REASONABLE ADJUSTMENTS
The tribulations of not offering a trial...
Where someone is unable to continue in their present job, due to a health condition, will it be a reasonable adjustment to move them into a different, vacant role, on a trial basis?
In some situations, yes, as the Employment Appeal Tribunal confirmed recently in the case of Rentokil Initial UK Ltd v Miller.
Background
On 11 April 2016, Mr Miller started work with Rentokil as a pest control technician.
Mr Miller was required to attend customer premises and carry out inspections, maintenance and treatment for pests.
His role often required him to work at heights on ladders. He was also required to carry out some administrative duties, such as reporting in writing to clients, completing accurate reports of calls, maintaining accurate daily work lists and carrying out stock takes.
In March 2017, Mr Miller was diagnosed with multiple sclerosis (MS).
Due to his MS, despite adjustments, over time it became apparent that he could not continue in his pest control role. He therefore applied, in February 2019, for an internal vacancy as a service administrator.
During the recruitment process for this admin role, Mr Miller performed poorly in written maths and verbal tests, and it was felt that his skills and experience were not relevant for the role (e.g. he was not familiar with Microsoft Excel).
Rentokil did not consider offering Mr Miller the role on a trial basis or providing him with any retraining, and he was subsequently dismissed on capability grounds.
Mr Miller brought claims in the employment tribunal for unfair dismissal and disability discrimination, which included a claim that Rentokil’s failure to offer him a trial period in the admin role amounted to a failure to make reasonable adjustments.
The Employment Tribunal upheld his claims, and he was awarded a total of £14,445.43, which included £8000 in respect of injury to feelings.
Rentokil appealed to the EAT, but the EAT dismissed the appeal, and upheld the Tribunal’s decision.
Reasonable adjustments claim
Under the Equality Act 2010, employers are under a positive duty to make reasonable adjustments or modifications to remove any substantial disadvantage faced by a disabled employee in the workplace, when compared with a non-disabled employee.
In this case, The Tribunal said it would have been reasonable for Rentokil to offer Mr Miller the admin role on a trial basis, as this adjustment would have removed the disadvantage to him of facing dismissal, because of being unable to perform his technician role.
In reaching this conclusion, the Tribunal considered the following facts to be relevant:
The service administrator role was a more junior role than Mr Miller’s technician role;
Mr Miller has some relevant experience - the service administrator role was a support role to the technician role, and knowledge of the technician role would likely be helpful to someone working in a supporting role;
The technician role included a number of administrative functions such as report writing, record keeping and stock check functions which would also be relevant experience for the support role;
Mr Miller’s lack of experience with the Excel spreadsheet programme could have been addressed by providing him with training on Excel;
Whilst Mr Miller’s poor performance on the written tests may have given Rentokil some concerns about whether he would be able to perform the role, these concerns could have been met by offering him a trial period.
When deciding the case on appeal, the EAT said:
‘…a tribunal is not bound in every case where the employee was facing dismissal, to conclude that the employer ought to have given them a trial period in a particular other role. Whether or not it ought reasonably to have done so is a matter for the appreciation of the tribunal, taking account of all the circumstances, including the suitability of the role, and the prospects of the employee succeeding at the role and passing the trial.’
They went on to find:
‘…in the present case, putting the claimant into the service administrator role on a trial basis would have not merely involved postponing the date of his inevitable dismissal by four weeks. It would not be just a short stay of execution, but held out the prospect of the axe being lifted entirely. The tribunal plainly considered that it had a real prospect of avoiding the disadvantage altogether by the claimant being confirmed in the new role at the end of the trial period – a chance which the tribunal when considering remedy put at 50%.’
In other words, there is no rule of law that it must be certain, or likely to some particular degree, that the trial will be successful, to be a reasonable adjustment.
This EAT decision is binding on future tribunals, and so employers should consider allowing a disabled employee to trial any vacant position which is potentially suitable, if that could avoid dismissal.
If the trial period proves unsuccessful, the employer will be in a better position to persuade the Tribunal that there were no further reasonable adjustments that it could have made, to prevent the employee’s dismissal.