Pest control firm Rentokil Initial UK has lost an appeal against the ruling that it failed to make a reasonable adjustment for an employee with multiple sclerosis.
Mr Miller was a pest control technician and was diagnosed with multiple sclerosis in 2017.
Various adjustments to his working arrangements and terms and conditions were made to reduce the impact his disability had on his role – he could no longer work at height because of the risk of falling – but by 2019 the company concluded there was no viable way for him to continue in this job and alternatives began to be explored.
Reasonable adjustments
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In February 2019 Miller applied for a service administrator role at the firm, but failed the written tests for it.
A capability assessment for his pest control role was held in March 2019, in which it was concluded no adjustments could be made for him and there were no other suitable alternative positions. He was dismissed at the end of the meeting.
Miller brought an employment tribunal claim for disability discrimination, unfair dismissal, and for a failure to make reasonable adjustments.
The employment tribunal found that offering a trial period and retraining for the admin role would have been considered a reasonable adjustment. For example, the claimant’s lack of experience with Excel software could have been addressed by providing him with training, the tribunal said.
It found in his favour and said that had Miller been offered a trial period, there was a 50% chance he would have succeeded and the role would have been made permanent.
Rentokil Initial UK challenged the decision at the Employment Appeal Tribunal. It argued that the tribunal erred when it said a trial period could be considered a reasonable adjustment and that if an employer reasonably concludes a candidate is not qualified or suitable for a role, it cannot be a reasonable adjustment to appoint them to it.
However, the EAT’s decision this week dismissed the company’s appeal.
It said: “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, 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 the claimant being confirmed in the new role at the end of the trial period – a chance which the tribunal when considering remedy put at 50%.
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“I conclude that the tribunal did not err in holding, as such, that offering the claimant a trial period in the service administrator role was a reasonable step for the respondent to have to take to avoid the disadvantage in this case, on the basis that a trial period could not ever in law be a reasonable adjustment.”
Rentokil Initial UK has been contacted for a response.
