Must an employer consider redeployment to achieve a fair dismissal?
Yes, held the Employment Appeal Tribunal (EAT) in Bugden v Royal Mail Group Ltd.
Background
Mr Bugden was an employee of Royal Mail Group Ltd. He had significant health-related absences (297 days over 4 years) and, after an offer to reduce his hours was refused by Mr Bugden, he was dismissed. Mr Bugden brought claims for unfair dismissal and disability discrimination – failure to make reasonable adjustments.
The Employment Tribunal (ET) dismissed his claims.
Mr Bugden appealed to the EAT on points he had not raised in his original tribunal claim or at the hearing.
Those points were:
- the ET ought to have considered if moving him to another role (redeploying) could have been a reasonable adjustment for Royal Mail to make (on the basis one of his impairments was worsened by his manager’s behaviour); and
- the ET’s failure to consider whether redeployment impacted the fairness of the dismissal itself.
Law
Section 98 of the Employment Rights Act provides, materially:
(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show-
(a) the reason (or, if more than one, the principal reason) for the dismissal…
This can include a reason which
(2) …(a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do.
Also,
(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) -
(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and
(b) shall be determined in accordance with equity and the substantial merits of the case.
Decision
The EAT dismissed the appeal relating to reasonable adjustments as it found the ET had not erred in law in not considering the possibility of redeployment as a reasonable adjustment, where it hadn’t been raised in the claim anyway.
However, the EAT ruled that given redeployment is relevant to the assessment of the “range of reasonable responses” test in unfair dismissal claims, the question had to be considered to establish whether a dismissal (here arising from capability relating to ill-heath absences) fell within the range of reasonable responses open to an employer.
The ET should have addressed this “as a matter of course when addressing the statutory question whether the Royal Mail’s decision to dismiss was reasonable in the circumstances”, even though not raised by the parties in pleadings or at the hearing.
It was also noted by the EAT that both the ACAS Guide to Discipline and Grievances at Work and the Royal Mail’s own attendance management policy stated that redeployment should be considered.
Comment
Katherine Irvine, Associate in our Employment team, comments:
“This decision is a reminder to employers to ensure they consider all the reasonable alternatives before moving to dismissal.
“It is important to explore opportunities for redeployment as an alternative to dismissal, even if the employee has not asked for that to be looked at, and particularly where there are absences linked to health issues.”
