Employment & Pensions Blog: Redeployment and fairness of dismissal

In the recent case of Bugden v Royal Mail Group [2024], the Employment Appeal Tribunal (the EAT) found that the Employment Tribunal (the ET) should have considered redeployment as an alternative to dismissal when determining whether the dismissal fell within the range of reasonable responses. This was even though it wasn’t raised by either party in their pleadings, during the proceedings, or at the hearing. 

Background 

Mr Bugden worked for the Royal Mail Group (Royal Mail) for 25 years as a postal worker. Between 2015 and 2019 he took regular and substantial periods of absence amounting to 297 days across this period. Royal Mail engaged their disciplinary procedure after these absences meant that Mr Bugden failed to meet their attendance policy requirements. Following an Occupational Health assessment, Royal Mail offered for Mr Bugden to reduce his working hours, which he refused. This subsequently resulted in his dismissal on the basis that Royal Mail had no confidence his attendance would improve. At no point did Mr Bugden ask for redeployment to be explored.

Mr Bugden brought claims in the ET for unfair dismissal, disability discrimination and failure to make reasonable adjustments. The ET found that Royal Mail did not fail to make reasonable adjustments, as discounting his absences would not have been a reasonable adjustment, and his dismissal was found to be fair. His claims therefore failed.

Mr Bugden appealed to the EAT, asserting that the ET failed to consider the issue of redeployment in that: 

1. Redeploying him into another role was a reasonable adjustment Royal Mail could have made given that the ET heard evidence that his health problems were worsened because of his manager’s behaviour. Although redeployment was not raised in pleadings, or at the hearing, Mr Bugden argued that the ET should have addressed this as a potential reasonable adjustment; and 
2. By failing to consider redeployment, the fairness of the dismissal was impacted. 

EAT Judgment 

The EAT found that on the particular facts, the ET did not err in failing to consider redeployment as a reasonable adjustment. This was not raised by Mr Bugden or his Occupational Health advisor prior to his dismissal nor was it raised by Mr Bugden in his pleadings, or at the hearing. Further, it was not sufficiently clear from the material presented to the ET what effect redeployment would have had on Mr Bugden had it been considered as a reasonable adjustment. This element of his appeal therefore failed. 

However, the EAT found that redeployment should have been considered in the context of the unfair dismissal claim, as a matter of course by the ET, when considering alternatives to dismissal, and the impact of that on the reasonableness of a decision to dismiss. This was a crucial question when determining if a dismissal due to absences from ill health was reasonable in the circumstances, even if Mr Bugden had not raised it prior to his dismissal, in his pleadings, or at the hearing. In failing to consider this point, the ET was found to have erred in law. The matter was remitted back to the ET to consider this point. 

Comment 

This case is a valuable reminder to employers of the importance of adequately and meaningfully considering alternatives to dismissal to ensure the fairness of a dismissal. In this case, it was immaterial that Mr Bugden had not specifically raised the issue of redeployment in his pleadings, or at the hearing. The EAT still found that the ET should have considered this point as a matter of course when considering the fairness of the dismissal. This could therefore make all the difference between a fair and unfair dismissal finding. 

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