In this case, the EAT decided that an employer had failed to make a reasonable adjustment when it did not offer a disabled employee a trial period in a different role.
The Facts
From April 2016, the claimant, Mr Miller was employed by Rentokil Initial UK Limited as a pest control technician. In March 2017, he was diagnosed with multiple sclerosis, which is a deemed disability under the Equality Act 2010. Over the following months various adjustments and modifications to his working arrangements and terms and conditions were made, with a view to mitigating the ongoing impact of the claimant’s disability on his ability to continue in his current role. The claimant's role involved him working at heights with ladders, and was generally physically demanding. At the beginning of 2019 the respondent concluded that there was no viable way in which the claimant could continue in his current role, and the possibilities for him moving into a different role began to be explored. In February 2019 the claimant applied for a service administrator role. Following a process involving an interview and written tests, the decision was taken not to offer the claimant that role. There followed a capability meeting on 13 March 2019 at which it was concluded that there were no adjustments that could be made that would enable the claimant to remain in his existing role. As he had been unsuccessful in his application for the service administrator role, and there was no other suitable alternative role for him, the claimant was dismissed at the end of that meeting. His internal appeal was unsuccessful. The claimant brought a claim in the employment tribunal for failure to make reasonable adjustments, discrimination arising from disability in respect of the dismissal and unfair dismissal.
The claimant was successful at tribunal and the EAT upheld the tribunal's decision. Key points from the judgments were:
- The claimant was entitled to be treated more favourably than other candidates due to his disability.
- The duty on an employer is to take such steps as it is reasonable to have to take "to avoid" the substantial disadvantage at which a provision, criterion or practice puts the disabled employee. There is no requirement that the proposed step must be guaranteed to work.
- Here the substantial disadvantage was that the claimant was at almost certain risk of dismissal and therefore the employer needed to consider any adjustments which would remove the risk of dismissal, or have had sufficient prospects of averting dismissal.
- Offering a four week trial period (coupled with additional training) would have been a suitable adjustment. The EAT emphasised that the trial period could have potentially removed the threat of dismissal entirely, rather than merely delaying it. It was suggested that there was a 50% chance that this could have resulted in permanent employment in the new role. The onus was on the respondent to demonstrate that it was unreasonable to place the claimant in the new role, even on a trial basis, and they had failed to do so.
- The judgment also noted that the employer's decision had been purely based on the recruiting manager's assessment of the interview and tests and not a manager who had the benefit of knowledge of how the claimant performed in his current role. The employer's concerns over the claimant's performance in the interview and written assessments could have been met by offering him a trial period to see how he could do the role in practice.
- The EAT was clear that it was not saying that the tribunal was bound in every case to conclude the employer had failed to make a reasonable adjustment if it did not give a trial period. It should look at suitability and prospects of passing the trial when considering the reasonableness of offering a trial period.
What this means for employers
This is an important decision for employers when considering their duty to make reasonable adjustments for a disabled employee. This decision clarifies that, as well as redeployment, it can be a reasonable adjustment for an employer to offer a disabled employee a trial period in a new role. Particularly where dismissal is the alternative, employers should thoroughly consider whether it would be reasonable to offer a trial period and ensure that employees are offered one in appropriate cases.
In the event that an employer decides it is not reasonable to offer a trial period, it should gather and keep persuasive evidence and records to justify its reasoning.
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