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Get in touch 0117 325 0526
Facts: The employee was a pest control technician. He was diagnosed with multiple sclerosis and various adjustments to his working arrangements and terms and conditions were made to reduce the impact his disability had on his role. He couldn’t work at heights (because of the risk of falling) and could only work slowly. However, the company eventually concluded there was no viable way for him to continue in this job. It therefore explored alternative roles.
The employee applied for an administrator role. However, he was unsuccessful following an interview process and was dismissed.
The employee claimed unfair dismissal and disability discrimination. He claimed that failing to place him in the administrator role – at least on a trial basis – amounted to a failure to make reasonable adjustments under Equality Act 2010.
Tribunal decision: The Tribunal upheld the employee’s claim and the employer appealed.
EAT decision: The EAT dismissed the appeal.
It agreed with the Tribunal that the employee was placed at a substantial disadvantage because of his disability (he could no longer carry out his duties in his field-based role). The alternative role could have removed that disadvantage and it would have been reasonable for the employer to offer the employee a trial period in that role.
The employee was entitled to be treated more favourably than external candidates and the role considered as a reasonable adjustment, rather than a normal competitive recruitment process. By providing the employee a trial period, he would have had the opportunity to show that that he could perform the role more successfully than suggested during the recruitment process. There was no rule of law that it must be certain, or likely to some particular degree, that he would be successful in that trial period before offering it.
Implications:
It can be a reasonable adjustment for an employer to offer a disabled employee a trial period in a new role. Therefore employers should consider offering trial period(s) in alternative role(s) to disabled employees as part of the capability process when making reasonable adjustments.
If an employer is in doubt about whether it would be reasonable to offer a trial period in a particular role, it could be helpful to ask occupational health their opinion on this (following consultation with the employee). If an employer decides not to offer a trial period, make sure a record of the reasons for this is kept.
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