Employment Law Cases

Rentokil Initial UK Ltd v Miller

Where a disability places an employee at the substantial disadvantage that they cannot continue in their present job, and are at risk of imminent dismissal, there is no rule of law that it cannot be a reasonable adjustment to give them a trial period in a new role.

Background

Less than a year after starting work for Rentokil as a field-based pest controller, Mr Miller was diagnosed with MS. Rentokil made various modifications to try and enable Mr Miller to continue in his role. However, by the start of 2019, it became clear that he couldn’t remain in a field-based role and other possibilities were explored. Mr Miller applied for a service administrator role but he was unsuccessful. A capability assessment for his role was held in March 2019 where it was concluded no further adjustments could be made for him and there were no other suitable alternative positions. He was dismissed at the end of the meeting. He brought a tribunal claim that failing to place him in the administrator role on a trial basis amounted to a failure to make reasonable adjustments under Equality Act 2010. The tribunal upheld his claim. Rentokil appealed.

EAT decision

The appeal was dismissed.

Section 20(3) of the Equality Act 2010 refers simply to ‘such steps as it is reasonable to have to take to avoid the disadvantage’. The statute does not attempt to restrict or sub-categorise what form such steps might take in the given case. Further, it is well established that the proposed step does not have to be guaranteed to work. The only question is whether it is reasonable for it to be taken.

Where the substantial disadvantage is that the employee is at almost certain risk of dismissal (as was the case here), it is open to a tribunal to consider whether, in the given case, the proposed trial period in another particular role would remove the risk of dismissal, or had sufficient prospects of averting dismissal, such that it was reasonable for the employer to be expected to take that step. There is no rule or principle of law that a trial period in a new role cannot, in law, be a reasonable adjustment. Conversely, a tribunal is not bound in every case where the employee was facing dismissal, to conclude that the employer ought to have given them a trial period in a particular other role. Whether or not it ought reasonably to have done so is a matter for the appreciation of the tribunal, taking account of all the circumstances, including the suitability of the role, and the prospects of the employee succeeding at the role and passing the trial.

Putting Mr Miller into the service administrator role on a trial basis would have not merely involved postponing the date of his inevitable dismissal by four weeks. It would not be just a short stay of execution but held out the prospect of the axe being lifted entirely. The tribunal plainly considered that it had a real prospect of avoiding the disadvantage altogether by Mr Miller being confirmed in the new role at the end of the trial period – a chance which the tribunal put at 50%. Therefore the tribunal did not err in holding that offering Mr Miller a trial period in the service administrator role was a reasonable step for Rentokil to have to take to avoid the disadvantage.

Rentokil also argued that where an employer genuinely and reasonably concludes that an employee is not qualified or suitable for a role, it cannot be a reasonable adjustment to require the employer to appoint them to it. The EAT gave this short shrift.

Whether the employer ought reasonably to have put the employee into a given role, whether on a trial basis or not, is an objective question for the appreciation of the tribunal based on the facts found by it, drawing upon all of the evidence presented to it. It is not bound to defer to the view of either the employer or the employee. That said, a usually relevant consideration for the tribunal will be whether the employee met essential requirements of the role, in terms of skills, qualifications, knowledge, experience, or otherwise. If the employer contends that the employee did not do so, and presents evidence, such as the results of a test or assessment process that it carried out, in support of its case, that is evidence that should be carefully considered and weighed by the tribunal.

The tribunal may be satisfied by such evidence that it would not be reasonable in all the circumstances to have expected the employer to have put the employee into that role, even on a trial basis. But it is not the law that in every case the tribunal must defer to the employer’s view. The tribunal should properly take the evidence which is said to support it, into account, and give it due weight. But, having done so, it may nevertheless conclude, on all the evidence available to it, and facts found, that the employee should reasonably have been given the role, or at least a trial in it.

Comment

This is a clear warning to employers that if they are considering dismissing an employee suffering from a disability then they must not only consider alternative roles but trial them if necessary. Unless the employee quite clearly does not have the ability to do the role – for instance the role requires professional qualifications such as being a solicitor or accountant or holding an HGV, the employer’s subjective view of their ability is something that can be scrutinised by the tribunal. Much better to express concerns but then trial it.