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Disability discrimination: Reasonable adjustments
Adrian Fryer
Where an employer knows (or ought to know) an employee is disabled, the duty to make reasonable adjustments applies. Under Equality Act 2010, employers must make adjustments to remove any substantial disadvantage that the employee would otherwise face at work because of their disability. The employer only has to make such adjustments as are reasonable.
In the recent case of Miller v Rentokil, the Employment Appeal Tribunal looked at whether it was a reasonable adjustment to place an employee in an alternative role (when their disability meant that they could no longer perform their original role) – even though the employee had been unsuccessful in their application for that alternative role.
The Claimant worked as a field-based pest controller. After being diagnosed with multiple sclerosis, he could no longer work in this role. He couldn’t work at heights (which made up around 40% of his role) and could only work slowly.
The Respondent looked at other jobs in the business and the Claimant applied for an administrator role. He was unsuccessful following an interview process and was dismissed. The Claimant claimed that failing to place him in the administrator role on a trial basis amounted to a failure to make reasonable adjustments under Equality Act 2010. The tribunal upheld his claim.
On appeal, the EAT agreed with the tribunal. The Claimant was placed at a substantial disadvantage because of his disability – he could no longer carry out his duties in his field-based role. Moving the Claimant to an alternative role was a reasonable adjustment which would remove that disadvantage. The Claimant had shown that the alternative role was potentially appropriate and suitable. The burden then passed to the Respondent to show that it was not reasonable to have put the employee into that role.
The tribunal had been entitled to conclude that the Respondent had not discharged this burden. Whilst they should and did take the Respondent’s assessment of the Claimant’s suitability for this role into account, they did not have to agree with it. They had permissibly reached their own objective position taking account of the suitability of the role, whether the employee met its essential requirements and the likelihood of a successful trial.
Where an alternative role is an option which will avoid a substantial disadvantage to a disabled employee, employers need to tread very carefully if they choose not to offer it. Employers need to be able to put forward compelling arguments why the alternative role is not suitable. Allowing the employee to take-on the role on a trial basis is always a good idea. If the role is unsuitable, then this will show up on the trial. If the role is suitable, then the adjustment is a reasonable one and the employer should make it permanent.