Ian Bugden v The Royal Mail Group Limited

In a health-related absence dismissal, an Employment Tribunal considering fairness under section 98(4) must consider as a matter of course whether the employer considered redeployment as an alternative to dismissal. That requirement is not confined to dismissals classified as capability dismissals. The factual basis of the dismissal, rather than its statutory label, is decisive.

By contrast, a tribunal need not devise and raise an unpleaded reasonable adjustment unless the adjustment is sufficiently clear from the material before it. It will be exceptional for an adjustment first identified at the final hearing to require the tribunal itself to raise it.

The claimant, a postal worker, was dismissed after repeated periods of ill-health absence under the respondent’s attendance management policy. He was disabled for the purposes of the Equality Act 2010. The Employment Tribunal dismissed his claims for failure to make reasonable adjustments, discrimination arising from disability and unfair dismissal.

On appeal, he contended that the Tribunal should itself have raised redeployment: first, as a reasonable adjustment; and secondly, as an alternative to dismissal when deciding fairness. Redeployment had not been included in the agreed List of Issues or advanced at the final hearing.

1. Appeal allowed in part. Ground 1, concerning reasonable adjustments, was dismissed. Ground 3, concerning unfair dismissal, was allowed. The dismissal of the unfair-dismissal claim was set aside and that claim was remitted.

2. The proposed adjustment on Ground 1 was redeployment away from a particular manager. It was not sufficiently apparent from the evidence that management by that person caused, in any general or material way, the claimant’s mental-health-related absences. The proposal had not been advanced during the employer’s process, in the claim, in the List of Issues, in the occupational-health evidence or at the hearing. This was not an exceptional case in which the Tribunal was required to formulate and raise an unpleaded adjustment itself under section 20(3) of the Equality Act 2010.

3. On Ground 3, the Tribunal had to determine whether dismissal for health-related absence was within the range of reasonable responses under section 98(4) of the Employment Rights Act 1996. In such a case, it should consider as a matter of course whether the employer considered redeployment to an alternative role and what effect that had on the reasonableness of dismissal.

4. That inquiry is not limited to dismissals whose statutory reason is capability. Labels under section 98 are not determinative; the relevant factual basis was absence caused by ill health. The Tribunal therefore erred in law by omitting the redeployment issue, despite neither party having raised it.

5. The Appeal Tribunal could not substitute a conclusion on fairness because redeployment had not been explored in the evidence or submissions. The unfair-dismissal claim was remitted, insofar as practicable, to the same Employment Judge for determination limited to that issue.

• Employment Appeal Tribunal: allowed Ground 3, set aside the dismissal of the unfair-dismissal claim, and remitted that claim to the Employment Tribunal; dismissed Ground 1.
• Employment Tribunal, South West Region: on 14 October 2021, dismissed the claimant’s claims for unfair dismissal and disability discrimination.