Reasonable adjustments – offering a trial period in a different role

In the case of Rentokil Initial UK Ltd v Miller [2024] EAT 37, The claimant, Mr Miller, was employed by Rentokil as a pest control technician, which was a physically demanding role and involved working at height using ladders.

In March 2017, he was diagnosed with multiple sclerosis. Rentokil made various modifications to his working arrangements and to his terms and conditions, with the aim of mitigating the effects of his disability. By the end of 2018, however, Rentokil had concluded that it was not viable for Mr Miller to continue in his role as a pest controller. He was suspended on full pay while his employer explored the possibility of moving him to a new role.

In February 2019, Mr Miller applied for the role of service administrator. He undertook the required assessment relevant to all candidates applying for roles at Rentokil. Following an interview, the recruiting manager concluded that Mr Miller did not have the relevant skills or experience for the job, so his application was rejected.

In March 2019, Mr Miller was dismissed on grounds of incapability. After an unsuccessful appeal against his dismissal, he brought claims in the employment tribunal for failure to make reasonable adjustments, discrimination arising from disability and unfair dismissal. Mr Miller’s claims were upheld by the Tribunal but Rentokil appealed which was dismissed by the EAT.

EAT Decision
It agreed with the tribunal’s conclusion that a trial period can be a reasonable adjustment in itself; it is not conditional on meeting any threshold for being successful. If the employee is at almost certain risk of dismissal, it is open to the tribunal to consider whether the proposed trial period in another role had sufficient prospects of averting that dismissal, meaning that it is reasonable for the employer to take that step. In Mr Miller’s case, it was clear that the tribunal had concluded it would have had a real prospect of successfully avoiding his dismissal. That is not to say that the employee will be successful in that trial but in this case the EAT found that had a trial been offered there would have been a real prospect of avoiding the disadvantage (50% chance the employee would have been offered the new role permanently). In Mr Miller's case, whilst he had not performed well in the written and numeracy tests as part of the application process, his technician role was senior to the administrative role, and involved an element of report writing and other transferable skills. Mr Miller might have performed better during the trial period than the application process suggested.

Takeaways
This case has highlighted the significant complexities faced by employers considering reasonable adjustments for employees. Whilst this decision does not necessarily mean that all disabled employees must be offered a trial period in an alternative role if they are no longer capable of carrying out their original job, employers should give due consideration to whether additional training and a trial period are an appropriate adjustment to make in the circumstances. They should not follow the same competitive recruitment process and apply the same standards that would be expected of new candidates, to an existing employee who is facing the prospect of dismissal. Employers should consider in particular:

• That disabled employees are entitled to be treated more favourably than other candidates when considering redeployment.
• Whether a trial period in a role should be offered as a separate reasonable adjustment.
• What the appropriate selection criteria for a role should be, considering the very specific purpose of the trial period in these cases.
• Whether there is an objective justification for not making the adjustment of offering a trial period, even if there appears to be an objective justification for not making a permanent redeployment.

Rollits’ employment team can advise on sickness absence from the employer or employee’s perspective, steps required to be taken to manage such sickness absence (whether long term or intermittent) including consideration of reasonable adjustments alongside medical reports from an appropriate medical professional or Occupational Health and how to conclude such a process in supporting an individual back to work or whether it is appropriate to terminate employment.