Good morning all and thank you for joining us for our case of the week. For those that missed out on last week’s update, which involved pregnancy discrimination, you can find that here. This week, we are examining a disability and reasonable adjustments claim in the case of Miller v Rentokil Initial UK Ltd.

The Claimant, Mr Miller, worked as a Pest Control Technician at the Respondent company. Described as a ‘field role’, the Claimant’s duties involved attending customer premises to carry out inspections, maintenance and treatment of pest issues, and working at height. While it was not the focus of his role, administrative tasks such as writing to clients, completing reports, and performing stock takes also formed part of his daily work.

In March 2017, the Claimant was diagnosed with Multiple Sclerosis, an autoimmune condition which damages the brain or spinal cord which results in the nervous system slowing down or ceasing to function. As a result of his diagnosis, his GP recommended a reduction in the number of hours worked,  to be trialed over a 2-week period. The Respondent reduced the Claimants target from 8 to 6 during this trial period after a meeting with the Claimant to determine his wellbeing and fitness for work. However, it was established that the Respondent did not expect a reduction in the speed in which the Claimant would perform his work.

Despite the drop in expectations, the Claimant’s performance sat at 77% of what was expected and the Respondent received over 30 complaints in the first quarter. A further change to the Claimant’s working area was agreed and other technicians were asked to assist the Claimant with his duties, which included the creation of a ‘helping rota’. Following a period of sickness absence, the Claimant fainted while at work in September 2017. With the Claimant’s health rapidly deteriorating due to his condition, it became clear that a physically demanding role was no longer suitable and a suggestion was made that he apply for an administrative role. The Claimant agreed and made an application for a service administrator role on 14 February 2019.

Following a process of tests and interviews, the recruiting manager stated that the Claimant did not possess the skills necessary for the role nor did he have the experience required. His application was rejected on this basis, but Rentokil did not consider offering the role on a trial basis or providing any training to help him bridge the gap between his skills and those required for the role. On 13 March 2019, the Claimant attended a capability meeting at which concerns about the further reduction in workload, health and safety concerns about the Claimant working at height and the unsuccessful application for the alternative role. He was dismissed immediately after this meeting. The Claimant brought a claim for unfair dismissal, disability discrimination, and failure to make reasonable adjustments.

The Employment Tribunal considered two examples; the first from the Equality and Human Rights Commission’s Code of Practice, which provides that ‘such a[n alternative] post might also involve retraining or other reasonable adjustments such as equipment for the new post or transfer to a position on a higher grade’. The second from the case of Archibald v Fife Council, a House of Lords (now Supreme Court) case which also sets out that ‘to the extent that the duty to make reasonable adjustments requires it, the employer is not only permitted but obligated to treat a disabled person more favourably than others… [The duty] is capable of including the step of transferring a disabled person from a post they can no longer do to a post which they can do, provided that this is a reasonable step for the employer to have to take’. The Tribunal found that the requirements for the Claimant to work at height, the demands for speed in his work, and the risk of dismissal as a result put him at a substantial disadvantage. As the employer had failed to adequately show that the movement was not a reasonable adjustment, the Tribunal ruled in favour of the Claimant.

The Respondents, brought an appeal to the Employment Appeal Tribunal, which agreed with the Tribunal’s original position and upheld the decision.

Takeaway Points

Where an employee’s disability puts them at a substantial disadvantage, the duty to make reasonable adjustments arises. That duty can, where reasonable, extend to a duty to treat a disabled employee more favourably than another applicant when considering them for alternative employment. It can also extend to providing training, to help the employee take a job requiring new skills and can include the provision of a trial period, in a role that may be suitable. The Tribunal also suggested that an appropriate length of trial period might be 4 weeks, which is consistent with the trial period an employee would receive when offered alternative employment in a redundancy situation.

Whilst the Tribunal made it clear that each matter will turn on their own facts, it was apparent in this case that some training on the Microsoft program, Excel would have allowed for the Claimant to have taken an alternative role and he should have been given a chance to trial the role before the conclusion that the role was not suitable was reached.

If you or someone you know has faced a similar issue, please do not hesitate to reach out to a member of our team for assistance.