Redeployment rather than dismissal?

Bugden v Royal Mail Group Ltd 

Facts: Mr Bugden, the employee, was a postal worker for the Royal Mail. He suffered from various physical and mental disabilities including anxiety and depression, migraines, musculoskeletal disorders, and bladder issues.

The employee had significant health-related absences (297 days over four years) and Royal Mail commenced a disciplinary procedure. As part of this process Royal Mail offered to reduce the employee’s working hours but he refused (as it would have reduced his salary) and he was eventually dismissed.

The employee claimed disability discrimination (failure to make reasonable adjustments) and unfair dismissal. At no point during the internal disciplinary process or during the Tribunal process did he raise the issue of whether he should have been considered for alternative employment.

Tribunal decision

Although the Tribunal agreed that the employee was disabled, it said that he had not been discriminated against or unfairly dismissed.

The employee appealed on the basis that the Tribunal should have considered redeployment as a possible alternative to dismissal.

EAT decision

 The EAT said:

• Unfair dismissal: The Tribunal should have looked at whether (and if not why not) the employer had considered redeployment before deciding to dismiss. This is an issue that tribunals should always consider, regardless of whether it is raised by the employee. This has to be considered to establish whether dismissal falls within the range of reasonable responses. The EAT returned the claim to the Tribunal to consider this point.
• Disability discrimination: However, the Tribunal did not need to consider whether redeployment was a reasonable adjustment. Reasonable adjustments would usually need to be raised by the disabled employee or on their behalf. Redeployment had not been suggested by the employee or the occupational health adviser before the employee’s dismissal or even at the Tribunal hearing. It was not clear what the effect could have been, if any, of redeploying the employee as a means of making a reasonable adjustment. Therefore the disability discrimination claim failed.

Implications: Before dismissing an employee with sufficient length of service to bring an unfair dismissal claim (currently two years’ service) for reasons related to ill-health, it is important to explore redeployment opportunities. Also, keep good records of having done so.

In respect of disability discrimination, although redeployment is a potential reasonable adjustment for disabled employees (and one which employers should generally consider) if the employee fails to raise this, an employer may be able to successfully argue that there was no need for them to consider it.