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Redeployment and fairness of dismissal
Although on the facts of this case failure to consider redeployment did not amount to a failure to make reasonable adjustments, the tribunal should have considered the issue of redeployment when deciding the fairness of a dismissal, even though it hadn’t been raised by the claimant.
Background
Mr Bugden had had significant health-related absences (297 days over four years). Royal Mail eventually decided to activate its disciplinary procedure. Royal Mail offered to reduce Mr Bugden’s working hours but he refused and was eventually dismissed. He claimed disability discrimination (failure to make reasonable adjustments) and unfair dismissal (based on medical incapability). At no point did he raise the question whether he should have been considered for alternative employment, in relation to either claim. The tribunal dismissed his claims and he appealed on the basis that the tribunal had wrongly failed to consider whether redeployment might have been a possibility.
EAT decision
The appeal was allowed in part.
The EAT found that, on the particular facts of the case, the tribunal had not erred in failing to consider the possibility of redeployment as a reasonable adjustment. Possible redeployment was not something that Mr Bugden or the occupational health adviser had suggested before his dismissal or even at the first instance hearing. It was not clear what the effect could have been, if any, of redeploying Mr Bugden as a means of making a reasonable adjustment.
However, redeployment should have been raised in the context of the unfair dismissal claim. The question necessarily had to be considered to establish whether dismissal fell within the range of reasonable responses open to the employer:
‘in a case such as [Mr Bugden’s] the question of whether the employer has considered redeployment as an alternative to dismissal, and the impact of that on the reasonableness of the decision to dismiss, is one that an employment tribunal can be expected to consider as a matter of course when addressing the statutory question of whether the employer’s decision to dismiss was reasonable in the circumstances. In omitting to consider that question in this case, even though the parties had not specifically raised it, the employment tribunal erred in law.’
The EAT also noted that both the ACAS Guide to Discipline and Grievances at Work and, tellingly, the Royal Mail’s own attendance management policy stated that redeployment should be considered.
Comment
This decision reminds employers that redeployment should be explored as a potential alternative to dismissal, especially in cases where absences are linked to health issues. Employers should consider all reasonable alternatives before resorting to termination – even if the employee hasn’t specifically requested redeployment.
In the context of making reasonable adjustments to support an employee with a disability, it might also be appropriate to consider redeployment if a health issue is being caused or exacerbated by a particular working arrangement and employers should not rely on this case, which was decided on its particular facts, that failure to do so will not be a breach of an employer’s obligations to make a reasonable adjustment.