Disability discrimination – failure to make reasonable adjustments

Posted on April 18th, 2024

The case of Miller v Rentokil highlights how a trial period in an alternative role potentially amounts to a reasonable adjustment.

Adjustments to working arrangements

Mr Miller was employed as a pest control technician, described as a ‘field role’. He was diagnosed with multiple sclerosis in March 2017. The employer made various adjustments and modifications to his working arrangements to assist Mr Miller in continuing in his role.

Alternative employment

As a result of his condition, the role became more and more difficult for Mr Miller, and in 2019 the option of moving him to an alternative role was explored. Mr Miller applied for a service administrator role, involving an interview and written test. Unfortunately, he was unsuccessful in his application. As there was no other suitable alternative role for Mr Miller, and no further adjustments could be made to his existing role, Mr Miller was dismissed.

Trial period a reasonable adjustment

Mr Miller brought claims of unfair dismissal, failure to make a reasonable adjustment and discrimination arising from disability in respect of the dismissal. The employment tribunal (ET) upheld his claim for failure to make a reasonable adjustment, finding that it would have been a reasonable adjustment to allow him a trial period in the role he applied for. This also led to the finding that his dismissal was unfair.

Employer to show it was not reasonable

Rentokil appealed the decision, one of the contentions being the ET had been wrong to regard the giving of a trial period as a reasonable adjustment. The employment appeal tribunal (EAT) confirmed that there is no rule of law that a trial period could not be a reasonable adjustment. A trial period would have removed the substantial disadvantage Mr Miller was placed at because of his disability. The burden then passed to the employer to show that it was not reasonable to have placed Mr Miller in the role on a trial period. Rentokil had not discharged this burden and the appeal was dismissed.

Advice to schools

Matters involving ill health and disability should be assessed based on the individual circumstances of the case. All possible and available adjustments to the role should be considered and discussed with the employee with a view to assisting the employee to remain in work. This includes physical adjustments, flexible working arrangements or the option of an alternative role. A referral to occupational health should be made where necessary and advice obtained as to any adjustments that can be put in place. It is common to ask occupational health for advice on the option of medical redeployment if the employee is unable to continue in their current role. This does not require a role to be created for the employee, but any vacancies should be considered, even if this means re-training the employee.

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