Rentokil Initial UK Ltd v M Miller

A trial period in an alternative role may be a reasonable adjustment where it makes a substantive change to the disabled employee’s work and would or might avoid the substantial disadvantage caused by a PCP, including the risk of dismissal. The adjustment need not be certain to succeed. The tribunal must decide objectively, on the circumstances known when the decision fell to be taken, whether the step was reasonable.

Where the employee proves the PCP, substantial disadvantage and an apparently reasonable identified adjustment, the burden may pass under Equality Act 2010 to the employer to show that the adjustment was not reasonable. Suitability, essential requirements and prospects of success are relevant, but the employer’s assessment is not decisive.

The claimant, a pest-control technician disabled by multiple sclerosis, could no longer safely continue in his field role and faced dismissal. He applied for a vacant service administrator role, but, after interview and written tests, was not offered it. He was dismissed when no other role was identified.

The Employment Tribunal upheld his reasonable-adjustments complaint, holding that the employer should have transferred him to the service administrator role for a four-week trial period. It consequently upheld complaints under section 15 of the Equality Act 2010 and of unfair dismissal, and made financial awards. The employer appealed, challenging the legal availability of a trial period as an adjustment, the burden of proof, the assessment of suitability, and the tribunal’s treatment of the employer’s decision-making process.

1. Appeal dismissed. The Employment Tribunal made no error in holding that a trial period in the service administrator role was a reasonable adjustment.
2. Under section 20(3) of the Equality Act 2010, the required step is any step which it is reasonable for the employer to take to avoid the substantial disadvantage. A proposed step need not be guaranteed to succeed. A change which would or might remove the disadvantage is capable in principle of being a relevant step; reasonableness remains for the tribunal’s assessment.
3. Consultation and medical investigation do not themselves alter the employee’s job, terms or working arrangements. By contrast, placing an employee in a different role on a trial basis makes a substantive change. Where the disadvantage is an imminent risk of dismissal, a trial may have sufficient prospects of avoiding that risk to be a reasonable adjustment. The contrary observations in Environment Agency v Rowan [2008] ICR 218 were obiter and were not followed.
4. The claimant had established the PCP, the substantial disadvantage and a particular apparently reasonable adjustment. The Tribunal was therefore entitled to require the employer to show why a trial placement would not have been reasonable. Section 136 did not require the claimant to prove in advance that the adjustment would succeed.
5. Whether an employee should have been placed in an alternative role is an objective question for the Tribunal. The employee’s skills, experience, qualifications, satisfaction of essential criteria and prospects of passing a trial are ordinarily material. The employer’s evidence and contemporaneous assessment require careful weight, but do not control the answer. Here the Tribunal gave cogent reasons for finding that the claimant’s existing relevant experience, the junior support nature of the role, available Excel training, and the limited evidential value of the tests justified a trial rather than permanent appointment.
6. The Tribunal did not impose a procedural duty to consider adjustments in a particular way. It permissibly treated the absence of such consideration as affecting the evidence the employer could offer, and the weight that evidence bore, on the objective question. The consequential challenges to the section 15 and unfair-dismissal findings also failed.

• Employment Appeal Tribunal: appeal dismissed; the Employment Tribunal’s findings of failure to make reasonable adjustments, discrimination arising from disability and unfair dismissal were left undisturbed.
• Employment Tribunal: upheld the claimant’s reasonable-adjustments complaint on the basis that a trial transfer to the service administrator role should have been offered. It also upheld the section 15 and unfair-dismissal complaints and awarded financial remedy.