A trial period in a new role can be a reasonable adjustment


9th April 2024

The Employment Appeal Tribunal ruled that a trial period in a new role can be a reasonable adjustment for disabled employees.

Under the Equality Act 2010, disability is one of nine “protected characteristics” and the Act protects job applicants and current and former employees from disability discrimination, harassment and victimisation.

Employers are under a duty to take reasonable steps to avoid circumstances where a disabled person is placed at a substantial disadvantage by one of the following:

  • An employer’s provision, criterion or practice (PCP).
  • A physical feature of the employer’s premises.
  • An employer’s failure to provide an auxiliary aid.

A recent decision by the Employment Appeal Tribunal in Rentokil Initial UK Ltd v Miller provides further clarification on what can entail a reasonable adjustment where an employee is disadvantaged by a PCP.

Background

The claimant, Mr Miller, was employed from April 2016 as a pest control technician, a role which was physically demanding and involved around 40% of his time spent working at height on ladders. Following a diagnosis of multiple sclerosis at the beginning of 2017, various modifications had to be made to his working arrangements. However, by the end of 2018, Rentokil concluded that there was no viable way for Mr Miller to remain in his role due to the risks associated with his disability. Subsequently, Rentokil sent Mr Miller home on full pay and began to assess the option to move him to a different role within the company.

In February 2019, two service administrator roles opened which Mr Miller applied for, although it is unclear if he was prioritised to external candidates. Following the interview process which included written tests, Rentokil concluded that Mr Miller did not have the relevant skills and experience for the role and was not offered the job. Rentokil did not consider a trial period or any retraining.

At a capability meeting in March 2019, Rentokil determined that there were no further adjustments they could make that would enable Mr Miller to remain in his current role and as there were no other suitable alternative roles, he was dismissed. His internal appeal was unsuccessful.

The Employment Tribunal

Mr Miller subsequently brought Employment Tribunal claims for failure to make reasonable adjustments, discrimination arising from disability and unfair dismissal.

The Employment Tribunal upheld one of his reasonable adjustment claims, holding that the PCP of requiring field staff to work in their substantive roles put Mr Miller at a particular disadvantage in comparison to non-disabled people. This was because he was permanently restricted from working at height (40% of his role) because of the risk of falling and his multiple sclerosis meant he carried out his tasks more slowly which put him at risk of dismissal.  Mr Miller was therefore entitled to be treated more favourably than the other candidates. It would have been a reasonable adjustment for Rentokil to transfer Mr Miller into a service administrator role for a four-week trial period. There was a reasonable chance that he would have been able to perform better in the role than his interview and tests suggested. The Employment Tribunal held that a trial period should have been offered to overcome the concerns regarding Mr Miller’s performance in the interview process.

Failure to offer a trial period meant that his dismissal was almost inevitable. The Employment Tribunal made a finding that there was a 50% chance that the trial period would have succeeded, and the role would have been made permanent.

The Employment Tribunal held that Mr Miller’s dismissal was something arising from his disability. Accordingly, the discrimination arising from disability and unfair dismissal claims also succeeded.

Rentokil subsequently appealed to the Employment Appeal Tribunal on a number of grounds relating to the conclusion that it would have been a reasonable adjustment to offer Mr Miller a trial period in the service administrator role.

The Employment Appeal Tribunal (EAT)

The EAT agreed with the Employment Tribunal’s conclusion that there is no rule of law precluding a trial period from being considered a reasonable adjustment, rather than a mere process or tool of investigation, as contended by Rentokil. This stance would be taken even if it was not certain that the employee would be successful in that trial period.

It is an objective question for the Employment Tribunal to decide whether it would be reasonable for an employer to give an employee a particular role, whether on a trial basis or not. In the present case, the Employment Tribunal had given valid reasons as to why it disagreed with Rentokil’s view that it was not reasonable to allow Mr Miller a trial period in the service administrator role.

Furthermore, where the substantial disadvantage is that the claimant is at almost certain risk of dismissal, it is then open to the Employment Tribunal to consider whether the proposed trial period in another role would remove that risk, or has sufficient prospects of averting dismissal, that it is reasonable for the employer to be expected to take that step.

Although the Employment Tribunal is not bound in every case where the employee was facing dismissal to conclude that the employer ought to give the employee a trial period in a different role, it is for the Employment Tribunal to decide whether or not it ought reasonably to have done so, taking into account all of the circumstances, including the suitability of the role and the prospects of the employee succeeding in it and passing the trial period.

What does Rentokil Initial UK Ltd v Miller mean for employers?

This case demonstrates the obligation on employers to make reasonable adjustments for someone with a disability and illustrates that it may be a reasonable adjustment to offer a disabled employee a trial period in a new role which better suits their needs. A trial period should therefore not only be viewed as a process or tool of investigation for the employer but as something capable in law of itself amounting to a reasonable adjustment. Employers should therefore consider their procedures to ensure that trial periods are offered where appropriate, particularly where dismissal is the very real alternative for a disabled employee.

Where a trial period is not offered, employers should investigate, assess and decide what steps to take with the duty of reasonable adjustment in mind. The employer should then be in a better position to produce evidence which would persuade an Employment Tribunal that it would not have been reasonable to offer a trial period in an alternative role to protect themselves from disability discrimination claims.

It is worth noting that paragraph 6.33 of the Equality Act 2010 Employment Statutory Code of Practice provides a non-exhaustive list of possible adjustments that might be taken by employers. Paragraph 6.28 of the Code sets out some of the factors which might be taken into account when deciding what is a reasonable adjustment/step for an employer to take. For example, whether taking any particular steps would be effective in preventing the substantial disadvantage, the practicality of the step and the extent of the employer’s financial or other resources.

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