The importance of considering redeployment as an alternative to dismissal – BM Insights

The Employment Appeal Tribunal (EAT)

The appeal was allowed in part.

Ground 1

Mr Bugden’s counsel contended that disability-related absences had arisen, in part, due to the actions of Mr Bugden’s manager, and that it was specifically highlighted in the ET1 document that stress and anxiety levels were exacerbated by Mr Bugden’s manager.

It was further contended by Mr Budgen’s counsel that the issue of redeployment “shouted out” from the material and that the Employment Tribunal judge ought to have raised the question as to whether redeployment would have been a potential reasonable adjustment.

The EAT disagreed with these arguments. The EAT found that absences resulting from Mr Bugden’s mental health were only part of the overall picture in terms of his disability-related absences. There were numerous disability related absences unrelated to his mental health.

The EAT outlined that redeployment was not suggested by Mr Bugden, nor was it mentioned in any occupational health reports. The EAT agreed with the findings of the Court in Project Management Institute v Latif [2007] 5 WLUK 216 where it was found that it will be an exceptional case and only in certain circumstances will the Employment Tribunal be expected to raise a particular adjustment with the parties for itself. The EAT found that this was no such case and therefore ground 1 of the appeal was dismissed.

Ground 3

Mr Bugden’s counsel submitted that consideration of the possibility of redeployment to another role, as an alternative to dismissal, was such a familiar point in relation to a claim of unfair dismissal arising from ill-health absence that the Employment Judge should have addressed it even though it had not been raised by the parties.

It was further highlighted by Mr Bugden’s counsel:

• That the ACAS Guide to Discipline and Grievances at Work outlines that the availability of suitable alternative work where appropriate, should be considered;
• The Respondent’s attendance management policy stated: “Where an employee’s capability is impacted by their health to the extent that they can no longer undertake their normal role, Royal Mail Group will work with the employee to identify a suitable alternative role wherever possible.”
• The Respondent’s attendance management policy also stated that when employees are returning from repeated absences due to an ongoing health condition, redeployment will be considered.

In response, the Respondent’s counsel argued that:

• The Employment Tribunal Judge was not required to leave every stone unturned; and
• The attendance management policy passages relied on related to employees who could no longer return to their role, whereas in this case Mr Bugden could perform his role, the dismissal was based on poor attendance.

The EAT found in Mr Bugden’s favour, rejecting the notion that the question of redeployment is confined to ill-health cases where employees could no longer carry out their role. The following passage summarises the EAT’s findings: