Reasonable adjustments – A Timely reminder

The recent Employment Appeal Tribunal (EAT) decision of Miller v Rentokil [2024] EAT 37 serves as a timely reminder to employers of the importance of implementing reasonable adjustments for disabled staff members.

The legal bit

Section 20 of the Equality Act 2010 is the duty to make reasonable adjustments. The duty applies where, broadly, a provision, criterion or practice (PCP) of the employer (and service providers) puts a disabled person or disabled people at a substantial disadvantage in comparison with persons who are not disabled. The employer is required to take such steps as it is reasonable to have to take to avoid the disadvantage. Substantial means only “more than minor or trivial”

Background

The claimant worked as a field-based pest control technician, which was a physically demanding role, during which he was very often required to work at heights. After being diagnosed with multiple sclerosis in 2017 he was no longer able to work in this role because of the difficulties in working at heights and at pace.

The respondent made various adjustments and modifications to the claimant’s working arrangements. It also looked at other jobs in the business to redeploy the claimant after concluding that there was no viable way for the claimant to continue the field-based role given the deterioration of his physical health. During the exploration of deployment, the claimant applied for an administrator role. He was unsuccessful following an interview process and was subsequently dismissed.

The claim

The claimant brought a claim in the employment tribunal alleging that the respondent’s decision not to place him in the administrator role on a trial basis amounted to a failure to comply with its duty to make reasonable adjustments. The tribunal upheld his claim and the EAT subsequently agreed with the tribunal.

The tribunal highlighted that transferring an employee to another role when they become unable to perform their role is an example of a reasonable adjustment included in the EHRC Code of Practice. The respondent had vacancies for two service administrator roles, which may have been suitable for the claimant. The tribunal found that the claimant’s technical role included various administrative functions, and any lack of experience could have been addressed with additional training.

Under the Equality Act 2010, an employer has a requirement to make reasonable adjustments for those who they know, or could reasonably be expected to know, are disabled. If a staff member can no longer carry out their role due to a disability, a reasonably adjustment could include redeployment to another role, adaptation of the role or additional tools and support to enable the staff member to continue working. Dismissal on grounds of capability must always be a last resort for an employer once these steps have been considered, and provided it is fair to do so.

Equally, the EAT found that the claimant was at a substantial disadvantage because of his disability. Moving the claimant to an alternative role was a potential reasonable adjustment that the respondent should have explored. The respondent failed to discharge its burden and show that it would not have been reasonable to move the claimant into that role, at least on a trial basis. Furthermore, the EAT found that there is no rule of law preventing a trial period from being considered as a reasonable adjustment, regardless of whether the employee would be successful in the role, nor is it restricted in statute.

The EAT considered that suitability for different roles is certainly a factor that an employer should consider, as well as the prospects of an employee passing a trial period. However, the EAT reiterated that it is a well-established principle that proposed steps do not have to be guaranteed to work. The only tests for implementing a reasonable adjustment are whether it would be capable of removing the substantial disadvantage caused by the PCP and whether it is reasonable for the employer to take that step.

Conclusion

This decision is a timely reminder to employers to ensure that employers consider a duty to make reasonable adjustments for disabled employees. If a disabled employee can no longer perform his or her substantive role, redeployment is an option that employers must consider very carefully, even if it is on a trial basis. Please contact our employment team if you need any assistance on implementing reasonable adjustments and supporting staff with disabilities.