Ian Bugden v The Royal Mail Group Limited

The Employment Appeal Tribunal considered appeals against an Employment Tribunal judgment dismissing claims for unfair dismissal and breach of the duty to make reasonable adjustments under section 20 of the Equality Act 2010. The EAT held that the Employment Tribunal had not erred in law in rejecting the specific reasonable adjustment contended for on appeal (redeployment raised as a reasonable adjustment) because that adjustment was not sufficiently clear from the material before the Tribunal and did not "shout out" from the evidence.

However, the EAT allowed the appeal in relation to unfair dismissal under section 98 of the Employment Rights Act 1996, holding that where dismissal arises from ill-health absence a tribunal should as a matter of course consider whether redeployment as an alternative to dismissal has been considered by the employer when assessing whether dismissal fell within the band of reasonable responses. Because the Employment Tribunal had not addressed this issue it had erred in law on unfair dismissal and the unfair dismissal claim was remitted for further consideration.

Background and parties: The claimant, employed by the respondent Royal Mail Group from 1994 until dismissal in December 2019, was dismissed under the employer's attendance management policy after a pattern of absences between 2015 and 2019. The claimant brought claims at the Employment Tribunal for unfair dismissal and for disability discrimination including breach of the duty to make reasonable adjustments under section 20 of the Equality Act 2010. The Employment Tribunal (Employment Judge Gray) dismissed those claims on 14 October 2021. The claimant appealed to the EAT.

Nature of the appeal and issues: Two grounds were pursued: (i) Ground 1 – that the Employment Tribunal should have raised redeployment as a possible reasonable adjustment under section 20; (ii) Ground 3 – that the Employment Tribunal should, when assessing fairness under section 98(4) of the Employment Rights Act 1996, have considered redevelopment as an alternative to dismissal. Neither issue had been argued below.

Procedural history: The case before the Tribunal involved occupational health reports, staged attendance review notices (AR1, AR2), dismissal and a dismissed appeal by the employer. The claimant was found to be disabled in respect of several conditions and the employer accepted knowledge of those disabilities. The Employment Tribunal found dismissal for unsatisfactory attendance to be for some other substantial reason and within the band of reasonable responses and rejected the reasonable adjustment claim.

Court’s reasoning: On Ground 1 the EAT held that redeployment as a specific reasonable adjustment did not plainly arise from the material before the Tribunal: absences from mental health were only part of the absence picture; there was limited evidence that a particular manager caused or materially contributed to disability-related absence; occupational health reports and the claimant’s own earlier representations did not raise redeployment; and Latif/Noor do not require a tribunal to raise every potential adjustment at the final hearing. On Ground 3 the EAT held that, by contrast, consideration of redeployment as an alternative to dismissal in cases of ill-health absence is a sufficiently established and important element of the statutory reasonableness inquiry under section 98(4) that a tribunal should address it even if not raised by the parties. The Employment Tribunal’s failure to consider whether redeployment had been considered was therefore an error of law.

Disposition: The EAT dismissed Ground 1 but allowed Ground 3. The unfair dismissal finding was set aside and remitted to the same Employment Tribunal judge for reconsideration limited to the issue of whether redeployment had been considered and its effect, if any, on the reasonableness of dismissal.

The appeal was allowed in part. Ground 1 (failure to raise redeployment as a reasonable adjustment under section 20 EA 2010) was dismissed because the proposed adjustment was not sufficiently clear from the material before the Employment Tribunal and did not "shout out". Ground 3 (failure to consider redeployment as an alternative to dismissal under section 98 ERA 1996) succeeded: the Employment Tribunal erred in law by not addressing whether redeployment had been considered when determining whether dismissal was within the band of reasonable responses. The unfair dismissal claim is remitted for further consideration.

Employment Tribunal (South West Region) judgment dated 14 October 2021 (Employment Judge Gray) dismissed the claimant's claims. Appeal heard by the Employment Appeal Tribunal resulting in judgment [2024] EAT 80 (Mathew Gullick KC) dated 28 May 2024, allowing the appeal in part and remitting the unfair dismissal claim to the Employment Tribunal.