Offering alternative lower paid employment to disabled employees

Q. Can we offer a disabled employee lower paid work if deemed unfit to fulfil their role by occupational health?

Seamus: This is a matter that any employer is going to have to tread very carefully. You would anticipate certainly that occupational health has been taken upon. There is a report that’s been received. Again, it’s looking about the balance here and being fair to the employee. I think sometimes there can be certainly a view by employers that if they have a disabled client, that they have to bend over backwards in terms of accommodation.

The legislation talks about the reasonableness of it. It also talks about those amendments those that can be made. Again, those are reasonable amendments that have to be made. It’s really about, I think, sitting down with the employee and explaining to the employee, consulting with the employee, having those conversations with the employee about the practicalities of what they can and can’t do in the workplace.

If it is a situation where the job they were doing, they were unable to do that and they’re unable to fulfil that element of their work and their duties and their contract, the employer would be obliged to look at alternatives and see what alternatives are available within the business. It may be that there’s an element of the job they can still do but there’s another element they can’t and maybe looking to see what else is available, possible redeployment and looking at all of those types of things before there’s any decision made as to whether or not the employer can retain the employment or whether or not they’re going to cut the salary.

In terms of salary, if all of the possibilities are looked at, there is an available other position, there is a suitable position that the employee is agreeable to do it. The employer does need to discuss with the employee the reality that there’s a benchmark and there’s a salary in relation to that role. Otherwise, you could potentially be getting in the realms of equal pay claims and things like that.

Scott: Okay. That wouldn’t last forever. There was a case in 2004 at the (then) House of Lords, Archibald v Fife.

Seamus: Fife, yes.

Scott: That involved a street cleaner, if I remember rightly. It was a woman, Mrs. Archibald. She had applied for about 100 jobs internally and they’d given her an admin job and her argument was that they should have offered her without the need for competition to get a higher paid job. That was ruled to be the case applied by our Supreme Court then.

Seamus: Yes.

Scott: It’s not necessarily the case that you’re looking at a lower paid job. You could be looking at a higher paid job if the person is competent and capable. That would mean that others who fancy that job just wouldn’t get a look in.

Seamus: Yeah. It seems strange in that sense of a decision, but it is realms of HR equality laws now, not what I fall into, but it is about looking at all of the available positions and it’s about suitability for the position as well. I think that’s an important thing. You shouldn’t just be limited in relation to thinking it has to be a job that’s lower down the pay scale. It could be something that is up the pay scale as well.

But really, it’s about engaging with the employee and it’s about consultation with the employee and seeking to get agreement. The likelihood is probably that if you don’t consult or you don’t engage and ultimately if you don’t get agreement, you could potentially be looking at a claim. It’s really then about making sure the employer has all of the records and it really is important to make sure that you do have your evidence trail in terms of your consultation meetings that you’ve had, your minutes in respect to that.

You have your occupational health reports, how those were discussed. Sometimes if you get occupational health reports, they will suggest that you seek further medical evidence from specialists and just to make sure those are followed through on as well.