Reasonable adjustments and pay

The right to reasonable adjustments is a core tenet of the Equality Act 2010 protections around disability. In the early years of the legislation which at that time was the Disability Discrimination Act 1995 the majority of case law being formulated by the courts and tribunals was around reasonable adjustments. The seminal case of Archibald v Fife Council in the House of Lords (now the Supreme Court) in 2004 still stands as the leading authority on this area of the law. 

But what about pay? Am I entitled to reasonable adjustments around pay?

We are routinely asked this question and the short answer is no – it will rarely, if ever, be a reasonable adjustment to adjust your pay because of your disability. 

The leading authority on this is O’Hanlon v HMRC . And this remains the rule today. 

Are there any exceptions to this rule?

There have been a couple of cases where this rule was deviated from. You are likely to get short shrift from your employer any time you ask for your pay to be adjusted because of disability and are unlikely to succeed with a section 15 discrimination arising from claim because your employer will be able to adequately justify their position. There are however a couple of situations where you may succeed depending on the specific circumstances of your situation. As always you are advised to take legal advice.

If my employer is the reason I cannot work, can I get paid?

The first is if you are unable to work because your employer refuses to make the adjustments you need and you are at home but no longer officially under a sick note. The authority on this is the case of Meikle v Nottinghamshire CC. If your employer is the reason you cannot work, not the symptoms of your disability because your GP or OH has signed you back to work, you may be entitled to be paid pending those adjustments being put in place. 

If my employer has changed my job but kept me on the same pay, can I stay on that rate of pay?

The second is if your employer has made a reasonable adjustment to move you into a different role on a different pay rate but has forgotten to adjust your pay lower and has continued to pay you for a period of time. The case on this is G4S Cash Solutions v Powell. Your employer may have inadvertently varied your contract of employment and in reliance on it you would then have the right for it to continue.  

You can read more about our expertise around disability discrimination on our website including here.