The importance of considering redistribution as an alternative to discharge

Employment Appeal Tribunal (EAT)

The appeal was allowed in part.

Earth 1

The lawyer of Mr. Bugden alleged that the disability-related absences arose in part because of the actions of Mr. Bugden and that it was specifically noted in document ET1 that stress and anxiety levels had been exacerbated by Mr. Bugden.

Further, the lawyer of Mr. Budgen claimed that the issue of reinstatement was “dissolved” by the material and that the Labor Court judge should have raised the question of whether reinstatement would have been a reasonable possible adjustment.

The EAT disagreed with these arguments. The EAT found that the absences resulting from Mr. Bugden were only part of the overall picture in terms of his disability-related absences. There were numerous disability-related absences unrelated to his mental health.

The EAT emphasized that reinstatement had not been suggested by Mr. Bugden was not even mentioned in any occupational health report. The EAT agreed with the Court’s findings at Project Management Institute v. Latif [2007] 5 WLUK 216 where it was held that it will be an exceptional case and only in certain circumstances will the Labor Tribunal be expected to set up a separate arrangement with the parties for itself. The EAT found that this was not such a case and therefore point 1 of the appeal was dismissed.

Earth 3

The lawyer of Mr. Bugden submitted that consideration of reinstatement in another role, as an alternative to dismissal, was such a familiar point in relation to a claim for unfair dismissal due to ill health that the Employment Judge should have treated it even though it was not raised by the parties.

It was further emphasized by the lawyer of Mr. Bugden:

• That the ACAS Guide to Discipline and Complaints at Work prescribes that the availability of suitable alternative work, where appropriate, should be taken into account;
• The Respondent’s attendance management policy stated: “Where an employee’s ability is affected 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 an alternative role of appropriate wherever possible.”
• The Respondent’s attendance management policy also stated that when employees return from repeated absences due to a persistent health condition, reinstatement will be considered.

In response, the lawyer of the responsible party argued that:

• The Employment Tribunal Judge was not asked to leave any stone unturned; AND
• Passages of the attendance management policy were relied upon in relation to employees who could no longer return to their role, while in this case Mr. Bugden could perform his role, the dismissal was based on poor attendance.

The EAT found in favor of Mr. Bugden, rejecting the notion that the issue of redeployment is limited to cases of illness where employees could no longer perform their role. The following passage summarizes the EAT’s findings: