Can a trial period be a reasonable adjustment? – Yes says the Employment Appeals Tribunal
Where an Employee is experiencing a potential disadvantage due to having one or more protected characteristics, their Employers has a duty to make reasonable adjustments. Mr Miller was an employee of Rentokil and had been employed by them as a field-based pest controller. Due to a diagnosis of multiple sclerosis, he was unable to continue in that role and so Rentokil directed him towards other roles in the business in the hope of redeploying him. Mr Miller applied for a role as an administrator but was rejected following an interview process. Mr Miller brought a claim in the Employment Tribunal (“the Tribunal”) on the basis that Rentokil’s failure to redeploy him as an administrator was a failure to make reasonable adjustments. The Tribunal agreed with Mr Miller and Rentokil appealed to the Employment Appeal Tribunal (“EAT”).
The EAT dismissed the appeal. They found that Mr Miller had been unable to continue his previous role due to his disability and that this had placed a substantial disadvantage on him. Under the circumstances, the EAT considered that Rentokil had a duty to make reasonable adjustments for Mr Miller to avoid this disadvantage if possible. They went on to say that Mr Miller had been able to show that the administrator role was potentially suitable for him, and that once he had done that it was for Rentokil to satisfy the Tribunal that was not the case. The EAT considered that failure to consider placing Mr Miller in the role, even on a trial basis, had amounted to disability discrimination.
This case is a reminder for Employers to carefully consider redeployment options for employees who are no longer able to perform their substantive role because of a disability. This Judgement shows that Employers must satisfy the Tribunal that it was not reasonable to place an employee in a given role and that this duty goes beyond simply whether they are suitable for the type of contract they would extend to an able-bodied employee, but includes considering alternative arrangements such as a trial period