Ian Wasserman

In Bugden v Royal Mail Group Ltd, the EAT held that tribunals should consider redeployment when assessing the fairness of a dismissal, even where this has not been raised by either party during the proceedings. However, tribunals will not normally be required to consider the possibility of redeployment as a potential reasonable adjustment in a disability discrimination claim where this has not been raised by the parties. 

Mr Bugden was a postal worker for Royal Mail for around 25 years. He suffered from multiple physical and mental disabilities and was absent for 32 periods totalling 297 days between 2015 and 2019, although not all of these absences were due to his disabilities. Following occupational health assessments, Royal Mail offered to reduce his hours. Mr Bugden refused for financial reasons and did not raise the issue of redeployment. He was eventually dismissed under Royal Mail’s attendance management policy and subsequently brought claims for unfair dismissal, disability discrimination, and failure to make reasonable adjustments. 

The Employment Tribunal dismissed all of Mr Bugden’s claims, finding that dismissal fell within the range of reasonable responses open to Royal Mail. Discounting his disability-related absences would not have been a reasonable adjustment to make, and in any event, he would have triggered the attendance management policy due to his repeated non-disability-related absences.

On appeal, the EAT rejected Mr Bugden’s argument that the Tribunal should have considered redeployment as a potential reasonable adjustment. Mr Bugden had not raised redeployment prior to his dismissal, in his claim form, in the list of issues, or at the hearing itself. Nor had redeployment been suggested in his occupational health reports. In addition, it was not clear what effect redeployment would have had, even if it had been considered a reasonable adjustment. 

However, the EAT upheld Mr Bugden’s other ground of appeal that the Tribunal should have considered redeployment in relation to his unfair dismissal claim, even though this had not been mentioned by the parties. The issue of redeployment was relevant to the reasonableness of Royal Mail’s decision to dismiss, particularly as its own attendance management policy and Acas guidance provided for this option. Under established case law, this should have been considered by the Tribunal as a matter of course, irrespective of whether it had been raised by either party. The EAT therefore remitted this question back to the Tribunal. 

This case highlights the importance of raising and considering reasonable adjustments for a disabled employee before any decision to dismiss, including the possibility of redeployment into a suitable alternative role where the employee’s health is being affected by their current working arrangements. Except in very exceptional circumstances, adjustments that are not raised until a final hearing are unlikely to be taken into account, and tribunals are not themselves expected to raise particular adjustments with the parties. However, the position is different in an unfair dismissal claim, where tribunals must, as a matter of course, assess whether an employer has adequately considered alternatives to dismissal, including redeployment. Failing to consider redeployment prior to dismissal in attendance and capability cases may therefore increase the risk of a finding of unfair dismissal.