An employer was not entitled to dismiss and offer to re-engage certain of its employees on new...
Reasonable adjustments: relevance of pending reorganisation
Cairns v The Royal Mail Group Ltd
The possibility of delaying a disabled employee’s dismissal pending a reorganisation was relevant to whether his dismissal was justified.
Background
Mr Cairns was a long-serving postman. Disability (a knee injury and osteoarthritis) meant he could no longer work outdoors and in 2017 he was moved to a supernumerary indoor role. In February 2018 Royal Mail dismissed Mr Cairns on grounds of ill-health retirement, because he could no longer do his job and at the time no suitable vacancies existed to which he could be moved. Although he had asked about the possibility of obtaining a permanent indoor role as part of an anticipated merger of two delivery offices, in February Royal Mail did not know when any merger would take place. Mr Cairns unsuccessfully appealed this dismissal in May 2018. He brought tribunal claims of unfair dismissal, failure to make reasonable adjustments and discrimination arising from a disability. All his claims were dismissed, the tribunal holding that Royal Mail’s decision to dismiss was justified because the supernumerary role could not continue indefinitely. Mr Cairns appealed the rejection of his claims for failure to make reasonable adjustments and discrimination arising from a disability.
EAT decision
The appeal was allowed.
Mr Cairns argued that by the time of his dismissal appeal hearing, the reorganisation of the delivery offices was expected within the next few weeks. He said that although the number of indoor roles would reduce following the reorganisation, his length of service made him automatically eligible for one of them. Alternatively, it would have been a reasonable adjustment for Royal Mail to offer him such a role as part of the reorganisation. Although staff performing indoor roles were sometimes required to cover deliveries, for example in cases of sickness absence, it would have been a reasonable adjustment to exempt him from that requirement.
The EAT agreed. At the point of dismissal in February 2018, it was not clear when the merger would take place, but at the appeal in May 2018, it was known that the merger was expected to take place in June 2018. The EAT held that Royal Mail should have considered this at the point of appeal.
The tribunal had focussed on the factual situation at the point of dismissal but had not considered the position at the time of the dismissal appeal. It should have decided whether it would have been reasonable for Royal Mail to continue to employ him in a supernumerary capacity for a further few weeks and then offer him an indoor role with the relevant adjustment to the delivery requirement. As the tribunal had failed to address that aspect of Mr Cairns’ case, including whether the dismissal was a proportionate means of achieving a legitimate aim given the reorganisation, the claim had to be reheard.
Comment
This decision illustrates that an inability to perform work duties due to a disability cannot be a valid ground for termination in situations where the employer has other options available to them. Employers should investigate alternative roles carefully before dismissing an employee on capability grounds and revisit their assessment during any appeal process.
This case is also a very useful reminder that common sense must be exercised when hearing an appeal – if circumstances have changed since the original dismissal then consideration must be given to them.