Scrase Law Employment Solicitors

Is it a reasonable adjustment to offer an employee a trial in a new role?

Employers have a duty under the Equality Act in some circumstances to make reasonable adjustments for employees who have a disability.  The duty arises where there is a provision, criterion or practice (PCP) which puts a disabled person at a substantial disadvantage in comparison with persons who are not disabled.  The duty is to take such steps as it is reasonable to have to take to avoid the disadvantage.  

The background

Mr M was employed as a field-based pest control technician.  He was diagnosed with multiple sclerosis.  Various adjustments were made to his working arrangements.  The employer subsequently concluded that Mr M could not continue in his role, partly because he was restricted from working at heights, which made up about 40% of his work.  It considered the possibility of him moving into a different role.  Mr M applied for a service administrator role, but following an interview and written tests, he was unsuccessful.  Following a capability meeting, the employer decided that there were no adjustments that could be made to enable Mr M to remain in his existing role.  As he was unsuccessful in his application for the service administrator role and there were no other suitable alternative roles, he was dismissed.  His appeal against dismissal was unsuccessful.

The claim

Mr M issued a claim in the Employment Tribunal, including for a failure to make reasonable adjustments.   The Tribunal upheld his claim, concluding that it would have been a reasonable adjustment to transfer Mr M into the service administrator role for a trial period.  It noted that there was a reasonable chance that Mr M would have been able to perform better in the role than his interview and tests suggested, and that a reasonable trial period would have been four weeks.  The role was a more junior support role to Mr M’s existing role, and given that Mr M was already required to perform administrative tasks, the service administrator role would on the face of it have been suitable for him.  It accepted that the employer may have had  concerns about whether Mr M would be able to perform the role, but these concerns could have been met by offering a trial period.

Would a trial period have been a reasonable adjustment?

The employer appealed to the Employment Appeal Tribunal (EAT).   The EAT noted that where an employee is at almost certain risk of dismissal, it is open to the Tribunal to consider whether a proposed trial period in another role would remove the risk of dismissal so that it is a reasonable step for the employer to be expected to take.  In this case, putting Mr M into the role on a trial basis would not merely have postponed the date of inevitable dismissal by four weeks.  It ‘would not be just a short stay of execution, but held out the prospect of the axe being lifted entirely’.  The Tribunal had found that there was a real prospect of Mr M being confirmed in the new role at the end of the trial period.  The EAT agreed that offering him a trial period was a reasonable step for the employer to have to take.

Comment

Transferring an employee to another role when they become unable to perform their role is an example of a reasonable adjustment.  As the EAT noted, this judgment does not mean that in every case where an employee is facing dismissal, a Tribunal is bound to find that the employer ought to have given them a trial period in another role.  This will be a matter for the Tribunal to decide, taking into account all of the circumstances.  These will include the suitability of the role, and the prospects of the employee succeeding at the role and passing the trial.  “Any change which would or might avoid the substantial disadvantage caused by the PCP is in principle capable of amounting to a relevant step.  The only question for the tribunal is whether it was reasonable for it to be taken.”

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Rentokil Initial UK Ltd v Mr M Miller

28 March 2024

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