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Rentokil Initial UK Ltd v Miller

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Trial period in new role can be reasonable adjustment

Capability dismissal

Under the Equality Act 2010 , you’re under a duty to make reasonable adjustments for disabled employees to ensure they’re not placed at a substantial disadvantage compared to non-disabled employees.

In Rentokil Initial UK Ltd v Miller 2024 , Mr Miller (M) worked as a pest control technician for Rentokil (R). This was a physically demanding role. After being diagnosed with multiple sclerosis, M reached a point where he could no longer continue working in his current role and so R began to explore the possibility of an alternative role. M applied for a service administrator role but, following an interview and written tests, the decision was made not to offer him that role. As there was no other suitable alternative role, M was dismissed following a capability meeting. He brought a disability discrimination claim alleging R had failed in its duty to make reasonable adjustments by not placing him in the service administrator role on a trial basis. The employment tribunal ruled in M’s favour and so R appealed to the Employment Appeal Tribunal (EAT).

Failure to make reasonable adjustment

The EAT upheld M’s claim. M’s disability placed him at a substantial disadvantage - he couldn’t continue in his current role and so was at real risk of dismissal. An alternative role was a reasonable adjustment which would avoid that disadvantage.

M had shown that the alternative role was potentially suitable for him and so the burden then passed to R to show it wasn’t reasonable to have put M into that role, or to have done so at least on a trial basis. R hadn’t discharged that burden. On the facts, although it wouldn’t have been reasonable to expect R immediately to appoint M permanently to the role, it would have been a reasonable adjustment for R to offer M a trial period and the tribunal had found there was a 50% chance of M being confirmed in the role after the trial; it didn’t need to be guaranteed or likely to any degree that M would be successful in the trial. R should have considered whether M could carry out the alternative role as a reasonable adjustment, rather than just whether he should be appointed to it based on a competitive recruitment process (see The next step ).

Implications

This means that where a disabled employee is no longer capable of performing their current role, it can be a reasonable adjustment to offer them a trial in an alternative role, even if it’s not reasonable to immediately appoint them permanently to that role. They are entitled to be treated more favourably than other candidates. The question is whether a trial has sufficient prospects of avoiding dismissal such that it’s reasonable for you to take that step.

Tip. Offering a trial may still not be a reasonable adjustment taking account of all the circumstances, including the suitability of the alternative role and the prospects of the employee passing the trial.

Tip. If you intend to argue that offering an alternative role or even a trial in it isn’t reasonable, ensure you’ve got evidence to support that, such as the employee not being sufficiently qualified or skilled for the role (even with some retraining).

For the EAT’s ruling in this case, visit https://www.tips-and-advice.co.uk , Download Zone, year 26, issue 8.