What employers should note from the new EAT ruling

The obligation to make reasonable adjustments for disabled employees is well known, but the parameters are often very difficult for employers to confidently identify. Trial periods in new roles are often useful in this regard, and can be evidence that an employer has looked to address a disadvantage. However in a new case, Rentokil v Miller, the EAT has considered whether offering a Claimant a trial period in a new role can and should be considered a reasonable adjustment in and of itself.

The Claimant (Mr Miller), a field-based pest controller, was diagnosed with Multiple Sclerosis and gradually became unable to undertake his physically demanding role. He applied for another role with the same organisation, a service administrator role. Following the standard interview and written test, the Claimant was not successful. He went on to be dismissed on the grounds of capability on the basis that there were no adjustments that could be made to his pest controller role to enable him to continue in it and no suitable alternative roles could be identified.

The Claimant brought claims of (1) failure to make reasonable adjustments, (2) discrimination arising from disability, and (3) unfair dismissal. The Employment Tribunal found that the employer had failed to make reasonable adjustments, specifically they had failed to offer the Claimant a trial period in the service administrator role.

This finding had a very significant impact on the outcome of the case: the Tribunal went on to uphold the complaint of discrimination arising from disability (because the dismissal was not justifiable if there had been a failure to make reasonable adjustments) and also found the dismissal itself to be unfair (because of the outcome of the reasonable adjustment claim).

The employer’s failure to make a reasonable adjustment was central to the success of the Claimant’s case in all regards, and a financial remedy was awarded.

The employer appealed to the Employment Appeal Tribunal, which considered the case in detail before rejecting the appeal and agreeing with the Employment Tribunal.

The case contains commentary which will be very useful to employers when considering their obligations to make reasonable adjustments in relation to disabled employees.

1. There is no reason why being given a trial period in a new role cannot, of itself, be a reasonable adjustment, nor is there a requirement that it must be certain that the employee would be successful in a trial

This point has been discussed by the Employment Appeal Tribunal before. In Environment Agency v Rowan, the EAT considered trial periods to be akin to a consultation, and not a reasonable adjustment in its own right. Those comments were made obiter, meaning that they are not binding.

This case contradicts this view, and the comments are not obiter. The EAT here found that because putting an employee into a new role on a trial period involves a change to their substantive terms, conditions or arrangements, it is not akin to a consultation. There is therefore no reason why a trial period in itself cannot be a reasonable adjustment.

The EAT also considered the limits of this potential adjustment. It held that a tribunal will not be bound in every case where an employee is facing dismissal to find that the employer ought to have given them a trial period in another role. Whether a trial period is appropriate as a reasonable adjustment will depend on the circumstances, including the suitability of the role and the prospects of the employee succeeding at the role and passing the trial. In Rentokil, the Tribunal had found that the trial period would have a real prospect (50%) of avoiding the dismissal of the employee, and as such the trial period would have been an appropriate reasonable adjustment.

2. The question of whether the Claimant should be put into a role is an objective question for the Tribunal to make, and the Tribunal is not bound to follow the reasoning of either the employee or employer when coming to a decision

The Claimant had not passed the interview and standard written test required for the role. The employer argued in the EAT that by finding that a trial period was a reasonable adjustment, the Tribunal was asking the employer to disapply its essential criteria for the role by disregarding these results.

The EAT considered this point in detail and found that the question of whether a particular employee should have been put into a particular role is an objective question and the Tribunal is not required to take the side of either the employee or employer on this point. In answering the question, the Tribunal will usually consider whether the employee met the essential requirements of the role, but the matter for the Tribunal is whether this employer ought reasonably to have put this employee into this role (on trial or not). This is the question that should therefore be asked by employers when considering the matter.

It is also not enough generally for an employer to show that the employee did not meet the standards that would be expected in a normal competitive exercise. The question is whether it would be reasonable for the employee to be put in the role, at least on a trial basis, for the purposes of a reasonable adjustment.

In the Rentokil case, the Tribunal had found that although the employee’s poor performance on the written tests may have reasonably raised some concerns for the employer, those concerns could have been met by offering the employee a trial period.

3. If the employee shows that there is a PCP (provision, criterion or practice), that they have been placed at substantial disadvantage, that there was knowledge, and identifies a role that the Tribunal finds could potentially have been considered appropriate and suitable, it will be down to the employer to show that it was not reasonable to have (a) put the employee into that role, or (b) have done so at least on a trial basis

Once the burden passes, whilst it is open to the employee to provide further evidence to support their claim, they are not required to do so. The responsibility is then on the employer to show why it was not reasonable for the employer to make the identified adjustment.

This point highlights the need for thorough, considered reasoning, and the recording of that reasoning, when deliberating potential reasonable adjustments and whether they are suitable within the workplace and according to the specific needs of a business.

What the case means for employers

This case has highlighted the significant complexities faced by employers considering reasonable adjustments for employees. What can appear to be a relatively simple decision should be considered carefully. Employers should consider in particular:

1. That disabled employees are entitled to be treated more favourably than other candidates when considering redeployment.
2. Whether a trial period in a role should be offered as a separate reasonable adjustment.
3. What the appropriate selection criteria for a role should be, considering the very specific purpose of the trial period in these cases.
4. Whether there is an objective justification for not making the adjustment of offering a trial period, even if there appears to be an objective justification for not making a permanent redeployment.

If you have any questions regarding the issues raised in this article then please do get in touch with the team.