Is it a reasonable adjustment to protect a teacher’s pay when their disability means that they can no longer teach?

This is a question that we are often asked in circumstances where a teacher who is certified as unfit to teach is redeployed. Helpfully the Employment Appeal Tribunal has provided some useful comment on this issue in the recent case of Aleem v E-Act Academy.

Background

In this case Mrs Aleem was a science teacher. She had a significant period of absence as a result of mental ill health which amounted to a disability under the Equality Act 2010.

Mrs Aleem did eventually return to work in March 2016 although rather than returning to her teaching role, she agreed to be redeployed into an alternative role as cover supervisor. As is typical in schools, this role attracted a much lower pay than her former role as a teacher.

E0-Act Academy agreed to protect her teachers’ rate of pay whilst she tried out the cover supervisor role on a 3 month probationary period, and also whilst internal grievance proceedings were handled. It was always the intention that thereafter, if she remained in the cover supervisor role, her pay would reduce to the usual cover supervisor salary. She was told by E-Act Academy that the pay protection during this period was a temporary measure.

What happened next

Thereafter, advice from Occupational Health confirmed that whilst she was unfit to return to her teaching role, she was fit to carry out the cover supervisor role. Mrs Aleem accepted an offer to continue in that role, and to be paid at the rate applicable to that role. However, she then went on to claim that it was a failure to make a reasonable adjustment to continue to pay her at her teachers’ pay rate, whilst she continued in the role of cover supervisor. Her claim failed.

EAT decision

She appealed to the Employment Appeal Tribunal which stated that whilst it was a reasonable adjustment to pay Mrs Aleem at the higher teacher’s rate of pay whilst her return to work was being supported and whilst internal processes were being handled, it was not reasonable to expect this pay protection to be permanent once this had concluded. This was particularly so in light of the financial position of the Academy at the time which was presented as evidence.

What this means for schools

This decision is consistent with the long established principle established by the Court of Appeal in O’Hanlon v HM Revenue & Customs that it will rarely, if ever, be a reasonable adjustment to continue to pay for a role that an employee is no longer doing.

To discuss this article, or for advice on reasonable adjustments, we’re here for you – get in touch.