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Using a trial period to determine if a role is suitable

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Using a trial period to determine whether a role is a suitable alternative in an ill health capability process is a reasonable adjustment that Employer’s should implement before taking a decision to dismiss Rentokil Initial UK Ltd v Miller [2024] EAT 37

The Claimant worked as a pest control technician and was diagnosed with multiple sclerosis in March 2017. The diagnosis and impact of his multiple sclerosis meant that he was unable to work in the role as he could not work at heights (around 40% of the role).

Over the following months, various modifications were made to his working arrangements and terms and conditions of employment, seeking to mitigate the impacts of his disability on his ability to continue in that role. At the end of 2018, Rentokil concluded that there was no viable way in which Mr Miller could continue in the same role due to the impact of, and risks posed by, his disability. He was sent home, on full pay, and Rentokil began to explore possibilities for him to move into a different role.

In February 2019, Mr Miller applied for a service administrator role (two were available).  All candidates for roles at Rentokil have to take maths and spelling assessments. He scored 16/30 in the verbal usage test and 7/20 in the maths test. After an interview, the recruiting manager concluded that Mr Miller had irrelevant skills and experience for the role and did not have much experience of using Excel. He was not offered the role. There was no consideration of a trial period or any retraining.

At a capability meeting in March 2019, Rentokil concluded that no adjustments could be made that would enable him to remain in his field role and, as there were no other suitable alternative roles, he was dismissed. His appeal against the decision was unsuccessful.

The tribunal held that Mr Miller was entitled to be treated more favourably than other candidates and it would have been a reasonable adjustment for Rentokil to transfer Mr Miller into the service administrator role for a four-week trial period. This ruling was upheld by the Employment Appeals Tribunal and his other claims for discrimination arising from disability and unfair dismissal were also successful.

The EAT ruling therefore clearly demonstrates that a trial period should be used as a reasonable adjustment and not as just a tool for the employer – the trial period is a reasonable adjustment in its own right.

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