Disability Discrimination and the Obligation to Make Reasonable Adjustments: Alternative Roles and Trial Periods

In the recent case of Rentokil Initial UK Ltd v Miller [2024] EAT 37, the EAT considered whether an employer had failed to make a reasonable adjustment when it did not offer a disabled field employee a trial period in an administrative role.

Mr Miller worked as a field-based pest controller. After being diagnosed with multiple sclerosis in March 2017, he experienced challenges in undertaking his role because it involved him working at heights with ladders, and was generally physically demanding. Various adjustments to his working arrangements and terms and conditions were made to mitigate the ongoing impact his disability had on his ability to undertake his role.

In February 2019, Mr Miller applied for a service administrator role at Rentokil but failed the written tests and interview for it. Following that, a capability meeting was held for his existing pest control role in March 2019 and it was concluded that there were no further adjustments that could be made for him which would alleviate the difficulties he experienced in undertaking his role which arose from his disability. It was also concluded that there were also no other suitable alternative positions for Mr Miller within the company and he was therefore dismissed at the end of the meeting.

Mr Miller subsequently brought an employment tribunal claim for disability discrimination, unfair dismissal, and alleged a failure by the company to make reasonable adjustments. The tribunal upheld Mr Miller’s claim.

On appeal, the Employment Appeal Tribunal (EAT) determined that the Claimant was placed at a substantial disadvantage because of his disability as he could no longer carry out his duties in his field-based role. Moving the Claimant to an alternative role was potentially a reasonable adjustment which would have removed that disadvantage. The tribunal found that, had the claimant been offered a trial period in the service administrator role, there was a 50% chance that it would have succeeded, and the role would then have been made permanent.

The EAT was satisfied that Mr Miller had shown that the alternative role was potentially appropriate and suitable. The burden then passed to Rentokil to show that it was not reasonable to have put the employee into that role, or to have done so at least on a trial basis.

The impact of this judgment therefore is to make it clear that a reasonable adjustment may well include moving a disabled employee on to a trial period in a new role where they are no longer able to carry out their usual role and there is no need for their success in that new role to be certain, or likely to some particular degree, that the employee would be successful in that new role over the trial period.

This case highlights the importance for employers to consider what reasonable adjustments they can make for their employees, including redeployment and to remember that they have the burden of demonstrating why it may not be reasonable to make a particular reasonable adjustment for a disabled person.

Should you have any queries in relation to the effects of this decision on your business and/or employment rights, or indeed any other employment law related query, please contact Linky Trott or any other member of our Employment Team.

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