Trial period for a reasonable adjustment with a template

Offer of a Trial Period as a Reasonable Adjustment Under the Equality Act 2010

The duty to make reasonable adjustments under section 20 of the Equality Act 2010 requires employers to take proactive steps to remove substantial disadvantages faced by disabled employees in the workplace. Recent case law, including Rentokil Initial UK Ltd v Miller[2024] EAT 37, has clarified that offering a trial period in a new or adjusted role can constitute a reasonable adjustment in itself, even if the employee’s suitability for the role is uncertain. This report synthesizes legal principles, practical guidance, and template frameworks to outline how employers can structure trial period offers to comply with statutory obligations while balancing operational needs.

Legal Framework for Trial Periods as Reasonable Adjustments

The Duty to Make Reasonable Adjustments

Under the Equality Act 2010, employers must make adjustments to working conditions, practices, or physical environments to alleviate disadvantages experienced by disabled employees6 9. This duty arises when an employer knows, or ought reasonably to know, that an employee is disabled and faces substantial disadvantages compared to non-disabled colleagues14. The Rentokil case reaffirmed that adjustments need not guarantee success but must offer a real prospect of mitigating the disadvantage7 10. For example, in Rentokil, offering a trial period in a less physically demanding administrative role—despite the employee’s poor performance in recruitment tests—was deemed reasonable due to the 50% likelihood of retention1 6.

Trial Periods as a Distinct Adjustment

Historically, employers treated trial periods as investigatory tools rather than standalone adjustments. However, the Employment Appeal Tribunal (EAT) in Rentokil clarified that a trial period can itself qualify as a reasonable adjustment under s20(3) of the Act3 6. The critical factor is whether the trial provides a meaningful opportunity to assess the employee’s ability to perform the role with support, even if success is uncertain10 13. Tribunals will evaluate:

• The suitability of the role for the employee’s capabilities.
• The proportionality of the adjustment relative to the employer’s resources.
• Whether the trial offers a real chance of avoiding dismissal or other disadvantages7 9.

Key Components of a Trial Period Offer Template

Below is a structured template for employers to propose a trial period as a reasonable adjustment, informed by case law and guidance from Acas, CIPD, and disability advocacy organizations4 5 14.

Template: Offer of Trial Period as a Reasonable Adjustment

[Employer’s Letterhead]
[Date]

Dear [Employee’s Name],

Subject: Proposal for Trial Period in [Role Title] as a Reasonable Adjustment

We are writing to formally propose a trial period in the role of [Role Title] as a reasonable adjustment under section 20 of the Equality Act 2010. This proposal follows our discussions on [date] about the challenges you are facing in your current role due to your disability and aims to provide a fair opportunity to explore a sustainable workplace arrangement.

1. Purpose of the Trial Period

The trial period is designed to:

• Assess your ability to perform the [Role Title] role with agreed adjustments.
• Identify further support or modifications needed to enable you to work effectively.
• Evaluate whether this role offers a long-term solution to the disadvantages identified in your current position.

2. Trial Period Details

• Duration: [X weeks/months], commencing on [start date] and concluding on [end date].
• Role Responsibilities: A detailed outline of duties is attached, with adjustments including [list specific adjustments, e.g., reduced ladder use, flexible hours, software tools].
• Support Measures:
  • [Training programs, mentorship, or equipment].
  • Regular feedback sessions with [manager/HR representative] every [frequency].

3. Review Process

• A mid-trial review will occur on [date] to discuss progress and interim adjustments.
• A final review on [date] will determine whether the role can be made permanent, extended, or if alternative adjustments are needed.

4. Terms and Conditions

• Your employment terms (e.g., pay, benefits) will remain unchanged during the trial.
• If the trial is successful, a permanent contract for the role will be issued.
• If unsuccessful, we will explore other reasonable adjustments or roles within the organization6 10.

5. Confidentiality

This arrangement will be treated confidentially, with details shared only with individuals directly involved in your support.

Please confirm your agreement to these terms by signing below. We encourage you to contact [HR contact] by [date] to discuss any questions or concerns.

Yours sincerely,
[Manager’s Name]
[Job Title]

Employee’s Signature: ___________________              Date: _______________

Practical Considerations for Employers

1. Objective Assessment of Suitability

Tribunals emphasize that employers must objectively evaluate roles for trial periods, even if internal assessments suggest the employee is unsuitable9 13. For instance, in Rentokil, the employee’s transferable skills from his technician role (e.g., report writing) were deemed sufficient to justify a trial in an administrative position, despite poor test scores1 7. Employers should:

• Document transferable skills and experience.
• Consider whether recruitment processes (e.g., written tests) disadvantage disabled applicants unnecessarily1 14.

2. Proportionality and Resources

The Equality Act requires adjustments to be “reasonable,” considering factors like cost, disruption, and the employer’s size11. A small business may argue that a trial period is unaffordable, whereas a larger employer would struggle to justify such a claim11.

3. Trial Period Best Practices

• Clear Communication: Define success criteria, feedback mechanisms, and review dates upfront5 14.
• Flexibility: Be open to extending the trial or modifying adjustments based on interim reviews8 11.
• Documentation: Keep records of all discussions, adjustments, and outcomes to defend against potential claims5 10.

Risks of Non-Compliance

Failing to consider trial periods as adjustments can lead to successful discrimination claims. In Rentokil, the employer’s refusal to offer a trial—coupled with inadequate evidence about the employee’s unsuitability—resulted in findings of disability discrimination and unfair dismissal1 9. Tribunals may also penalize employers who:

• Rely solely on recruitment processes not tailored to disabled employees.
• Dismiss employees without exploring available vacancies6 7.

Conclusion

The Rentokil decision underscores that trial periods are not mere investigatory tools but viable adjustments under the Equality Act. Employers should adopt structured, empathetic approaches to trial periods, ensuring they are tailored to individual needs and objectively assessed. The template provided aligns with legal requirements and practical realities, offering a balanced framework to support disabled employees while safeguarding organizational interests. Regular training for HR teams and managers on these obligations will further mitigate legal risks and foster inclusive workplaces.

Future developments may see tribunals scrutinizing employers’ use of trial periods more closely, particularly where dismissal remains the only alternative. Proactive employers will benefit from embedding trial periods into their reasonable adjustment policies, ensuring compliance and demonstrating commitment to disability inclusion10 13.

Citations:

1. https://www.3pb.co.uk/content/uploads/Trial-Periods-And-The-Burden-Of-Proof-by-Stephen-Wyeth.pdf
2. https://www.autism.org.uk/advice-and-guidance/topics/employment/template-letters/template-letter-request-reasonable-adjustments-job
3. https://www.rollits.com/news/articles/reasonable-adjustments-offering-a-trial-period-in-a-different-role/
4. https://www.acas.org.uk/reasonable-adjustment-confirmation-template
5. https://www.hr-inform.co.uk/templates-and-tools/reasonable-adjustments
6. https://www.blakemorgan.co.uk/a-trial-period-in-a-new-role-can-be-a-reasonable-adjustment/
7. https://www.shrm.org/mena/topics-tools/employment-law-compliance/uk–could-a-trial-period-in-a-new-role-be-a-reasonable-adjustmen
8. https://workingfamilies.org.uk/articles/flexible-working-a-guide-for-employees/
9. https://www.vwv.co.uk/news-and-events/blog/employment-law-brief/duty-reasonable-adjustments-trial-period-new-role
10. https://www.mfmac.com/insights/employment/trial-period-may-be-a-reasonable-adjustment/
11. https://www.peoplemanagement.co.uk/article/1899439/when-reasonable-adjustments-become-unreasonable
12. https://workingfamilies.org.uk/articles/sample-letter-to-request-flexible-working/
13. https://www.birketts.co.uk/legal-update/can-a-trial-period-be-a-reasonable-adjustment/
14. https://www.scope.org.uk/advice-and-support/reasonable-adjustments-at-work
15. https://www.toynbeehall.org.uk/wp-content/uploads/2021/08/Draft-Reasonable-Adjustments-letter.pdf
16. https://www.crosslandsolicitors.com/site/media/Rentokil-Initial-UK-Ltd-v-Miller-trial-periods
17. https://www.acas.org.uk/example-flexible-working-policy-template
18. https://www.acas.org.uk/reasonable-adjustment-request-template
19. https://app.croneri.co.uk/topics/disability-discrimination/how-comply-duty-make-reasonable-adjustments
20. https://www.ellisonssolicitors.com/?p=20329
21. https://www.tlt.com/insights-and-events/insight/redeployment-trial-periods-and-disabled-employees/
22. https://www.autismplus-employmentservices.co.uk/resources/example-reasonable-adjustments/
23. https://www.equalityni.org/Footer-Links/News/Employers-Service-Providers/What-does-%E2%80%98reasonable%E2%80%99-mean-in-%E2%80%98reasonable-adjustm
24. https://lochassociates.co.uk/navigating-reasonable-adjustments-trial-periods-and-redeployment/
25. https://www.essex.ac.uk/-/media/documents/directories/human-resources/uecs/uecs-ltd-flexible-working-policy.pdf
26. https://www.dpt.nhs.uk/download/5kP8A7I7pg
27. https://www.acas.org.uk/templates-for-employers
28. https://app.croneri.co.uk/topics/disability-discrimination-test-content/resources?topic=3805
29. https://www.rvc.ac.uk/Media/Default/About/Human%20Resources/Documents/flexible-working-guide_April%202024-1.pdf
30. https://www.hr-inform.co.uk/node/15548
31. https://www.nhsgoldenjubilee.co.uk/application/files/3217/2829/7212/Reasonable_Adjustment_Policy_Golden_Jubilee.pdf
32. https://attwells.com/supporting-mental-health-in-the-workplace-a-guide-to-reasonable-adjustments-and-best-practices/
33. https://colleagues.coop.co.uk/disability-redeployment-policy
34. https://www.acas.org.uk/reasonable-adjustments/asking-for-reasonable-adjustments
35. https://www.stammeringlaw.org.uk/employment/reasonable-adjustments-employment/reasonable-adjustment-rules-employment/
36. https://www.autism.org.uk/advice-and-guidance/topics/employment/what-are-reasonable-adjustments-and-when-can-they
37. https://www.equalityni.org/reasonableadjustments
38. https://www.employmentlawworldview.com/when-making-reasonable-adjustments-is-a-real-trial-uk/
39. https://www.farrer.co.uk/news-and-insights/blogs/building-inclusive-workplaces-reasonable-adjustments/