Reasonable Adjustments in the workplace

The 2024 Employment Appeal Tribunal case of Rentokil Initial UK Ltd v Miller (Rentokil) highlights the efforts employers are required to make to meet the threshold required by the Tribunals to demonstrate that they have made reasonable adjustments to accommodate a disabled worker.

In Rentokil, the claimant, Mr Miller, was employed by Rentokil (the respondent) as a pest control technician. After Mr Miller was diagnosed with multiple sclerosis, his employer adjusted his working arrangements to mitigate the impact of his disability on his ability to work in his role. In 2019, Rentokil concluded that he could not continue working in his role and started exploring the possibility of moving him to a different role. Mr Miller subsequently applied for a service administrator role. However, his application was unsuccessful. His employer considered that he was not suitably qualified for the role, and he was therefore dismissed from his role as a pest control technician.

Mr Miller brought a claim for failure to make reasonable adjustments and discrimination arising from a disability under the Equality Act 2010. The Employment Tribunal and The Employment Appeal Tribunal (EAT) found that Rentokil should have given Mr Miller the service administrator role on a trial period and that doing so would have been a reasonable adjustment. The EAT clarified that in arriving at that decision, Rentokil should have considered whether Mr Miller met the essential requirements of the role in terms of skills, qualification, knowledge, experience, or otherwise. In this case, although Mr Miller would have required some training for the service administrator role, the role was a support role to his field role for which he had already been doing some administrative functions. For this reason, Mr Miller would have been able to demonstrate he had relevant experience for the new role and on this basis, it would have been reasonable to offer Mr Miller a trial period in the service administrator role to avoid the disadvantage.

Requirements under the Equality Act 2010
The legal duty to make reasonable adjustments comes with three separate requirements:

Where a rule is applied to everyone, but a disabled person is placed at a disadvantage in complying with the rule compared to those who are not disabled as a result of their disability, an employer is required to take reasonable steps to avoid the disadvantage. Where this relates to the provision of information, reasonable steps include taking steps to ensure the information is provided in an accessible format.
Where a physical feature puts a disabled person at a disadvantage, an employer is required to take reasonable steps to avoid the disadvantage. This may include removing the physical feature, changing it or providing a reasonable means of avoiding it.

Where a disabled person would be put at a substantial disadvantage at work and/or with accessing work without auxiliary aids such as adapted screens and keyboards in comparison with persons who are not disabled, an employer is obligated to take reasonable steps to provide the auxiliary aid. Where the disadvantage relates to the provision of information, reasonable steps should be taken ensure the information is provided in an accessible format.
Employment businesses supplying temporary agency workers to their clients are also subject to this duty and must co-operate with their clients to ensure that adequate adjustments are put in place at the client’s site. An employer that is subject to the duty to make reasonable adjustments cannot require a disabled person to pay for the adjustments and a failure to make these adjustments will be unlawful disability discrimination if an employer cannot justify these failures by showing that the decision not to make the adjustments was made because doing so would affect its ability to meet some of its aims as a business.

Disability under the Equality Act 2010
A disability is a long-term health condition which has an impact on a person’s ability to do daily activities. A long-term mental or physical health condition is a condition that has lasted either 12 months or is likely to last a further 12 months. This means that it is possible for conditions that would generally be considered common to come within the legal definition of a disability. An example of this could be a worker who has high blood pressure but takes medication which causes side effects such as dizziness and fainting spells. The high blood pressure could be considered a disability if it is long term as the fainting and dizziness are likely to impact the worker’s ability to do daily activities and they must plan their life around the side effects of their medication.

There are some health conditions that automatically come within the definition of disability. These include cancer, HIV, multiple sclerosis (MS) and a visual impairment if someone is certified as blind, severely sight impaired, sight impaired or partially sighted. These conditions automatically trigger a duty to make reasonable adjustments and unfavourable treatment because of anything related to these conditions is highly likely to be discriminatory.

When does the duty to make adjustments apply?
There is a common misconception that if a worker/work-seeker does not disclose their disability at the start of employment, the employer has no obligations towards a disabled employee; this is not the case. The duty to make reasonable adjustments is triggered when an employer has actual or constructive knowledge of a disability. Actual knowledge is usually communicated directly by the worker or through a fit note and/or occupational health report confirming the condition. The duty is also triggered when an employer has knowledge that could lead them reasonably determining that a worker has a disability; this is known as constructive knowledge. When an employer has constructive knowledge, this places a duty on them to further explore the information provided to determine whether the condition is likely to be a disability and what if any adjustments could be put in place.

What are the risks of failing to make reasonable adjustments?
Workers/work-seekers who are subject to a failure to make reasonable adjustments can bring claims for disability discrimination in the Employment Tribunal. The Equality Act 2010 sets out a time limit of three months for bringing a claim against a prospective, current or former employer who has carried out a discriminatory act. However, the Employment Tribunal has discretion to extend that time limit if it believes it is ‘just and equitable’ to do so.

Discrimination claims place recruitment businesses at risk of significant reputational damage and financial losses. This is because litigation in discrimination claims tends to be lengthy resulting in high legal costs and employment tribunal judgments are publicly available on the government website.

Additionally, successful claimants in discrimination claims can be awarded compensation for loss of earnings as a result of a discriminatory act, injury to feelings and compensation for any mental or physical injury suffered because of the discriminatory act.

Credit:REC