Disability discrimination: could a trial period in a new role be a reasonable adjustment?

Disability discrimination: could a trial period in a new role be a reasonable adjustment?

Employers are under a positive duty to make reasonable adjustments or modifications to remove any substantial disadvantage faced by a disabled employee in the workplace, when compared with a non-disabled employee. Where there is no reasonable adjustment that would enable the employee to remain in their current role, it can be a reasonable adjustment to transfer them to fill an existing vacancy. The EAT has recently held that this can include allowing the employee a trial period in a new role. 

M, a pest controller, was diagnosed with multiple sclerosis (MS) and was therefore deemed to be disabled.  M’s existing field-based role ordinarily involved him working at heights with ladders and was generally physically demanding. Due to his MS, despite adjustments, over time it became apparent that M could not continue in his existing role. M therefore applied for a vacancy as a service administrator. M was unsuccessful in the selection process for that role because he performed poorly in written maths and verbal tests, and the interviewer felt he had irrelevant skills and experience. The employer did not consider offering M the admin role on a trial basis or providing him with any retraining. Having been unsuccessful in securing the admin vacancy, at a capability meeting the decision was taken to dismiss M. His internal appeal was unsuccessful; neither his line manager, nor the appeal officer had authority to offer M the admin role on a trial basis. M brought a disability discrimination claim, arguing that his employer’s failure to offer him a trial period in the admin role amounted to a failure to make reasonable adjustments. The Employment Tribunal upheld M’s claim.

The EAT dismissed the employer’s appeal and upheld the tribunal’s decision. Where a disability places an employee at the substantial disadvantage that they cannot continue in their present job, and they are therefore at risk of imminent dismissal, it can be a reasonable adjustment to give them a trial period in a new role. There is no rule of law that it must be certain, or likely, that the employee will be successful in a trial period. Any change which would or might avoid the substantial disadvantage is in principle capable of amounting to a relevant step; the only question for the tribunal is whether it was reasonable for that step to be taken. If the vacancy could potentially be considered appropriate and suitable, then the burden may pass to the employer to show that it was not reasonable to put the employee into that role, or to have done so at least on a trial basis. Whether the role was in principle suitable, whether the employee met essential requirements for it, and the prospects of the employee successfully passing a trial period, are relevant considerations for the tribunal. The employer’s assessment of these matters, and the evidence produced by the employer to support its case, should be carefully considered and weighed by the tribunal. However, the employer’s assessment is not necessarily to be treated as decisive, as the question is an objective one for the tribunal.

Comment

The EAT refused to follow non-binding comments made by the EAT in Environment Agency v Rowan [2008] ICR 218, which suggested that a trial period could not be a reasonable adjustment. The EAT’s decision is binding on future tribunals, so employers should consider allowing a disabled employee a trial period in any vacant position which is potentially suitable. If the trial period proves unsuccessful, the employer will likely be better able to persuade the tribunal that there were no further reasonable adjustments that it could have made to prevent the employee’s dismissal.

Rentokil Initial UK Ltd -v- Miller [2024] EAT 37

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