TRIBUNAL DELIVERS SECOND CLASS JUDGMENT
The Employment Appeal Tribunal (EAT) has recently ruled - in Bugden v Royal Mail Group Ltd – that the Employment Tribunal had failed to consider the issue of redeployment of a disabled employee before deciding on the fairness of his dismissal.
Case Overview:
Mr Bugden was employed by the Royal Mail Group Limited from August 1994 until December 2019 as an operational postal grade worker. Between 2015 and 2019, he had 32 periods of absence, amounting to 297 days in total. His absences were attributed to conditions such as anxiety, migraines, musculoskeletal disorders, and bladder issues.
Despite disregarding his disability-related absences, Mr. Bugden’s non-disability-related absences were deemed unacceptable by Royal Mail. Consequently, he was dismissed for some other substantial reason (SOSR) with notice pursuant to the company's attendance management policy.
Mr. Bugden challenged his dismissal, bringing claims to the Employment Tribunal (ET) contending that his dismissal was unfair and that he had been subject to disability discrimination. He asserted that Royal Mail failed to make reasonable adjustments to accommodate his disabilities.
The ET was satisfied that the dismissal was fair (commenting as an aside that discounting the disability related absences was not actually required as a ‘reasonable adjustment’). The ET was satisfied that Royal Mail had followed its own procedures (including escalating warnings). Given the Claimants poor attendance record, the ET was satisfied that dismissal was within the band of reasonable responses.
“Our strong recommendation, therefore, is that in any case where you are considering dismissing somebody for an unsatisfactory attendance record, you follow your capability procedure, seek medical advice and consider whether adjustments can be made (including redeployment into a different role) before taking the decision to dismiss…”
In light of the above findings, the ET dismissed Mr Bugden’s claims.
On appeal, the Employment Appeal Tribunal (EAT) upheld the unfair dismissal claim. The appeal was advanced on the basis that the tribunal failed to consider whether Royal Mail, as a precursor to dismissal, should have considered redeploying Mr Bugden into another role (either as part of its duty to make a reasonable adjustment or as part of the full consideration of a fair dismissal). The EAT found that whether viewed as a capability or SOSR dismissal, under the ACAS Guide to Discipline and Grievances at work and Royal Mail’s own policy, Royal Mail should have explored redeployment options as part of a fair procedure. The tribunal’s failure to address this aspect rendered their decision unreasonable.
The case has been remitted to the same tribunal for reconsideration.
Points to consider:
We are unconvinced by the decision of the Respondent to treat this as an SOSR dismissal when surely the more obvious reason was capability. Indeed, it appears that the SOSR approach on this occasion may have resulted in Royal Mail overlooking the important step of considering alternative roles before dismissing the claimant. Conversely, it seems that the claimant missed a trick in not pursuing the option of redeployment as part of his reasonable adjustments claim, given that one obvious example of a reasonable adjustment that can be made is redeploying an individual into a new role.
Our strong recommendation, therefore, is that in any case where you are considering dismissing somebody for an unsatisfactory attendance record, you follow your capability procedure, seek medical advice and consider whether adjustments can be made (including redeployment into a different role) before taking the decision to dismiss (even if it is not something that is raised by the employee during the absence management or dismissal process).