The importance of considering redeployment as an alternative to dismissal

Background

The claimant, Mr Bugden, was employed by the Royal Mail Group Limited (the “Respondent”) from August 1994 until December 2019 as an operational postal grade worker. Mr Bugden had 32 periods of absence, amounting to 297 days in total, between 2015 and 2019. Some of those absences were related to long-term medical conditions, however many absences were not related to such conditions.

Mr Bugden was dismissed with notice following application of the Respondent’s attendance management policy due to the regular and substantial periods of absence between 2015 and 2019.

The Employment Tribunal

Mr Bugden subsequently brought Employment Tribunal claims, contending that his dismissal was unfair and that he had been subject to disability discrimination. Mr Bugden claimed that the Respondent did not make reasonable adjustments to accommodate his disabilities.

It was found by the Employment Tribunal that Mr Bugden was disabled by reason of: (1) anxiety and depression, (2) visual migraines (3) musculoskeletal disorders and (4) bladder issues.

The key findings of the Employment Tribunal were:

• Discounting disability-related absences in this case would not have been a reasonable adjustment to make;
• In any event, Mr Bugden would have triggered the attendance management policy as a result of his repeated non-disability-related absences; and
• In view of the requirements of the attendance management policy, the decision to dismiss Mr Bugden fell within the band or range of reasonable responses.

In light of the above findings, the Employment Tribunal dismissed Mr Bugden’s claims. Mr Bugden then appealed to the Employment Appeal Tribunal on the following grounds:

Ground 1: That the Employment Tribunal erred in law when dismissing the claim for breach of the duty to make reasonable adjustments, by failing to consider the possibility of redeployment as a reasonable adjustment. This should have been raised with the parties by the Employment Judge.

Ground 3: That the Employment Tribunal erred in law when dismissing the claim for unfair dismissal, by failing to take into account the potential for redeployment as an alternative to dismissal when determining whether the dismissal was fair.

The Employment Appeal Tribunal (EAT)

The appeal was allowed in part.

Ground 1

Mr Bugden’s counsel contended that disability-related absences had arisen, in part, due to the actions of Mr Bugden’s manager, and that it was specifically highlighted in the ET1 document that stress and anxiety levels were exacerbated by Mr Bugden’s manager.

It was further contended by Mr Budgen’s counsel that the issue of redeployment “shouted out” from the material and that the Employment Tribunal judge ought to have raised the question as to whether redeployment would have been a potential reasonable adjustment.

The EAT disagreed with these arguments. The EAT found that absences resulting from Mr Bugden’s mental health were only part of the overall picture in terms of his disability-related absences. There were numerous disability related absences unrelated to his mental health.

The EAT outlined that redeployment was not suggested by Mr Bugden, nor was it mentioned in any occupational health reports. The EAT agreed with the findings of the Court in Project Management Institute v Latif [2007] 5 WLUK 216 where it was found that it will be an exceptional case and only in certain circumstances will the Employment Tribunal be expected to raise a particular adjustment with the parties for itself. The EAT found that this was no such case and therefore ground 1 of the appeal was dismissed.

Ground 3

Mr Bugden’s counsel submitted that consideration of the possibility of redeployment to another role, as an alternative to dismissal, was such a familiar point in relation to a claim of unfair dismissal arising from ill-health absence that the Employment Judge should have addressed it even though it had not been raised by the parties.

It was further highlighted by Mr Bugden’s counsel:

• That the ACAS Guide to Discipline and Grievances at Work outlines that the availability of suitable alternative work where appropriate, should be considered;
• The Respondent’s attendance management policy stated: “Where an employee’s capability is impacted by their health to the extent that they can no longer undertake their normal role, Royal Mail Group will work with the employee to identify a suitable alternative role wherever possible.”
• The Respondent’s attendance management policy also stated that when employees are returning from repeated absences due to an ongoing health condition, redeployment will be considered.

In response, the Respondent’s counsel argued that:

• The Employment Tribunal Judge was not required to leave every stone unturned; and
• The attendance management policy passages relied on related to employees who could no longer return to their role, whereas in this case Mr Bugden could perform his role, the dismissal was based on poor attendance.

The EAT found in Mr Bugden’s favour, rejecting the notion that the question of redeployment is confined to ill-health cases where employees could no longer carry out their role. The following passage summarises the EAT’s findings:

(paraphrased from the judgment)

The claim for unfair dismissal was remitted to the Employment Tribunal for further consideration and is limited to the issue that arises under Ground 3 of the appeal.

What does Bugden v The Royal Mail Group Limited mean for employers?

Where an employee is disabled, as defined in the Equality Act 2010, employers are under a duty to make reasonable adjustments for the disabled employee to ensure they are not placed at a disadvantage by one of the following:

• An employer’s provision, criterion or practice (PCP).
• A physical feature of the employer’s premises.
• An employer’s failure to provide an auxiliary aid.

In this case, the requirement to attend for work in accordance with the Respondent’s attendance management policy / attendance standards was a PCP and therefore was in the remit of the duty to make reasonable adjustments.

The Equality Act 2010 Employment Statutory Code of Practice (paragraph 6.33) provides a non-exhaustive list of possible adjustments that might be taken by employers. Paragraph 6.28 of the Code sets out some of the factors which might be taken into account when deciding what is a reasonable adjustment/step for an employer to take.

Generally, employers ought to consider the possibility of redeploying an employee into a different role (if suitable) whenever the employee is having issues with carrying out their current role. This is especially pertinent when that employee is disabled, as redeployment to an alternative role may be considered a reasonable adjustment to make.

Redeployment in the context of making a reasonable adjustment is something that many employers are familiar with. However, Bugden also illustrates the importance of considering redeployment in the context of the fairness of a dismissal. Clearly, when an organisation’s own policy provides for the option of redeployment, as it did in this case, then it will be important to consider that option or risk a finding of unfair dismissal.