Both a tribunal and a subsequent appeal have found in favour of an employee whose employer’s failure to grant a trial period in an alternative role, before proceeding to a capability dismissal, amounted to a failure to fulfil their duty to provide a reasonable adjustment.

In the case, the claimant Mr Miller was a field-based pest controller with Rentokil. 40% of his role required him to work at heights. However, this no longer become possible after he was diagnosed with multiple sclerosis.

Rentokil did look for alternative roles for Mr Miller and he was interviewed for a service administrator role. The selection process included both maths and English assessments. However, he was found to have “irrelevant skills and experience for the role” and he was not offered the post. Rentokil did not consider offering the position on a trial basis or provide retraining.  

Mr Miller was subsequently dismissed through a capability process after the company decided no further reasonable adjustment could enable him to continue in his existing role.

At tribunal, the judge referred to the EHRC (

transferring a disabled worker to fill an existing vacancy is a step which it might be reasonable for employers to have to take as a reasonable adjustment.

The tribunal found that the failure to trial the employee in the role was a failure to undertake a reasonable adjustment and amounted to disability discrimination.

The tribunal found that Mr Miller would have had a level of knowledge that would have been helpful to someone in the post of service administrator. This was because the post provided direct support to the role Mr Miller had been undertaking for 2.5 years.

The case is an interesting reminder for employers that the duty to consider reasonable adjustments goes wider than looking at changes to an employee’s contractual role and includes a requirement to offer trials in alternative roles.

Both a tribunal and a subsequent appeal have found in favour of an employee whose employer’s failure to grant a trial period in an alternative role.

Alternative roles - A reasonable adjustment for disability

How much time and money do you spend on learning and development? How much value do you put on supporting the personal and professional growth of your team?

It’s time to review what developmental activities can do, not only for your people but also for the organisation.

The obvious reason to offer training to your team is to build their skill levels and enable them to undertake their daily duties more competently. Technical training starts from the very second employees join the organisation and we often underestimate the value a thorough induction can add. 

Try not to overload your new starter and always remember that everyone learns at a different pace and in different ways. Educate yourself and your more senior team members on different teaching methods and regularly check in with your new recruit.

This also goes for other technical training that may lead to tickets or qualifications. Don’t assume that everyone is happy and able to sit in a classroom or learn a new skill that’s alien to them. Continuous evaluation and assessment of the process is important.

This is an often overlooked area of professional development, and yet so important when trying to improve the way you work.

Project management, leadership, ISO, the list goes on. Identify what areas will bring the most benefits to the individual and the organisation. Soft skill training shouldn’t be prescribed – it should be agreed upon!

Your team will also benefit from personal skill development, which they are then able to apply at work. Don’t dismiss calls for further education, or additional qualifications in seemingly unrelated areas. Have someone who wants to attend a counselling course? Maybe they can be your new mental health first aider! Someone wants to diversify their career focus? That doesn’t mean they will neglect their day-job or leave. It’s likely they will show appreciation for being supported on a more personal level, which will reflect in their engagement and commitment.

SSG offer a variety of learning and development opportunities you may want to consider for your team. Please contact our customer service team or your consultant for recommendations.

The importance of development

May is mental health awareness month but despite having a better understanding of the dangers of stress in the workplace, we as a nation are still very much affected by stress.

And there is still a misconception of how to identify and deal with stressors at work, with now 78% of workers reporting they would happily throw in the towel if they were exposed to high levels of stress: 

So, considering the impact high employee turnover has on any organisation and its employees, it is more important than ever to have open conversations around stress prevention and take appropriate steps to ensure all team members feel fulfilled, challenged but not pressured to a point of exhaustion.

Discuss with your team what the difference is between stress and pressure. Change the language you use! Being under pressure is not a bad thing and completely normal. It can challenge us in a positive way and make us perform better and lead to better results.

Stress is the negative emotion we feel when pressure is not controlled. The best analogy for this is the Mental Health First Aid England stress container:

Consider sharing this with your team and discussing how we can all take better care of our mental wellbeing and ensure we have a ‘pressure release’ in place.

Rather than having general conversations around how stressful things may be in general, ask your team to be specific and help you risk assess tasks, processes and the working environment. The HSE stress management standard can provide you with the right tools for this process – or simply ask your SSG H&S Consultant!

Don’t forget to keep checking in. Don’t be afraid to mention ‘the S-word’. It’s normal to experience stress and it shouldn’t be taboo to talk about it. Employers are often afraid to open the floodgates by asking. But in this case no news is not good news.

Stress v pressure – the latest figures

Claimant was required to work 11-hour days without access to frequent toilet breaks, despite transport firm agreeing to make reasonable adjustments.

 has ruled that a bus driver with Crohn's disease soiled himself while working because he had to work 11-hour shifts and was denied frequent access to breaks.

His employer, Midland Red South, failed to make reasonable adjustments to the claimant’s shifts, despite an occupational health report from 2016 making clear recommendations about his working requirements. 

The claimant said he suffered a “huge amount of humiliation” following the events.

The judge agreed to withhold the claimant’s name because of the sensitive details discussed in the tribunal. The claimant was awarded almost £29,000 for injury to feelings.

The claimant had worked as a bus driver at the firm for more than 30 years at the Nuneaton depot. He experiences Crohn's disease and in 2016 attended an occupational health meeting to assess his condition. It determined he had a substantial health issue and a report stated that it was a serious condition.

The occupational health report made three recommendations: that he should have a predictable work pattern with an opportunity to have meals three times a day and an opportunity to take his tablets at the same time, regular toilet breaks, and to not work shifts of more than eight hours.

A break in routine could result in a flare-up of his condition, the report said, resulting in an “unpredictable and urgent need” to go to the toilet.

Following the recommendations, his employer agreed to grant him a fixed working pattern. It said every effort would be made not to change the pattern. However, in cases where it was changed, it said it would ensure that his start, finish and break times would be kept regular.

On 22 February, a meeting was held in which suitable shifts were agreed for the claimant and he was told that appropriate shifts would be implemented “within a couple of weeks”.

However, intermittently between April and June 2022, the claimant was asked to work multiple shifts that were longer than the agreed eight hours, with some lasting up to 11 hours. The claimant in some cases asked to work different shifts, but these requests were declined as he was told that it had to be “fair to other drivers” in its allocation of shifts.

From June, he was then asked to work inappropriate shifts of 11 hours again. He raised a grievance on 4 June but did not receive a response until 5 July.

He received the grievance outcome on 2 August, which determined he had been allocated unsuitable shifts and was instead offered shifts that met his requirements. However, these shifts were not implemented until mid-August.

Consequently, the tribunal determined: “We find that the claimant did soil himself as a result of his working unsuitable shifts. The claimant gave evidence to this effect, stating that he had ‘shit himself’ and that his attempts to work the unsuitable shifts resulted in him soiling himself.”

However, his employer denied that he ever soiled himself and its witnesses claimed that no incident of this nature was ever raised with them by the claimant.

The tribunal sided with the claimant on this matter, accepting his claims that “he found it difficult and embarrassing to discuss his condition”, and the tribunal said “it is therefore unsurprising that he chose not to raise these incidents with his supervisor”.

Additionally, the claimant said he found the process of having to continually ask for adjustments “exasperating” and that he felt a “huge amount of humiliation” at having to repeatedly make requests.

Employment judge Routley acknowledged that Midland Red South did not act out of malice, but that it had that “prohibited effect”.

“We have considered the circumstances of the case, in that the unwanted conduct occurred against a backdrop of repeated and ongoing requests by the claimant to have his reasonable adjustments implemented, dating back a number of years.”

They said the claimant was dealing with a “chronic and unpleasant condition that took a considerable amount of effort to manage, and the impact this had on his mental wellbeing”.

“We appreciate that the claimant’s requirements for staff can change and that it needs to be able to operate its business with some degree of flexibility. However, we find that in the event that the respondent needed to change the claimant’s shifts, he should have been assigned an alternative shift that met the three criteria [of the occupational health report],” said Routley.

“This would have alleviated the disadvantage suffered by the claimant, in that he would not then have soiled himself at work.”

They also noted that, as only 10 drivers at the depot required adjustments, management could have taken responsibility for ensuring that the shifts allocated to these 10 drivers met their requirements. 

Consequently, he was awarded £25,000 for injury to feelings, plus £3,819.18 interest.