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The duty to make reasonable adjustments. Yes, it can sometimes be a pest – but it is an important legal duty for employers to acknowledge

March 19, 2024

Most employers will be either loosely or firmly aware of the legal concept of reasonable adjustments. By way of recap, an employer which operates a PCP (provision, criteria or practice) which has the effect of placing a disabled employee at a substantial disadvantage compared with non-disabled persons, is under a legal duty to make reasonable adjustments to avoid that disadvantage. The duty also applies if a physical feature of the workplace gives rise to a disadvantage, or if the employee faces a disadvantage which could be resolved by the provision of an auxiliary aid. 

The duty to make reasonable adjustments will only arise if the employer knows, or ought reasonably to have known of the disability and the likelihood of disadvantage. It is not necessary, in order for the duty to be triggered, for the adjustment to be sure to remove the disadvantage. It is sufficient if the employee shows that the adjustment might work. 

Common scenarios

While the duty to make reasonable adjustments covers a whole host of situations and workplace scenarios, it is particularly common in cases where a disabled employee faces challenges with attendance at work, or where their medical condition makes performance of certain duties problematic.

Redeployment?

Where an employee is not capable of fulfilling their duties, it is well established, in the context of unfair dismissal, that, before a fair dismissal can arise, the employer must consider whether there is any suitable alternative employment which the employee could do. This notion of finding alternative work (or redeployment) for an employee who is unable to perform their original job is also very relevant to reasonable adjustments.

Where does the employer stand if there is an alternative role but there is doubt about the employee’s suitability? Previous case law had established that it would not be a reasonable adjustment to redeploy an employee who was “not appointable” to the alternative role. That is fine in a clear case. 

What about a less clear case? 

The case

In the recent case of Rentokil Initial UK Ltd v Miller, Mr Miller worked as a field based pest controller. This is a physically demanding role. Nearly half of his time involved working at height and up ladders. In 2017, less than a year into his employment, Mr Miller developed multiple sclerosis. Rentokil made various modifications in the intervening months in a bid to mitigate the impact of his disability. However, his employer ultimately concluded that he was not capable to continue in the role due to the impact of his disability and the risks arising from it. 

Mr Miller applied for an admin role. He undertook a maths test (scoring 7/20) and a language test (scoring 16/30). There were two admin roles but Mr Miller was offered neither as it was deemed that his skills were irrelevant and he had limited experience of using Excel. He was subsequently dismissed and brought tribunal claims including a claim for failure to make reasonable adjustments. 

The decision

It was determined that a reasonable adjustment would have been to prioritise Mr Miller over other candidates, and allow him a 4-week trial in the administrator role. Relevant factors included that the admin role was more junior and Mr Miller would be supporting the role which he previously worked in (thus had relevant experience). He could have been trained on Excel, and despite his low scores in the tests, the tribunal found that in practice in his original job, he would have done tasks involving numbers and language use. The evidence suggested that Rentokil focused on whether Mr Miller should be appointed to the role, rather than whether he could do it. The employer had thus failed to make reasonable adjustments. 

Take aways

Employers should always explore whether suitable alternative employment exists before dismissing on grounds of capability. While this case does not specify that a trial period should be offered in every case, it does show that a failure to consider a trial period could lead to a claim. If you are faced with a situation where you have a question about a person’s suitability for alternative employment, be sure to document the reasons with evidence why a trial was not deemed suitable. 

If you have any questions on this on any other area of Employment law, please get in touch with Blackadders Employment Team, working in Aberdeen, Dundee, Edinburgh, Glasgow and across Scotland.

Nicola Burns

Nicola Burns

Director of Operations

Marketing Team

+44 1382 342217

The opinions expressed in this site are of the author(s) only and do not necessarily represent the opinions of Blackadders LLP.

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