UK: Disability Discrimination: Reasonable Adjustments
Authors: Graham Mitchell, Ruth Bonino and Sophie Jackson
Mr. Miller was diagnosed with multiple sclerosis and was no longer able to carry out his role as a pest control technician for Rentokil. He was unsuccessful in his application for an alternative role as an administrator due to his low scores in a written test and an unsatisfactory interview.
Mr. M was successful in bringing claims for discrimination arising from disability and unfair dismissal in the tribunal. The tribunal ruled that Rentokil had failed to make a reasonable adjustment by not offering him a trial period for the administrator role. The Employment Appeal Tribunal (EAT) upheld the tribunal’s decision.
The tribunal considered that having heard all the evidence, it would have been reasonable to offer Mr. M a trial period since there was a reasonable chance that he would have performed better than the recruitment process suggested.
This was despite the fact that Rentokil genuinely concluded that Mr. M was not qualified or suitable for the role. Whether it would have been reasonable for an employer to give an employee a particular role, on a trial basis or not, is an objective question of the tribunal to decide weighing up all the evidence.
Offering a trial period can be a reasonable adjustment and is not a mere process or tool of investigation, such as obtaining a medical report or consulting with the employee. The trial period does not have to be guaranteed to work for it to be reasonable for the employer to offer it.
Key Action Points for Human Resources and In-House Counsel
When a disabled employee is no longer able to carry out their role due to their disability, employers should ensure that they consider the possibility of trial periods for alternative roles in appropriate circumstances.
Factors such as the suitability of the role and the prospects of the employee passing the trial will be relevant, but as in this case, the mere fact that the employee has failed the assessment for the role does not necessarily mean that a trial period is not a reasonable adjustment to make. If an employer decides against a trial period, it should retain evidence which explains its reasoning for its decision.
