Disability discrimination and reasonable adjustments in capability scenarios: The case of Miller v Rentokil

In this article we report on a recent case concerning disability discrimination.  This case highlights the need for employers to consider offering an employee, who can no longer do their job due to a disability, a trial period for an alternative role in order to comply with the duty to make reasonable adjustments.   The case also suggests that redeployment must be offered even where the employer has legitimate doubts as to the employee’s ability to carry out the alternative role.

Duty to make reasonably adjustments

Under the Equality Act 2010, employers have a duty to make reasonable adjustments where an employee faces a substantial disadvantage in the workplace, as a result of their disability. Adjustments only have to be made if it is reasonable for an employer to do so.

This duty was explored in the recent case of Rentokil Initial UK Ltd v Mr M Miller.

Failure to make reasonable adjustments due to disability

Mr Miller was employed by Rentokil as a pest control technician. In 2017, Mr Miller was diagnosed with multiple sclerosis. Due to his disability, Rentokil made various adjustments to his working arrangements to reduce the impact of any disadvantage he faced due to his disability. For example, because his role was field-based, Rentokil restricted Mr Miller’s ability to work at height, due to the risk of him falling.

In 2019, Rentokil considered that due to his disability, Mr Miller’s field-based role was no longer viable and they considered moving him into a different role. Mr Miller applied for a service administrator role which he was rejected for, following an interview and failed written tests. Rentokil subsequently dismissed Mr Miller because the company concluded that no further adjustments could be made to his existing role and he was not capable of performing an alternative role at the company.

Mr Miller brought a claim for unfair dismissal and disability discrimination based on Rentokil’s failure to make reasonable adjustments.

The Employment Tribunal found that transferring Mr Miller to the service administrator role for a ‘trial period’ and providing training, to assist him in succeeding in the new role, would have been a reasonable adjustment. It was held that if he was successful during the trial period, Mr Miller would likely have continued in post in the new job permanently.

Rentokil challenged the decision in the Employment Appeal Tribunal (‘EAT’). The EAT upheld the tribunal’s decision.  Rentokil was held to have failed to make reasonable adjustments on the basis that it did not offer Mr Miller  an alternative role on a trial basis or treat him more favourably than other candidates for the same role. Transferring Mr Miller to an alternative role  on a trial basis would have given him the opportunity to demonstrate his capability of performing the new role on a permanent basis and ultimately, would have made a great difference in reducing his risk of being dismissed.

Key issues when considering reasonable adjustments

The key issues addressed by the EAT include:

1. Transferring Mr Miller into an alternative role was potentially a reasonable adjustment to remove the disadvantages he faced as a result of his disability;
2. When considering whether an employer should have made reasonable adjustments, the tribunals have regard for all of the circumstances, including the suitability of the alternative role, and the prospects of the employee passing the trial and securing a permanent post.  Even though Mr Miller failed the written test for the alternative role, the tribunal came to its own conclusion about the suitability of the role and the prospects of Mr Miller being confirmed in it following a trial period; and
3. The offering of a trial period for placing an employee in an alternative role should be considered during investigations on how to reduce an employee’s substantial disadvantage and how to alleviate the risk of opting for a dismissal.

Implications for employers

This case serves as a helpful reminder that the key consideration for the tribunals is not so much the reasoning for not making a reasonable adjustments but rather, whether an employer has failed to make adjustments which they would reasonably be expected to make.

In the event of a tribunal claim for disability discrimination by an employee, they are only required to show that the employer should have made reasonable adjustments. If established, the burden of proof shifts onto employers to prove that it would not have been reasonable to expect them to make an adjustment.

Employers should take steps to show that they have investigated proposed reasonable adjustments, including redeployment, even if on a trial basis, very carefully.

The fact that the tribunal was able to impose its own view as to the suitability of the alternative role and the likelihood of a trial period being successful, in the face of a failed written assessment, in our view widens the scenarios where redeployment must be at least considered, if not implemented.

If you have any questions about disability discrimination, or any other employment law issue, please do contact a member of the Employment team.