The question was recently examined by the Employment Appeal Tribunal (EAT) in the case of Rentokil Initial UK Ltd v Miller [2024] EAT 37.
An employer is under a duty to take such steps as are reasonable to avoid a disadvantage where a disabled person is placed at a substantial disadvantage by an employer's provision, criterion or practice (PCP).
When an employment tribunal considers a reasonable adjustment claim it must identify:
- The PCP applied by or on behalf of an employer.
- The identity of non-disabled comparators, where appropriate.
- The nature and extent of the substantial disadvantage suffered by the claimant, in comparison to the non-disabled comparators.
In assessing what adjustments are reasonable, the focus will be on the actual practical result of the steps which the employer can take, not on the thought processes of the employer when considering what steps to take.
In the Rentokil case, the Claimant was a pest control technician. He was diagnosed with multiple sclerosis (which is automatically deemed a disability), and various adjustments were made to his working arrangements to try to assist him and enable him to continue in the role. As his condition worsened, the employer considered it was not possible to continue to employ him in the role safely and so it began to look for alternative roles he may be able to undertake.
The Claimant applied for a service administrator role, but he didn't perform well in the written assessment tests. He was not offered the role based upon this and an interview, where the view was taken that he did not possess the relevant skills and experience for the role. In doing so, the employer did not consider a trial period or whether some training may be appropriate.
The employer subsequently dismissed the Claimant on the basis that there were no adjustments that would enable him to continue in his original role and that there were no other suitable alternative roles available for him.
The Tribunal held that the employer had failed to make a reasonable adjustment when it did not offer the Claimant a trial period in the administrator role, and, when the employer appealed, the EAT agreed. In reaching its decision, the Tribunal held that the Claimant was entitled to be treated more favourably than other candidates and that it would have been a reasonable adjustment to allow a four week trial period in the administrator role and to provide some additional training. It considered, based upon the Claimants historical performance in his role, which included some administrative tasks, that there was a 50% chance that the trial period would have succeeded and therefore that he could have remained permanently in the role. Any concerns the employer had about the Claimant's assessment performance could have been addressed by offering him a trial period.
In dismissing the employer's appeal, the EAT added that there is no requirement that a proposed adjustment must be guaranteed to work. The substantial disadvantage in this case was that the Claimant was at high risk of being dismissed and therefore any adjustments that would remove the risk of dismissal or had sufficient prospects of avoiding dismissal should have been considered. The onus was on the employer to show that it was unreasonable to offer the Claimant the new role, even on a trial basis, and it was not able to do this.
Comment
This decision is important to take note of when, as an employer, you may be contemplating dismissing an employee who is unable to continue in their current role due to a disability. There is already an onus to consider redeployment, and sometimes even creation of a new role can be considered reasonable. This case reinforces that adjustments are infinite in scope, and can involve treating disabled employees more favourably than others.
It can be a reasonable adjustment for an employer to offer a disabled employee a trial period in a new role and especially in circumstances where the alternative is likely to be dismissal. The Tribunal is not bound in every case to conclude that an employer has failed to make a reasonable adjustment if it does not offer a trial period. Each case will turn on its facts and the evidence, which a Tribunal will analyse. Ultimately, however, the Tribunal itself can and will form its own objective opinion on whether it would be reasonable to offer a new role or trial period to an employee.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.