Summary Description:

The Tribunal ought to have been aware of the need to consider alternatives to dismissal within the general fairness and reasonableness when it comes to making a dismissal, so it would be considered even if it was not raised.

Background:

The claimant was employed from 1994 until 2019 as an operational postal grade worker.   The claimant was dismissed following the application of the respondent’s absence management policy.  This was as a result of regular and substantial periods of absence between 2015 and 2019.   There were 32 periods of absence amounting to 297 days in total.  The respondent in making their decision stated they had no confidence that the claimant’s attendance would improve.   When it came to the reason for the dismissal there was never any suggestion that the periods of absence were for other than genuine reasons but in fact some of them were related to long-term medical conditions.

The claimant brought a claim citing unfair dismissal and disability discrimination.

Outcome:

The claimant argued that there ought to have been a possibility of redeployment as a reasonable adjustment and that the dismissal was unfair citing Section 98(4) of the Employment Rights (NI) Order for a decision to be made having regard to the size and administrative resources of the employer as well as with equity and the substantial merits of the case. The Tribunal dismissed the case noting that the latter ground was not cited in the List of Issues.

The claimant appealed to the EAT.  The EAT dismissed the appeal on the first ground stating that the particular adjustment sought was not sufficiently clear from the material raised before the Tribunal.  On the latter ground the EAT found that the Tribunal had erred in law in failing to consider whether redeployment could have been an alternative to dismissal in answering the question relating to the fairness of the dismissal generally.   It was an established principle which the Tribunal ought to have been aware of even if not raised by the parties at that time.  The case was remitted back to the Tribunal.

Practical Guidance for Employers:

This case provides useful guidance for the Tribunal and HR professionals alike.  The EAT makes it clear that there are such established principles of employment law that the Tribunal should be mindful of when making their decision, such as the overarching fairness and reasonableness when it comes to a dismissal.  This trickles down into decision making by the employer in terms of the considerations when making a decision to dismiss and whether there are alternatives to dismissal – such as redeployment as sought in this case.
https://assets.publishing.service.gov.uk/media/6655af9d7b792ffff71a843b/Mr_Ian_Bugden_v_The_Royal_Mail_Group_Ltd__2024__EAT_80.pdf