your Occupational Health Report has indicated what duties, responsibilities etc., this particular employee may undertake.

You will also be aware that under the DDA an employer may have a duty to consider reasonable adjustments to assist disabled employees in certain circumstances and that this duty to consider reasonable adjustments is to assess whether the adjustment itself will prevent any disadvantage to the disabled employee continuing.  Examples of adjustments include making adjustment to premises, allocating some of a disabled person’s duties to another employee, altering the disabled person’s hours of working or training, or modifying performance related pay arrangements.

The Code of Practice issued by the Equality Commission for NI also suggests that an employer might wish to transfer a disabled employee to an existing vacancy and whilst your question does not indicate whether you have a “vacancy”, it is clear that you have suitable alternative employment which this disabled employee can undertake.

There are no clear provisions within the Code of Practice, or the DDA itself, which give guidance as to whether in transferring a disabled employee to alternative employment, or changing hours etc., that the employer should automatically maintain the employee’s original rate of pay.  There is, however, reference to modifying policies, procedures or other arrangements.  Often this might apply to absence processes or redundancy selection.  There is, however, a recent English decision where an employer, who refused to maintain higher pay for a different role undertaken by a disabled employee, was held to have failed in its duty to consider reasonable adjustments.  In that particular case, there was a difference of approximately £207 gross monthly salary and the Employment Appeal Tribunal was of the opinion that maintaining higher salary could be a reasonable adjustment.

Whilst that case is likely to be fact specific, and indeed the EAT said it should not be taken as “an everyday event”, maintaining salary at its original level could be considered a reasonable adjustment.  It would be necessary to assess factors such as the size of your Company, its resources, the finance available to you and indeed, how practicable the step is in removing this disadvantage from this particular employee, in considering whether this is an adjustment you would be required to make.  Pay protection for this particular employee could be seen as a reasonable adjustment to keep him at work and may be no different to a step taken, and costs incurred, in providing extra support to the individual.

There is a risk therefore that offering the employee alternative work, but at a lesser salary, could amount to a failure to make reasonable adjustments but much will depend on the Company’s individual particular circumstances.