The Employment Appeal Tribunal (EAT) has considered in Rentokil Initial UK Ltd v Miller whether an employer failed to make a reasonable adjustment when it did not offer a disabled employee a trial period in a new role.
Mr Miller was employed as a pest control technician in April 2016. This was a physically demanding field role which involved about 40% of his time working on ladders at height. In March 2017 he was diagnosed with multiple sclerosis. Various modifications were made to his working arrangements and terms and conditions of employment in order to mitigate the impacts of his disability on his ability to continue in his role. By the end of 2018, Rentokil decided that there was no viable way for Mr Miller to continue in the same role due to the risks posed by his disability. He was sent home on full pay while Rentokil began to explore other possibilities for him.
In February 2019 Mr Miller applied for a service administrator role. All candidates had to take maths and spelling assessments. Mr Miller didn't score very highly and, after an interview, the recruiting manager decided not to offer the role to him on the basis that he had irrelevant skills and experience and not much experience of using Excel. There was no consideration of a trial period or retraining. At a capability meeting in March 2019, Rentokil concluded that no adjustments could be made that would enable Mr Miller to remain in his field role and, as there were no other suitable alternative roles, he was dismissed. He brought claims for failure to make reasonable adjustments, discrimination arising from disability and unfair dismissal.
The tribunal upheld his claims. It held, in relation to his application for the service administrator role, that he was entitled to be treated more favourably than other candidates and it would have been a reasonable adjustment for Rentokil to transfer his into the service administrator role for a four-week trial period.
The EAT dismissed Rentokil's appeal. It found that there is no rule of law that it cannot be a reasonable adjustment to offer a trial period in a new role to a disabled employee, and nor is there anything in law to say that it must be certain, or meet some threshold of likelihood, that the employee would be successful in that trial period. It also dismissed the argument that it could not be a reasonable adjustment to require an employer to appoint an employee to a particular role where the employer genuinely and reasonably concludes that the employee is not qualified or suitable for it. Here the tribunal had found that there was a reasonable chance that he could have been able to perform better in the role than his interview and tests suggested as, amongst other things, the role was more junior and he could be given training to help him.
Take note: It follows from the decision in Miller that it can be a reasonable adjustment to offer a disabled employee a trial period in a new role, though it will be dependent on the facts. In this case the tribunal had found that there was a reasonable chance that Mr Miller would have been able to perform better in the role than his interview and tests suggested as the role was a more junior one and was a support role to Mr Miller's substantive role. His substantive role had included some administrative tasks which would be relevant experience to the new role, and the recruiting manager making the decision did not have the benefit of knowing how Mr Miller had performed in his substantive role.
