Employment tribunal and court judgments | March 2024

In the case of Rentokil Initial UK Ltd v Miller, the EAT upheld a ruling that an employer failed to make reasonable adjustments by dismissing a disabled employee instead of offering a trial period for an alternative role.

The Claimant was employed by the Respondent as a pest control technician. He was diagnosed with multiple sclerosis a year later. The Respondent applied various adjustments to the role and his contract which were not effective. After a capability meeting, it was concluded that there were no adjustments that could be made that would enable the Claimant to remain in his current role, which was physically demanding, involving about 40% of his time working on ladders at height.

The Claimant applied for a Service Administrator role with the Respondent but was unsuccessful following capability assessments. The Respondent dismissed the Claimant on the basis that there were no further adjustments that could be made which would have enabled the Claimant to remain in his current role and there were no alternative roles.

Mr Miller claimed failure to make reasonable adjustments, discrimination arising from disability and unfair dismissal.

The ET considered the Respondent’s duty to take steps that are reasonable to avoid disadvantage where a disabled person is placed at a substantial disadvantage by a provision criteria or practice (PCP). The PCP of making staff work in this role placed the Claimant at a disadvantage in comparison to non-disabled people. He was slower at completing his work due to his symptoms and was restricted from working at height.

The Tribunal ruled that the Respondent should have implemented a reasonable adjustment by allowing the Claimant a four-week trial period in the Service Administrator role. Although the Respondent was entitled to have been concerned about the Claimant’s performance in the role following the capability tests, the trial period would have determined whether he could actually do the role.

1. The EAT ruled that here is no principle of law that a trial period in a new role cannot be a reasonable adjustment. As the Claimant would have certainly been dismissed, it was the ET’s duty to consider whether the trail period would have been successful and whether it was reasonable for the employer to consider this. The Tribunal had found a real prospect of the trial being a success and so it was reasonable for the employer to have considered this.
2. The EAT reaffirmed that the Tribunal was correct in shifting the burden of proof onto the Respondent so that they could prove why it was not reasonable to have implemented the trial period and why the role was not suitable. The Claimant had successfully identified the PCP that place him at a substantial disadvantage and had identified the potential adjustment that could have been made (the alternative role). The ET was free to assess whether it would have been reasonable for the Respondent to place the Claimant in a new role on a trial basis.
3. The EAT reaffirmed the ETs findings that there was lack of evidence to show that the Claimant had been treated any differently to other applicants for the alternative role. Considering whether something can be used as a reasonable adjustment should be contrasted to considering if someone should be appointed to a role. The Tribunal did not have to agree with the Respondent’s assessment of the situation.

This case clarifies that a trial period can be used a reasonable adjustment for a disabled employee. Employers should consider their processes to allow for trial periods in positions that might be offered as alternatives to employees when making reasonable adjustments.

Importantly, adjustments must be reasonable and offering an alternative role on a trial basis may not be reasonable in all circumstances e.g., where there are no other roles to accommodate a particular disability. Where dismissal is a very possible outcome, detailed evidence should be gathered by the employer to show that alternative roles (and trial periods) have been considered alongside the prospects of the employee succeeding at the role and passing the trial.

In the case of Hilton Foods Solutions Ltd (Respondent) v Wright, the EAT considered whether a tribunal had erred when it refused to strike out an employee’s claim for automatic unfair dismissal for having sought to take parental leave despite the employee not having complied with the notice requirements set out in the Maternity and Parental Leave etc Regulations 1999 (MPL Regulations).

Employers may have their own schemes for implementing parental leave otherwise the statutory scheme set out in the MPL Regulations will apply. An employee must give notice and specify the exact beginning an end date of the leave, amongst other obligations. A tribunal may find that an employee was unfairly dismissed if the reason is that they ‘took or sought to take parental leave’ (Reg 20 MPL Regulations).

The Claimant was employed as a supply Chain Manager by the Respondent. Towards the end of his employment, he had informal discussions with his employer about taking unpaid parental leave and HR told him that a written request would need to be submitted 21 days before the date of leave. Shortly after another meeting to discuss the leave process, he was dismissed for redundancy. The Claimant believed he was being dismissed for attempting to take parental leave and made a claim.

The Respondent applied to strike out the claim on the basis that it had no reasonable prospect of success as the Claimant had not followed the MPL Regulations and could not have sought parental leave as a matter of law. The strike out application was rejected, and the Respondent appealed.

The appeal was dismissed.

• On a literal interpretation of the MPL Regulations, use of the word ‘sought’ to take parental leave does not necessarily mean that there is an absolute requirement for the employee to use the prescribed notice steps.
• If Parliament wanted to only protect those against dismissal who followed the prescribed notice system, they would not have created two concepts for those who have ‘sought’ to take parental leave and an employee who is able to take leave because the relevant notice has been given.
• If the Respondent’s arguments were correct, an employee’s clear formal request to their employer e.g., through a written email, would not offer them protection from dismissal as the formal process was not followed.

Employers should be mindful that employees will be protected from dismissal even where the formal requirements of giving notice for parental leave have not been met. This applies whether there is a notice period set out in a company policy or the default statutory scheme.