Can a trial period be a reasonable adjustment?
27 March 2024
In this case, the Employment Appeal Tribunal (EAT) considered whether an employer had failed in its duty to make reasonable adjustments by not offering a disabled employee a trial period in a different role.
Rentokil Initial UK Ltd v Miller [2024] EAT 37
Facts of the case
The claimant, Mr Miller, was employed by Rentokil as a pest control technician, which was a physically demanding role and involved working at height using ladders. In March 2017, he was diagnosed with multiple sclerosis. Rentokil made various modifications to his working arrangements and to his terms and conditions, with the aim of mitigating the effects of his disability. By the end of 2018, however, Rentokil had concluded that it was not viable for Mr Miller to continue in his role as a pest controller. He was suspended on full pay while his employer explored the possibility of moving him to a new role.
In February 2019, Mr Miller applied for the role of service administrator. He undertook a maths and verbal usage assessment, which was a requirement for all candidates applying for roles at Rentokil. Following an interview, the recruiting manager concluded that Mr Miller did not have the relevant skills or experience for the job, so his application was rejected.
In March 2019, Mr Miller was dismissed on grounds of incapability. After an unsuccessful appeal against his dismissal, he brought claims in the employment tribunal for failure to make reasonable adjustments, discrimination arising from disability and unfair dismissal.
Mr Miller’s claims were upheld. The tribunal found that he was entitled to be treated more favourably than the other candidates for the administrator role, and it would have been a reasonable adjustment for Rentokil to have granted him a four-week trial period in the new role. The role was junior to the role he had been carrying out and supported that role – meaning that he would have had relevant knowledge and experience for the role. In addition, he could have been provided with training to assist with the new role.
There had been no evidence to suggest that Rentokil had considered whether Mr Miller’s application should have been treated more favourably than other candidates, and the failure to offer him a trial period meant that his dismissal was almost inevitable.
Rentokil appealed to the EAT.
EAT decision
The EAT dismissed Rentokil’s appeal. It agreed with the tribunal’s conclusion that a trial period can be a reasonable adjustment in itself; it is not conditional on meeting any threshold for being successful. If the employee is at almost certain risk of dismissal, it is open to the tribunal to consider whether the proposed trial period in another role had sufficient prospects of averting that dismissal, meaning that it is reasonable for the employer to take that step. In Mr Miller’s case, it was clear that the tribunal had concluded it would have had a real prospect of successfully avoiding his dismissal.
The EAT also disagreed with Rentokil’s contention that it could not be a reasonable adjustment to require an employer to appoint an employee to a particular role, if the employer genuinely and reasonably concludes that the employee is not qualified or suitable for it. It is an objective question, and the tribunal had given cogent reasons as to why it did not agree in Mr Miller’s case that it was reasonable not to allow him a trial period in the new role. It was not enough for Rentokil to show that Mr Miller had not performed at the expected standards for the role. It needed to show that it was not reasonable to offer him a trial period, as a reasonable adjustment, which it had failed to do.
The Birketts view
This decision does not necessarily mean that all disabled employees must be offered a trial period in an alternative role if they are no longer capable of carrying out their original job. There will be cases where an employer can demonstrate that a trial period in the role will be futile, if the employee does not have any of the necessary skills or experience. However, employers should give due consideration to whether additional training and a trial period are an appropriate adjustment to make in the circumstances. They should not follow the same competitive recruitment process and apply the same standards that would be expected of new candidates, to an existing employee who is facing the prospect of dismissal.
The EHRC’s Employment Code of Practice includes detailed guidance in Chapter 6 on making reasonable adjustments, an example of which is transferring an employee to another role. An employment tribunal will expect an employer to explain why a decision not to offer a disabled employee an alternative role does not amount to a failure to make reasonable adjustments.
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The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at March 2024.