by Jon Taylor

5 June 2024

In Bugden v Royal Mail Group Ltd [2024] EAT 80, the Employment Appeal Tribunal (EAT) held that, by failing to consider the issue of redeployment of a disabled employee when determining the fairness of their dismissal, an Employment Tribunal (ET) had erred in law.

The EAT has held that an ET erred by not taking into account whether an employer had considered redeployment when determining the fairness of a dismissal. Mr Bugden suffered from multiple physical and mental disabilities and, following 32 periods of sickness absence (totalling 297 days over four years) he was dismissed by Royal Mail. Mr Bugden brought claims of unfair dismissal and disability discrimination, which were dismissed by the ET.

However, on appeal of Mr Bugden’s unfair dismissal claim the EAT held that Royal Mail should have considered redeployment as an alternative to dismissal. This decision was made in accordance with the Acas Guide to Discipline and Grievances at Work and Royal Mail’s own attendance management policy, which makes specific reference to redeployment as a possible alternative to dismissal.

It was first established by LJ Underhill in Small v Shrewsbury and Telford NHS Trust [2017] EWCA Civ 882 that the ET should consider redeployment as an alternative to dismissal “as a matter of course”, even if it is not raised by either the Claimant or Respondent. The ET failed to do this.

Accordingly, the ET’s judgment which dismisses the claim of unfair dismissal has been set aside and the claim will be remitted to the ET for further consideration (which will be limited to the issue that arises under this particular ground of the Claimant’s appeal). The ET will now need to determine whether dismissing Mr Bugden was within the range of reasonable responses of a reasonable employer.

All other grounds of the Claimant’s appeal were dismissed by the EAT.

This recent case highlights the importance for employers to be familiar with their internal policies and to comply with the detail contained within them.

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