The importance of considering reasonable adjustments
The recent Employment Appeal Tribunal case of Cairns v The Royal Mail Group Limited considered the issue of reasonable adjustments and discrimination arising from disability following the claimant’s dismissal for ill-health.
Background
The claimant was employed in a delivery role at the respondent’s delivery office in Hendon, London from 1990 until 2018. However, owing to disability following an accident in 2016 he became unable to perform outdoor duties and was given supernumerary restricted indoor duties.
An occupational health report was produced in January 2018 that advised the claimant met the respondent’s criteria for ill-health retirement. In accordance with its policy, a meeting was held in mid-February involving the claimant’s manager, the claimant and his union representative, where a projected future merger with the Mill Hill delivery office was discussed. Following the meeting, the claimant’s manager circulated a memo enquiring if any delivery managers in the area had any suitable vacancies for someone with the claimant’s restrictions. The responses were negative. He also raised the issue of when the merger was expected to take place and was told there was no date decided yet and that the merger would reduce the number of indoor jobs.
The claimant was subsequently retired on ill-health grounds on 28 February 2018. The claimant appealed, which was heard on 2 May 2018 and the appeal was denied.
Employment Tribunal (ET)
The claimant brought a complaint of unfair dismissal and claims under the Equality Act 2010, specifically, discrimination arising from disability (section 15) and failure to comply with the duty to make reasonable adjustments (section 20). A key part of his case was that by the time of his appeal in May 2018, the merger was expected to take place the following month and it would have been a reasonable adjustment to keep him in employment for that short time. Further, the decision to dismiss was not proportionate or justified for the purposes of his section 15 claim.
The ET held that in the absence of an alternative position, the respondent was not required to create a position for the claimant nor was it expected to bump employees out of their job. The ET was satisfied that at the time, there was no relevant alternative employment that the claimant could have done, and so the dismissal was a proportionate means of achieving a legitimate aim, in particular, ensuring the efficient and economic operation of the delivery office.
As to the reasonable adjustment claim, the relevant provision, criterion or practice under the Equality Act 2010 was the requirement for the claimant to work outside as a delivery postman. The claimant could no longer undertake this which clearly put him at a substantial disadvantage. However, the claimant was doing a supernumerary role that had been created temporarily for him, with no alternative jobs available as a reasonable adjustment with or without a merger. Therefore, the reasonable adjustment claim failed as it would be unreasonable to keep the claimant in a supernumerary role “forever”.
The ET also held that there was a potentially fair reason to dismiss for capability, and that whilst it might not be a counsel of perfection, the process followed by the respondent was adequate. Enquiries were made but no vacancies were found to be available, and the merger was not going to occur in the foreseeable future. It was therefore held that it was reasonable of the respondent, based on the information available to them at the time, to dismiss the claimant.
As a result, all three claims were dismissed by the ET.
Employment Appeal Tribunal (EAT)
The claimant appealed to the EAT on four grounds in respect of discrimination arising from disability and failure to comply with the duty to make reasonable adjustments. He did not appeal the unfair dismissal decision.
- Ground one contended that the ET had erred in relation to the discrimination arising from disability complaint because it had failed to treat the decision to dismiss and the decision to reject the claimant’s appeal against dismissal as a composite decision requiring justification. The claimant argued that by the time of his appeal, the merger was imminent, and so it would have been reasonable to continue to employ him until the merger occurred, when a job would have been available. The EAT held however that sufficient findings were made by the ET about this aspect of the case to justify its decision to dismiss the claim.
- Ground two contended that the ET’s decision in respect of both complaints was not Meek-compliant (that is, the ET’s reasons for its decision were inadequate) because it failed to make findings of fact about certain matters which the claimant described as vital evidence. These included that:
- By the time of the claimant’s appeal in May 2018 the merger was at an advanced stage and due to take place just weeks after the appeal;
- As a result of the merger, there would be permanent indoor roles which the claimant could have performed;
- One of these roles had been put aside for the claimant; and
- His manager had accepted in cross-examination that, had he known of the imminent move and the available role, his decision may have been a different one. This was even though he was told of the imminent move at the time of the appeal.
- Ground three challenged the ET’s conclusion that it would not have been reasonable to keep the claimant in a supernumerary role indefinitely. The claimant argued the ET erred by failing to consider whether it would have been a less discriminatory step to keep the claimant in that role for about a month longer in order that he could then take up an indoor position in the newly merged depot rather than to dismiss him.
- Ground four contended that the ET erred in relation to accepting that those performing indoor roles in the merged depot would have to perform outdoor roles from time to time, but failed to consider whether it would be a reasonable adjustment not to require the claimant to do so, taking account of the respondent’s size.
The EAT concluded that the ET erred because it failed to address the relevant circumstances and issues pertinent to the reasonable adjustments and justification questions as matters stood at the appeal stage, particularly by the time the decision to dismiss the appeal was actually made. There were fundamental deficiencies in the ET’s reasons. On that basis, grounds two, three and four of the appeal were upheld.
As a result of the EAT’s judgment, the case has been sent back to a differently constituted ET to decide whether the respondent ought reasonably to have made the adjustments the claimant asked for and/or whether its decision to dismiss the claimant’s appeal against dismissal was justified for the purposes of the discrimination arising from disability claim.
Comment
The EAT’s judgment in this case is a reminder to employers to consider reasonable adjustments and potential disability discrimination implications at all stages of disciplinary proceedings, including when considering an appeal against dismissal. When an appeal is raised, it is important that any factors that contributed to the dismissal are fully reconsidered to determine whether there have been any subsequent developments that may justify overturning the original decision.
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