Twenty years have passed since the House of Lords (as it was then) found that the duty to make reasonable adjustments may include transferring a disabled employee into a new role. However, the question of whether a trial period could be regarded as a reasonable adjustment in its own right, or just a procedure for determining the viability of the employee moving to an adjusted role, has not been clear. It was this issue that the EAT in Rentokil Initial UK Ltd v Miller has considered.
Background
The claimant held a physically demanding role with Rentokil. About 40% of his time was spent working at height. In March 2017, approximately a year after he started in this role, he was diagnosed with multiple sclerosis. There ensued a fairly lengthy period of modifications being made to both the claimant's role and his terms and conditions of employment. Towards the end of 2018, the Rentokil concluded that the claimant could not continue in his substantive role so the possibility of transfer to a new role was investigated. In February 2019, the claimant applied for a role as a service administrator but performed badly in the required maths and spelling assessments. He was interviewed but it was concluded that his skills were not relevant to the service administrator role, and he also lacked experience in using Excel. Shortly afterwards Rentokil concluded that there were no further adjustments that could be made to the claimant's substantive role, and there were no suitable alternative roles available for him. He was dismissed and an appeal was unsuccessful.
An employment tribunal upheld a complaint for failure to make a reasonable adjustment on the basis it would have been reasonable to transfer the claimant into the service administrator role for a trial period. The tribunal found that had the claimant been offered a trial period there was a 50% chance it would have been successful. Claims for unfair dismissal and discrimination arising from disability were also successful. Rentokil appealed, challenging the conclusion that it would have been a reasonable adjustment to offer the claimant a trial period in the role. It argued that a trial period should be regarded as a process of investigation, not something capable of amounting to a reasonable adjustment in its own right. It also argued that if an employer reasonably concludes a candidate is not suitable or qualified for a role it cannot be reasonable to appoint them to it.
The Employment Appeal Tribunal ("EAT") finding
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 new role, nor is it a rule of law that for a trial to be a reasonable adjustment it must be certain or likely that the trial will be successful. Any step that might avoid the substantial disadvantage (in this case dismissal) may be a relevant step for an employer to take, and the question for a tribunal is simply whether it was reasonable for such a step to have been taken.
The EAT also held that if an employee identifies a role that a tribunal finds could potentially have been suitable, then the burden passes to the employer to show it was not reasonable to put the employee in that role, at least on a trial basis. A tribunal should carefully consider an employer's assessment of these matters and the evidence the employer may adduce to support its case, but the employer's assessment is not decisive. The question of whether a particular adjustment would have been reasonable in the circumstances is an objective one for the tribunal to decide.
What does this mean for employers?
This case provides clear guidance that the placing of an employee on a trial period can be a reasonable adjustment in its own right.
However, the EAT pointed out that the fact that an employee may be facing dismissal does not mean an employer should always offer a trial period in a different role. What it is or is not reasonable will turn on the facts of each case taking into account factors such as the suitability of the role and the prospects of the employee succeeding in the role and passing the trial.
