A recent Employment Appeal Tribunal case (whose judgments are generally binding in Great Britain) concerned an employee who was disabled following a diagnosis of multiple sclerosis, which developed to such a stage that he was unable to continue in his field role as a pest control technician, even after adjustments and modifications. Due to the physical nature of his role, his employer concluded there were no further adjustments that would help him continue in the role. The employee was suspended from work on full pay on capability grounds. The employee applied for an alternative administrative role but was rejected due to low scoring on a verbal usage and Excel test and apparently unsuitable experience for an office-based role. The employee brought a claim arguing that by not appointing him to the new role, his employer had failed to make a reasonable adjustment to his employment in accordance with the legal requirement for employers to implement reasonable adjustments on account of disability.
The Employment Appeal upheld the employment tribunals’ findings that the employer had failed to make the reasonable adjustment of giving the employee a four-week trial period in the service administrator role. This was based on the tribunal’s findings that the administrative role was a support role to what he had been doing for over two and a half years. Knowledge of the substantive role would be expected to be helpful to someone supporting that role. In particular, the Employment Appeal Tribunal rejected the employer’s argument that a trial period cannot be a reasonable adjustment. Where, as in this case, the employee is at almost certain risk of dismissal, it is then open to the tribunal to consider whether the proposed trial period in another particular role would remove the risk of dismissal, or had sufficient prospects of avoiding the dismissal, such that it was reasonable for the employer to be expected to take that step. Putting the employee into the service administrator role on a trial basis would have not merely involved delaying the date of his inevitable dismissal by four weeks but there was a reasonable chance he might have succeed in the role, thus avoiding his dismissal altogether.
An employment tribunal is not bound in every case where the employee is facing dismissal due to a disability, to conclude that the employer ought to have given them a trial period in another role. Whether or not an employer would be expected to do depends on all the circumstances, including the suitability of the role, and the prospects of the employee succeeding at the role and passing any probationary period. In this case, the manager’s decision not to offer him the administrative role was based purely on the interview and tests, without the benefit of knowledge of how the employee had performed in his current role. A trial period in this case could have addressed any concerns on his poor performance in the tests and given him an opportunity to undertake some training in Excel.
Employment Appeal judgments are binding in Great Britain (and persuasive in Northern Ireland).