Home » Rentokil Initial UK v Miller

Rentokil Initial UK v Miller

Disclaimer – please read
This page does not apply outside Great Britain.
Last updated 27th March, 2024.

The claimant was no longer able to do his job, due to his disability. The employer considered him not suitable for an alternative role, but a employment tribunal held it would have been a reasonable adjustment to offer him a trial period in it. The EAT upheld the tribunal decision, saying that a trial period can be a reasonable adjustment. It was for the tribunal to decide what was reasonable. My comments below.

2004, Employment Appeal Tribunal (EAT). Full decision www.bailii.org/uk/cases/UKEAT/2024/37.html

Facts

The claimant’s multiple sclerosis developed to such a stage that he was unable to continue in his “field role” as a pest control technician, even after adjustments and modifications. He was asked to stay at home on full pay. There were discussions about moving him into a different role.

He applied for a role as a service administrator, which was a more junior support role for his technician job. Recruitment of service administrators was under the control of a different manager. The claimant’s application for this role was turned down after written tests and an interview. That was on the basis of poor written test results, and the recruiting manager’s view from the interview that the claimant had irrelevant skills and experience for the role.

The claimant was dismissed after a capability meeting.

The employment tribunal (ET) held that the employer had failed to make the reasonable adjustment of giving the claimant a four-week trial period in the service administrator role. Among the ET’s reasons for this decision were [§18, 53]:

  • The ET did not agree that the claimant had limited relevant experience for the service administrator role. It was a support role to what he had been doing for over two and a half years. Knowledge of the substantive role would be expected to be helpful to someone supporting that role.
  • His technician role had included a number of administrative functions which would also be relevant experience for the support role. His lack of experience with Excel spreadsheets programme could have been addressed by providing him with training on Excel.
  • He scored poorly in written maths and verbal tests, which were taken by all the employer’s job candidates. However, it was unclear whether he had passed similar tests when becoming a technician, which itself required some verbal and maths skills. A trial period could have addressed any concerns on his poor performance in those tests.
  • The ET pointed out that the employer’s procedure seems to focused on whether he should be appointed, rather than whether he could do the role so as to be offered it as a reasonable adjustment [below Comment: Disabled person may need to be treated more favourably].

Held: The Employment Appeal Tribunal (EAT) upheld the ET decision that the employer had failed to make reasonable adjustments. In particular, the EAT rejected the employer’s argument that a trial period cannot be a reasonable adjustment.

EAT: Trial period can be reasonable adjusment

The employer argued that based on case law, a trial period cannot be a reasonable adjustment. The Employment Appeal Tribunal (EAT) rejected the argument.

The EAT reviewed the case law on this issue:

  • In Smith v Churchill Stairlifts, 2005, the Court of Appeal held that a trial period was a reasonable adjustment. However the issue there was whether the claimant was at a substantial disadvantage. The EAT in the present case said it would not have been content to rest its decision on Smith, because whether a trial period can be a reasonable adjustment was not a live issue considered by the court. [§21-23, 34]
  • In Tarbuck v Sainsbury’s (bailii.org), 2006, the EAT held that a failure by the employer to consult the employee about reasonable adjustments could not in itself be a breach of the reasonable adjustment duty. The question was whether objectively the employer made the adjustments it was required to make, not whether it consulted about them. [§19]
  • Following the approach in Tarbuck, the EAT in Spence v Intype Libra (bailii.org), 2007, held that obtaining a medical report (before dismissing someone on long-term sick leave) could not be a reasonable adjustment.
  • Then in Environment Agency v Rowan (bailii.org), 2008, the EAT expressed its doubts, without deciding the issue, on whether a trial period can be a reasonable adjustment. The EAT in Rowan said the reasonable adjustment duty envisaged steps “which have some practical consequence of preventing or mitigating the difficulties faced by a disabled person at work. [The duty] is not concerned with the process of determining what steps should be taken…”. It was though prudent for employers to adopt a trial period in an appropriate case, to see whether for example home-working (which was the reasonable adjustment sought in Rowan) was a reasonable adjustment. An employer who had failed to investigate the possibility of home-working by a trial period might find it difficult to establish that home-working was not a reasonable adjustment. A trial period, said the Rowan EAT, was akin to a consultation, or the obtaining of medical and other specialist reports. These did not of themselves mitigate or prevent or shield the employee from anything, but served to better inform the employer as to what steps, if any, will have that effect. [§26]

The EAT pointed out that the reasonable adjustment duty in s.20(3) EqA refers to “such steps as it is reasonable to have to take to avoid the disadvantage.” [§32]

It is well-established, said the EAT, that the proposed step does not have to be guaranteed to work (Reasonable adjustment rules: employment>Would the proposed adjustment reduce the substantial disadvantage?). The EAT pointed to some other EAT decisions on this. It added that in Griffiths v Secretary of State for Work and Pensions, 2015 the Court of Appeal had said that any change “which would or might remove the substantial disadvantage caused by the PCP is in principle capable of amounting to a relevant step. The only question is whether it is reasonable for it to be taken.” [§32]

The EAT accepted that as discussed in Tarbuck and Spence, engaging in consultation or requesting a medical report are not, as such, steps of that type, because taking either of those steps would not in itself have any impact on the substantial disadvantage, though it might lead to other steps being taken that do. [§33]

However, the EAT decided that offering an employee a trial period in a different role, as in the present case, is not analogous to consulting the employee or seeking a medical report, and that it can be a reasonable adjustment. The EAT said:

35. … Neither of those things [consulting the employee or seeking a medical report], in or of themselves, involves any change to an employee’s substantive terms, working conditions or arrangements. By contrast, putting an employee into a new role on a trial basis does. It effects a substantive change in what they are doing, though it remains to be seen how it will work out, and how long it will last.

36. Further, where, as in this case, the substantial disadvantage is that the claimant is at almost certain risk of dismissal, it is then open to the 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. Thus, I conclude that 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.

In the present case, putting the claimant 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. The trial held out the prospect of the axe being lifted entirely. The ET plainly considered that it had a real prospect of avoiding the disadvantage altogether, by the claimant being confirmed in the new role at the end of the trial period. In setting compensation, the tribunal had assessed the chance of him being confirmed in the role as 50%. [§37]

Link: Reasonable adjustment rules: employment>Trial period.

EAT: Tribunal can overrule employer on whether claimant is suitable for trial period

The EAT rejected an argument by the employer that where the 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 employer cited particularly the claimant’s poor performance in the written tests. [§46-47]

The EAT said that “in every case, 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.” [§50]

Plainly a usually relevant consideration for the ET would be whether the employee met essential requirements of the role, in terms of skills, qualifications, knowledge, experience, or otherwise. The ET would consider any evidence from the employer on that, such as the results of a test or assessment process that it carried out [§51]. The EAT said that:

51. … the issue, while a matter for the tribunal’s objective determination, is whether this employer ought reasonably to have put this employee (on a trial or not) into this role. What is reasonable is also to be judged by reference to the facts as they stood, and information that was available, at the relevant time when the decision fell to be taken.

In the present case, the ET had given cogent reasons why it was not persuaded that the outcome of the written tests showed that the employer ought not reasonably to have been expected to give the claimant a trial in the service administrator role. [§53-54]

The conclusion that a trial period would be reasonable was reinforced by the ET’s findings that there was no clear evidence the claimant was given priority consideration for the role, or considered any differently from any other candidate for it. The ET’s point here, said the EAT, was that it would not be enough for the employer to show that the claimant was considered not to have performed well enough by the standards the recruiting manager would ordinarily apply in a competitive exercise. Rather the ET needed to be satisfied that the claimant’s performance assessment was such that it would not be reasonable – for the purposes of the reasonable adjustment duty – to put him into the new role, at least on a trial basis. Also the manager’s decision was based purely on the interview and tests, without the benefit of knowledge of how the claimant had performed in his current role. [§55-56]

EAT: Mental processes of employer

The EAT rejected an argument by the employer that the ET had erred by focusing on what was going on in the mind of the relevant decision-maker. [§17]

The EAT agreed with the employer that it does not matter, for the purposes of a reasonable adjustment claim, what went on in the mind of the decision-maker at the time (apart from the separate issue of whether the employer had actual or constructive knowledge of the disability and disadvantage). Whether they failed to make an adjustment which they ought reasonably to have made was an objective question for the tribunal. [§58-59]

This argument by the employer relied in particular on the ET’s observations about the lack of evidence that the claimant was “considered” any differently to any other candidate, or that the employer “considered” the role as a reasonable adjustment, and whether, because of his disability, the claimant’s application should be treated more favourably than that of other candidates. [§60] [Comment: A reasonable adjustment can require a disabled person to be treated more favourably than a non-disabled person, including when putting them into an alternative job: below Comment: Disabled person may need to be treated more favourably).

However, said the EAT, the ET did not conclude that the employer had failed to make a reasonable adjustment because it had failed to follow a particular process, or to consider the matter in a particular way. Rather, the ET was making the point that, because the recruiting manager had not considered the matter from the point of view of whether the claimant should have been treated more favourably, or given a trial, on account his disability, this affected what evidence the employer was able to present and the significance or weight which the ET could place on it, when considering what the evidence contributed to the assessment of what the employer should reasonably have done. The EAT said that an employer which has investigated, assessed and decided what to do with the duty of reasonable adjustment in mind, may be in a better position to produce evidence which persuades the ET that the employer ought not reasonably to have been expected to have taken the step at issue. An employer that has not done so, may struggle to produce evidence that convinces the ET of that. [§61-62]

EAT: Shift in burden of proof

The EAT rejected an argument by the employer that the ET had adopted the wrong approach in deciding that the burden of proof had shifted to the employer to show that it would not be reasonable to offer a trial period. [§38-45] (Reasonable adjustment rules: employment>Burden of proof)

My comments

Comment: Trial period can be reasonable adjustment

I’m pleased the EAT has held a trial period can be a reasonable adjustment (above EAT: Trial period can be reasonable adjustment). I’ve argued on this website for some time that it can be. The reasonable adjustment duty under s.20(3) EqA is to take “such steps as it is reasonable to have to take to avoid the disadvantage.” As I see it (the EAT expressed the argument differently), a trial period is different from a consultation or medical report in that at least for the trial period, it actually alleviates the disadvantage, or has the prospect of actually alleviating it. As the EAT here says, it is well established that an adjustment need not be guaranteed to alleviate the disadvantage.

This does not just apply to a trial period in a new role. In Rowan for example (considered in the EAT decision), the question was whether homeworking would have been a reasonable adjustment.

Comment: Tribunal assesses reasonableness

Unsurprisingly, the EAT rejected an argument that where the employer “genuinely and reasonably” concludes an employee is not qualified or suitable for a role, it cannot be a reasonable adjustment to require the employer to appoint the person to it (above EAT: Tribunal can overrule employer on whether claimant is suitable for a trial period). The employment tribunal (ET) decides what adjustment is objectively reasonable, rather than applying (say) the much laxer unfair dismissal test of whether the employer’s action fell within the “range of possible reasonable responses” open to an employer.

The EAT does say though that the ET should judge what is reasonable by reference to the facts as they stood, and the information that was available, at the time when the decision fell to be taken by the employer.

Comment: Disabled person may need to be treated more favourably

The recruiting manager for the service administrator role (who did not give evidence) may have just treated the claimant like any other applicant for the role. However, the reasonable adjustment duty can require a disabled person to be treated more favourably than a non-disabled person, including when putting them into an alternative job. For example, the House of Lords in Archibald v Fife Council held that it might be reasonable to forego a competitive interview.

The EAT made the point that the employer’s mental processes do not matter as such, in deciding what is objectively reasonable (above EAT: Mental processes of employer). This is like for the objective justification test under s.15 EqA: Objective justification defence>Outcome vs procedure.

However, it is interesting that the EAT said an employer may struggle to persuade the tribunal that the trial period was not reasonable if it has not mentally applied the right test, of seeing the alternative role as a possible reasonable adjustment, so that it may be reasonable to treat the claimant more favourably than other applicants. What consideration the employer had given to the matter affected what evidence it was able to present to the ET, and the significance or weight which the ET could place on it.

20th anniversary of stammeringlaw, 1999-2019