The Employment Appeal Tribunal (EAT) recently heard the appeal of Bugden v Royal Mail. The case involved the dismissal of an employee who had regular and substantial periods of absence from work arising from his ill-health.
In summary, the EAT considered that the tribunal in the first instance failed to consider redeployment as an alternative to dismissal. The EAT has remitted the case to the original tribunal to hear the claimant's claim of unfair dismissal. In particular, should the tribunal have considered redeploying the claimant as an alternative to dismissal when determining the fairness of the dismissal?
Tribunal claim
Mr Bugden brought claims of disability discrimination, including failure to make reasonable adjustments, and unfair dismissal following the termination of his employment on 10 December 2019. His termination arose following Royal Mail's application of its attendance management policy.
Royal Mail stated that the reason for Mr Bugden's dismissal was because of his regular and substantial periods of absence. Some of these absences were related to long-term medical conditions (such as anxiety and depression, visual migraines, musculoskeletal disorders and bladder issues). Royal Mail applied its attendance management policy in determining whether to dismiss Mr Bugden.
In the original claim, Mr Bugden stated that discounting disability related absences would be a reasonable adjustment for Royal Mail to make in applying its attendance management policy. However, the tribunal disagreed on the facts and Mr Bugden's claim of failure to make reasonable adjustments was dismissed.
Applying previous case law, the tribunal also found that Mr Bugden's poor attendance constituted a fair dismissal for "some other substantial reason" (rather than capability).
Appeal
Following the decision, Mr Budgen appealed to the EAT. The interesting part of the appeal was that Mr Budgen claimed the tribunal should have raised the possibility of redeployment as a potential reasonable adjustment. Mr Budgen also claimed redeployment should have been considered when determining the fairness of the dismissal. These points had not been raised by Mr Bugden in his original claim.
The EAT considered these points and found that the tribunal had not erred in law by failing to raise redeployment with the parties when considering whether it would be a reasonable adjustment. It did not 'shout out' from the material before the Employment Judge that this would be a reasonable adjustment. The EAT therefore dismissed this claim.
However, on the same issue of redeployment, the EAT considered that the tribunal should have addressed the possibility of moving Mr Budgen to an alternative role when looking at the fairness of the dismissal. Mr Bugden's claim for unfair dismissal has been remitted to the original tribunal on this point. In particular, Royal Mail's attendance management policy included in its "Guiding Principles" that:
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.
Considering this "Guiding Principle", the EAT accepted that one of the essential questions for the tribunal is whether Royal Mail should have considered redeployment as an alternative to dismissal where the dismissal arose as a result of ill-health.
Learning Points
This case serves as a strong reminder to employers that they should carefully review internal policies and consider whether any policy provides alternatives to dismissal in certain circumstances. An employer should consider the range of reasonable responses available to it and give consideration to the fairness of a dismissal. Currently, employees' must have been employed for at least 2 years to bring an unfair dismissal claim. However, Labour have indicated that, if elected, unfair dismissal will become a "day-one" right.
Employers should also take a proactive approach in considering reasonable adjustments for an individual who is disabled. Reasonable adjustments should be considered throughout a disabled workers employment including when undergoing performance management, capability or disciplinary procedures.
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