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Duty to make reasonable adjustments can include offering trial period in new role

on Thursday, 28 March 2024.

The Employment Appeal Tribunal (EAT) has ruled that an employer failed in its duty to make reasonable adjustments, when it did not offer a disabled employee a trial period in an alternative role.

Duty to make reasonable adjustments

Under the Equality Act 2010, employers have a duty to make reasonable adjustments when they know, or could reasonably be expected to know, that an employee is disabled. An employee is considered 'disabled' under the Equality Act if they have a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

What are the facts of the case?

In Rentokil Initial UK Ltd v Miller [2024], Mr Miller was employed as a pest control technician. In 2017, he was diagnosed with Multiple Sclerosis. He eventually became unable to carry out his physically demanding role. Mr Miller applied for an alternative role as a service administrator. He was unsuccessful in his application due to failing written and numeracy tests. His employer concluded that there were no further reasonable adjustments that could be made and he was dismissed.

Mr Miller brought a claim for failure to make reasonable adjustments, discrimination arising from disability in respect of the dismissal, and unfair dismissal. The employment tribunal upheld his claim. His employer appealed to the EAT.

What did the EAT decide?

The EAT has upheld the Tribunal's decision. It can be a reasonable adjustment to offer a disabled employee a trial period in a new role - this is not to say that they will be successful in that trial.

In this case, the EAT held that had a trial been offered, there would have been a real prospect of avoiding the disadvantage (namely the dismissal). The EAT held that the likelihood of Mr Miller being confirmed in the new role at the end of the trial period was 50%.

The EAT also found that an employer's assessment on the suitability of a trial period in an alternative role is not decisive. This can be an objective question for the tribunal. If an employee identifies a role that the tribunal finds could potentially have been considered appropriate and suitable, then the burden may pass to the employer to show it was not reasonable to have put the employee into the role, or have at least done a trial. In Mr Miller's case, whilst he had not performed well in the written and numeracy tests as part of the application process, his technician role was senior to the administrative role, and involved an element of report writing and other transferable skills. Mr Miller might have performed better during the trial period than the application process suggested.

Learning points for employers

This case demonstrates that the offer of a new role might be a reasonable adjustment for a disabled employee. Employers who are faced with the prospect of terminating the employment of a disabled employee should carefully consider whether they can offer an alternative role (whether on a trial period or otherwise), as an alternative to dismissal.

For more information or advice, please contact Alastair Fatemi in our Employment team on 0117 314 5236, or complete the form below.

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