Rentokil Initial UK Ltd v M Miller

The Employment Appeal Tribunal held that a trial period in a different role can, in law, amount to a reasonable adjustment under section 20(3) Equality Act 2010 where it would or might avoid the substantial disadvantage caused by a provision, criterion or practice (PCP). The tribunal’s finding that the claimant was at substantial risk of dismissal because he could no longer perform his field role, and that a trial in an available service administrator role could have avoided or materially reduced that risk, was not shown to be erroneous. The EAT rejected the submission that a trial is merely an investigatory step or equivalent to consultation/medical investigation and therefore incapable as a matter of law of constituting a reasonable adjustment.

The EAT also confirmed the correct operation of the burden of proof under section 136: once a claimant establishes a PCP, substantial disadvantage and an apparently reasonable adjustment, the burden may shift to the employer to show it was not reasonable to take that step. The tribunal was entitled to reach an objective conclusion that the employer ought to have offered a trial period despite the employer’s contemporaneous assessment and test results.

Background and procedural posture:

• Claimant employed as a pest-control technician since 2016 and diagnosed with multiple sclerosis in 2017. Over time his disability made his field role unsafe and unworkable.
• By early 2019 the employer concluded he could not continue in the field role. The claimant applied for service administrator vacancies but was not offered the role after interview and written tests. He was dismissed following a capability meeting on 13 March 2019 and internal appeal was unsuccessful.
• The claimant brought claims in the employment tribunal for failure to make reasonable adjustments (section 20 Equality Act 2010), discrimination arising from disability (section 15), and unfair dismissal. The employment tribunal found that the employer should have offered a trial period in a service administrator role, succeeded on the section 15 claim and found dismissal unfair. The employer appealed to the Employment Appeal Tribunal.

Nature of the appeal and issues:

1. Whether a trial period in a different role can, as a matter of law, be a reasonable adjustment.
2. Whether identification of suitable vacancies was sufficient to shift the burden of proof under section 136.
3. Whether an employer’s genuine and reasonable conclusion that an employee is unsuitable for a role can preclude a tribunal finding that offering the role was a reasonable adjustment.
4. Whether the tribunal wrongly relied on what was in the decision‑maker’s mind (a subjective approach) rather than applying an objective test.

Court’s reasoning (concise):

(i) On whether a trial can be a reasonable adjustment the EAT held there is no rule that a trial period cannot be a reasonable adjustment. Section 20(3) requires the employer to take steps reasonable to avoid the substantial disadvantage; a substantive change such as placing an employee in another role on a trial basis can have immediate, practical effect in avoiding dismissal and so is capable of amounting to a relevant step. The judge disagreed with obiter observations in Environment Agency v Rowan to the extent they suggested a trial is merely investigatory.

(ii) On burden of proof, the tribunal correctly applied section 136: once the claimant established a PCP, substantial disadvantage and identified an apparently reasonable adjustment (the service administrator role on trial), the burden could shift to the respondent to show it was not reasonable to have taken that step.

(iii) On employer assessment and suitability, the EAT reaffirmed that the question is objective for the tribunal. Evidence of employer assessments (tests, interviews) is relevant and must be weighed, but the tribunal is not bound to defer to the employer and was entitled to conclude that a trial period would have been a reasonable way to address the employer’s concerns.

Conclusion: The EAT dismissed the appeal and upheld the tribunal’s reasoning that a trial period in the service administrator role would, in the circumstances, have been a reasonable adjustment.

Appeal dismissed. The Employment Appeal Tribunal held that (1) offering an employee a trial period in a different role can, in law, be a reasonable adjustment under section 20(3) Equality Act 2010 where it would or might avoid the substantial disadvantage caused by a PCP; (2) the tribunal did not err in concluding that the claimant had shown a PCP and substantial disadvantage and had identified an apparently reasonable adjustment such that the burden under section 136 shifted to the employer; (3) the tribunal was entitled, on the evidence, to conclude objectively that it was reasonable to offer a trial in the service administrator role despite the employer’s contemporaneous concerns about tests and suitability.

Appeal to the Employment Appeal Tribunal from an employment tribunal decision following a full merits hearing (merits hearing before Employment Judge Hawksworth, Mr A Kapur and Ms H T Edwards). Employment Appeal Tribunal judgment reported at [2024] EAT 37. No neutral citation for the original employment tribunal decision is given in the judgment.