In the recent case of Miller v Rentokil, the Employment Appeal Tribunal (EAT) held that the employer, Rentokil, should have placed their employee, Mr Miller, into a new role on a trial basis, rather than dismissing him.

Mr Miller had worked as a field-based pest controller technician since April 2016. Around 40% of his work involved working at heights. In 2017, he developed multiple sclerosis, which affects the brain and nervous system, and can cause vision problems and muscle weakness. It meant that he could only work slowly and couldn’t do any work at heights, due to the risk of falling. It would be classed as a disability, in the legal sense.

In an effort to avoid dismissing him, the employer interviewed him for a more junior administrative support role. However, he was unsuccessful at the written tests and was dismissed following a capability meeting, in which it was said that no reasonable adjustments could be made for him and that there were no other suitable alternative positions. Mr Miller claimed that the employer had not made reasonable adjustments for him under the Equality Act 2010 because it had not given him a trial basis of the admin role, and the Employment Tribunal (ET) agreed.

At the Employment Appeal Tribunal (EAT), the employer appealed the ET’s decision and argued that a trial period would not have been a reasonable adjustment. The EAT agreed with the original decision of the ET. They said that Mr Miller had shown that the admin role was potentially appropriate and suitable for him. The burden of showing that it was not a reasonable adjustment to put Mr Miller into this role then moved to Rentokil. Rentokil had not successfully shown this. The EAT said that the employer should have at least given the employee a trial period and that if it had done so, there was a 50% chance he would have succeeded and the role would have been made permanent. It was noted that the written tests which Mr Miller had failed had involved the use of Excel spreadsheets, with which he was unfamiliar, but the employer could have provided him with training in using Excel.

Employers should note that any reasonable adjustments suggested in such scenarios, including trial periods, should be given serious consideration.

If you have any questions, please contact us for advice by emailing enquiries@perspectivehr.co.uk or by phoning 01392 247436.