Trial period can be a reasonable adjustment under UK law, rules EAT

The Employment Appeal Tribunal has ruled that when it comes to the employers duty to make reasonable adjustments for disabled employees a trial period can, of itself, amount to a reasonable adjustment and a failure to offer may constitute a breach of Section 20 of the Equality Act 2010. The case is called Rentokil Initial UK Ltd v Miller. We’ll speak to an employment lawyer about the implications of the ruling for employers. 

A reminder. Section 20 of the Equality Act 2010 sets out the duty to make reasonable adjustments. The duty applies where, broadly, a provision, criterion or practice of the employer puts a disabled person at a substantial disadvantage in comparison with persons who are not disabled. The employer is required to take such steps as it is reasonable to have to take to avoid the disadvantage. Trial periods are often used by employers to help judge whether a particular adjustment might help but, to date, there has been no clear ruling on whether a failure to offer a trial period could, of itself, be a breach.

Personnel Today reports on this and sets out the facts of the case. 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 but by 2019 the company concluded there was no viable way for him to continue in this job and alternatives began to be explored.
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. In the tribunal’s view, 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 appealed to the EAT arguing 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. The EAT flatly rejected that on the basis that it is not enough for the employer to show that the claimant was considered not to have performed well enough by the standards that the recruiting manager would ordinarily apply in a competitive exercise. The Employment Tribunal had been entitled to take the view that although the claimant’s poor performance on the written tests may have given the employer some concerns, those worries could have been met by offering him a trial period. 

This case is useful because until now there has been doubt about whether a trial period can, of itself, amount to a reasonable adjustment. The EAT had looked at this in 2008 in Environment Agency v Rowan and didn’t think it could on the basis it was concerned with merely the process of determining what steps should be taken by the employer. The EAT in Miller has now ruled definitely that a trial period can, of itself, amount to a reasonable adjustment.

So, let’s get a view on this case and what it means for employers. Earlier I spoke on the phone to employment lawyer Amy Hextell and I put it to Amy that, in light of this case, what might appear to be relatively simple decision on suitability of a job role can be much more difficult, and risky: 

Amy Hextell: “Yes, I think so. I think in the case of somebody with a disability it's the case that whilst the person needs to be able to demonstrate that they would be able to do that job, I think that employers need to be cautious about ruling people out simply because they're not ticking a box, or meeting a certain score, or demonstrating that they're able to meet certain criteria in the role. That’s without considering, of course, the question of whether those criteria ought to be adjusted in and of themselves as an adjustment as well, which is a separate point and not one that came up in the case but something that is worth bearing in mind. So, what this case isn't saying is that you absolutely have to slot a disabled person into a role without assessing their competence for the role and it isn't the case that you will always have to offer a trial period. But I think what this case does say, and what I'm now advising employers, is that where somebody perhaps doesn't meet all of the criteria for a role but, based on their experience and skills, could be considered as being worth the chance. What's always worth remembering, and this is what the law says, it's that essentially a reasonable adjustment is in place to remove the disadvantage and the disadvantage in this case was the risk of dismissal and Mr. Miller was ultimately dismissed. Although he didn't meet the essential criteria and he performed quite badly, it was assessed as essentially there was a 50% chance of him succeeding in the trial period and in light of that fact the EAT have decided, well, actually, there was a good chance that he would have succeeded in a trial period and, therefore, that adjustment should have been made. So it's always worth employers bearing mind that you do have to treat disabled people more favourably in this regard and that there is caution to be had about ruling that out where somebody meets, more or less, what you're looking for. I think, the other thing to say about it is that the burden of proof shifts -  and appreciate this is getting slightly technical - but again, the burden of proof shifts in these cases. So where it’s found that the employer did have a provision, criterion, or practice that put the disabled person at a disadvantage, it's then shifted to the employer to show that it would not have been a reasonable adjustment to, in this case, offer a trial period and that's going to be really difficult, particularly if you've not got evidence in support of that.”

Joe Glavina: “The other point that comes out of this case is the importance of employers documenting the reasons for any decisions they make. So record-keeping in these cases is vital?”

Amy Hextell: “I can't emphasise enough, really, what this case demonstrates is the importance of keeping documentary records and evidence in relation to everything you're doing if you've got somebody disabled, and you're considering alternative roles, I think, firstly, you need really clear evidence of what the role is, what the requirements are, and how you're going to assess somebody in respect of that. Again, I think that can be lacking, particularly where it's an internal application process rather than an external recruited role. So, clear criteria, a clear processes that’s followed, and a clear role description and idea of responsibilities. That sets the groundwork, then, because essentially, if you're not going to offer a trial period as a reasonable adjustment you will need to be able to demonstrate that the person didn't meet the criteria that you've set, or there was some concern, they may have met some but, really, there wasn't a good enough chance of a trial period succeeding and you're not going to be able to do that if you haven't got some sort of clear criteria and role description in the first place. The second part, then, I think, is that in considering that applicant you need to have some really, really good documentary evidence. That could be through the interview itself, it could be through any kind of tests that are done as part of the application process or, even if HR aren't with managers in the interview and there aren't comprehensive notes being taken, even if the manager and HR sit down for a few moments afterwards, at some point after the interview, just to go through and document the fact that a trial period has been offered, or considered. If it hasn't, why that hasn't been offered or considered, and then if it has been considered but ruled out, why it has been ruled out. It could quite be as simple as some contemporaneous bullet points, you know, either at the time of the interview or shortly afterwards with HR setting out why a trial period wasn't considered to be appropriate, perhaps because of the fact that the person hasn't got the essential skills, or they didn't particularly show evidence of this in the interview, or that because without that, as I think I mentioned, the burden of proof will often shift in these cases for an employer to demonstrate why it's not reasonable to make the adjustments and although your witnesses may give great oral witness evidence in a tribunal setting, that may be many months, if not years, down the line, and having some contemporaneous documentation there will be really helpful not just in giving that evidence, but also, hoping you've managed to avoid getting in front of a tribunal judge in the first place because the individual is able to see that whilst they're disappointed, there was proper care and consideration given to them and to their suitability for the role.”

That case is a decision of the Employment Appeal Tribunal called Rentokil Initial UK Ltd v Miller. We have included a link to it in the transcript of this programme.

LINKS
- Link to judgment: Rentokil v Miller