EAT finds that employer should have considered redeployment as an alternative to ill-health related dismissal

The Facts

In Bugden v Royal Mail Group Ltd [2024], the claimant was a postal worker who suffered from various physical and mental disabilities including anxiety and depression, migraines, musculoskeletal disorders, and bladder issues. After lengthy absences over four years (32 periods of absence amounting to 297 days), the respondent commenced a disciplinary procedure and offered to reduce the claimant's working hours. The claimant refused for financial reasons and his employment was ultimately terminated. He brought claims for unfair dismissal and disability discrimination.

The Tribunal dismissed the claims and the claimant appealed to the EAT, arguing that the Tribunal had erred in failing to consider whether redeployment might have been a possibility.

EAT outcome

The EAT allowed the appeal in part, finding that:

• There was no obligation to consider redeployment in the context of the duty to make reasonable adjustments. Possible redeployment was not something that the claimant or the occupational health adviser had suggested before the claimant's dismissal or even at the first instance hearing. It was not clear what the effect could have been, if any, of redeploying the claimant as a means of making a reasonable adjustment.
• However, the issue of redeployment was material to the fairness of the claimant's dismissal. To identify whether the dismissal was within the range of reasonable responses, one question is whether the employer had considered redeployment as an alternative to dismissal. Case law has established that this is a question that the Tribunal should have asked as a matter of course. The Tribunal had erred in failing to consider it. The unfair dismissal claim was therefore remitted on this point.

Learning Points for Employers

This case acts as a useful reminder for employers of the importance of exploring redeployment opportunities before deciding to dismiss as a result of regular absence relating to ill-health. Employers in similar scenarios should consider redeployment and keep contemporaneous records demonstrating their thought processes. 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.

For more information or advice, please contact Zahra Gulamhusein in our Employment team on 020 7665 0868. Alternatively, you can complete the form below.