The Employment Appeal Tribunal (EAT) has recently upheld the decision that an employer did not make reasonable adjustments when it dismissed a disabled employee rather than placing him in an alternative role on a trial basis.

The case of Rentokil Initial UK Ltd v Miller [2024] EAT 37 clarifies that it can be a reasonable adjustment for an employer to offer a disabled employee a trial period in a new role.

Background

The Equality Act 2010 aims to protect individuals from discrimination. A key provision is the duty of employers to make reasonable adjustments for disabled employees or job applicants. An employer is obliged to take such steps if an employee is placed at a substantial disadvantage because of their disability compared to a non-disabled person. The duty to make reasonable adjustments is intended to shield the employee from substantial disadvantage and promote inclusivity.

Facts

Mr Miller was employed by Rentokil Initial UK Ltd (Rentokil) as a pest control technician. His job was physically demanding, and around 40% of it involved working at heights using ladders. Mr Miller was diagnosed with multiple sclerosis and as his condition deteriorated, he was unable to continue in his specific role. Mr Miller was sent home, on full pay, while Rentokil explored different roles for him internally.

Mr Miller applied for a service administrator role within the company however following an interview and a maths and spelling assessment, Rentokil decided not to offer Mr Miller the role. Mr Miller scored 16/30 in his spelling test and 7/20 in his maths test. At a capability meeting, Rentokil concluded that Mr Miller could no longer work at heights, no adjustments could be made that would enable him to remain in his role and there were no alternative roles suitable for him within the company. Mr Miller was subsequently dismissed.

Mr Miller pursued claims in the Employment Tribunal for failure to comply with the duty of reasonable adjustments, discrimination arising from a disability and unfair dismissal. The Tribunal found that transferring Mr Miller to the service administrator role for a four-week trial period would have been a reasonable adjustment. The Tribunal accepted Mr Miller’s low score on the spelling and math tests could have been a concern for Rentokil; however, it noted that the concerns could have been met by offering him the trial period. The Tribunal noted that during the four-weeks, Mr Miller would have been provided training, and therefore there was a reasonable chance that he would have been able to perform better in the role than his interview suggested.

On appeal the EAT agreed with the Tribunal. The EAT found that Mr Miller had been placed at a substantial disadvantage and placing him in the service administrator role for at least a trial period would have been a reasonable adjustment.  Considering all the circumstances, the Tribunal estimated a 50% chance Mr Miller would have passed the trial period and the role would have been made permanent. The EAT therefore upheld the Tribunal’s finding that Rentokil did not make reasonable adjustments and upheld findings of discrimination arising from disability and unfair dismissal.

The EAT held that there is no rule of law that it cannot be a reasonable adjustment to give a disabled employee a trial period in a separate role where they cannot carry out their usual role. Nor is there a rule of law that it must be certain that the employee will be successful during that trial period.

Learning Points

Employers need to ensure that reasonable adjustments are made as failure to do so can contribute to discrimination and exclusion in the workplace. If an employer fails to make reasonable adjustments when they are under a duty to do so, the Equality Act 2010 treats that as discrimination. In some cases, an employer can face a claim for unlawful discrimination in the Employment Tribunal.

This case highlights how a failure to make reasonable adjustments can lead to costly consequences for an employer and damage to their reputation. Employers must consider their processes to ensure that trial periods are offered in appropriate cases.

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