EAT holds that employer should have considered availability of suitable roles arising from upcoming merger before dismissing disabled employee

What were the facts of the case?

In Cairns v Royal Mail Group [2024], the Claimant was employed in a postal delivery role. The Claimant suffered a knee injury in 2016, and following an operation in 2017 which revealed osteoarthritis, the Claimant was no longer able to carry out outdoor duties. He moved to a supernumerary indoor role.

In February 2018, the Respondent dismissed the Claimant on grounds of ill-health retirement, due to the fact that the Claimant could no longer do his job and at the time no suitable vacancies existed that he could be moved to. The Claimant unsuccessfully appealed this dismissal in May 2018. Following this, the Claimant brought a claim to the Tribunal for unfair dismissal, failure to make reasonable adjustments and discrimination arising from a disability.

The employment Tribunal dismissed all claims, holding that the employer was justified in the dismissal because the supernumerary role could not continue indefinitely.

EAT

The Claimant appealed in relation to the claims for failure to make reasonable adjustments and discrimination arising from a disability to the EAT.

The EAT allowed the appeal, finding that it would have been a reasonable adjustment for the Respondent to keep the Claimant in employment so that he could be assigned to an indoor role, on the merger of the two postal offices. Whilst at the point of dismissal in February 2018, it was not clear when the merger would be taking place, at the appeal in May 2018, it was known that the merger was expected to take place on 11 June 2018. The EAT held that the Respondent should have considered this at the point of appeal. The Claimant’s payment in lieu of notice went up to 25 May 2018.

The EAT found that even though the Tribunal found the dismissal fair, that did not mean that the employer had complied with its duty to make reasonable adjustments in light of the upcoming merger.

Learning points for employers

This case confirms that an employer should delay an employee’s dismissal on capability grounds if they know that a reorganisation, that is likely to create suitable alternative roles, is in prospect. When this is the case, the employer may not be justified to dismiss an employee on the grounds of ill health. An employer should assess this both at the point of dismissal and at the time of any dismissal appeal.

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