If as a result of somebody’s disability they become unable to do the current role that they are employed in and the employer is looking to exit the employee from that position, they are obligated to look at alternative employment. This is the case in unfair dismissal law, before you even think about the disability angle.

In a recent case (Miller v Rentokil 2024 EAT 37), the particular employee concerned had multiple sclerosis, which is a deemed disability under the Equality Act 2010, a bit like cancer, ie. the employee does not have to jump through hoops to show that there is a substantial disadvantage, has a long term effect and has difficulty with normal day to day activities. They are deemed as disabled, so we move directly to consider how they have been treated.

Once the employee has a disability, then the duty to make reasonable adjustments kicks in. In this case, the employee was a field based pest controller and the role involved him working at heights for 40% of the time. He could no longer do this and could only work very slowly. This particular employer looked at other jobs within the organisation and put him forward for an administrator role but decided not to recruit him and dismissed him.

He claims that failing to place him in the administrator role on a trial basis amounted to a failure to make a reasonable adjustment. The Tribunal upheld his claim, as did the Employment Appeal Tribunal. The burden was on the employer to show that it was not reasonable to have put that person into the role on a trial basis. They clearly couldn’t convince a Tribunal of this. On an objective assessment clearly they believed that he met the essential requirements of the job and a trial could have been successful.

The way I look at it, the employer is going to have to convince the Tribunal why it couldn’t do this, and why the employee couldn’t be trained into the role, particularly when it is a large employer. For example, somebody who isn’t used to using computers on a day to day basis might be trained and adapted into doing so.

In this particular case, the employer had actually set tests in verbal usage and maths in relation to their standard interview process. These tests were ones that the employer applied to everybody applying for roles and the Claimant scored 16 out of 30 in the verbal usage test and 7 out of 30 in the maths test. It was clear that the employee didn’t have experience using Excel, the spreadsheet programme, which perhaps explains why the decision maker in the case, a recruitment manager, decided not to slot the employee into the vacancy. It did not however consider any retraining or any trial.

In the case, they went back to Archibald v Fife Council from 2004 and Lady Justice Hale’s summation that making reasonable adjustments requires the employer to treat the disabled person more favourably than others. This too was the case of a manual worker no longer able to carry out her duties for mobility reasons. Lady Justice Hale pointed out that there is no law against discriminating against people with a background in manual work but it might be reasonable for an employer to have to take the difficulty that that person would face into account when considering the transfer of a disabled worker who could no longer do that type of work. Essentially I think that means being more patient and accommodating with someone making a transition.

In this particular case, the administrator role was a more junior one than the technical role the employee had taken on previously. They took into account the fact that his technical knowledge and experience in doing the manual job would actually assist him in being able to be an administrative support worker to those other colleagues doing that role.

They weren’t unsympathetic to the employer having concerns about whether or not he could do the role, but the key to assessing that would have been the trial period.

The other flaw in the employer’s process was not just slotting the employer into that trial. Instead they seemed to have just treated him as any other applicant for the role and possibly even put him up against other people in a recruitment process. The duty to make reasonable adjustments is about prioritising the employee.

The length of the trial period that the courts were talking about in this case was a 4 week trial. Given that is actually quite a short period, it would be wise to pay an extra month’s salary whilst assessing somebody’s suitability in an alternative position rather than dismiss.

Refreshing Law
19 March 2024