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Stop Press: Barnaby Large Reported in EAT: Bugden v The Royal Mail Group Limited (Disability Discrimination: Unfair Dismissal) [2024] EAT 80

Barnaby Large, recognised in the Legal 500 as a tier 2 Junior of the Western Circuit in Employment Law, successfully appealed part of the Employment Tribunal’s decision to dismiss Mr Bugden’s claim for Unfair Dismissal.

The EAT remitted the case to the same tribunal following a determination that the Employment Tribunal had erred in law by failing to consider the issue of redeployment, as an alternative to dismissal, when determining the fairness of the dismissal.

 

Employment Background

Mr Bugden worked as an operational postal grade worker for the Royal Mail Group Limited from 15 August 1994 until 10 December 2019 when he was dismissed with notice due to regular and substantial periods of absence from work over several years including:

  1. January 2015 – August 2017: 16 periods of absence, totalling 134d of which 71d were due to his disabilities;
  2. August 2017 – August 2018: 10 periods of absence, totalling 26d of which 18 were due to his disabilities;
  • 30 August 2018 – 20 September 2018: 1 period of absence, totalling 22d; and
  1. 10 October 2018 – 8 August 2019: 6 periods of absence, totalling 117d of which 108d were due to his disabilities.

On 29 August 2017 the Respondent told the claimant that his attendance needed to improve. The Respondent conducted an Occupation Health Report (OHR) on 6 August 2018, concluding Mr Bugden’s hours (and correspondingly his pay) should be reduced. Mr Bugden refused this for financial reasons.

An initial policy notification was issued by Royal Mail on 16 August 2018. Mr Bugden, his union representative, and the Respondent met on 28 September 2018 to discuss his position. A second stage notification was issued on 10 October 2018. Mr Bugden raised a grievance about this notification which was not upheld.

The Respondent then moved to the third notification stage, considering dismissal. A further OHR was obtained in August 2019 and on 4 September 2019 Mr Bugden, his union representative, and the Respondent met. On 17 September 2019 the claimant was dismissed by letter due to unsatisfactory attendance that was unlikely to improve.

Mr Bugden’s appeal against this was dismissed by the Respondent on 26 October 2019 and his employment was terminated on 10 December 2019, on expiry of his notice period.

 

Disabilities

Mr Bugden’s underlying disabilities were deemed by the Employment Tribunal to be:

  1. anxiety and depression
  2. visual migraines
  • musculoskeletal disorders and
  1. bladder issues conditions

The Respondent had requisite knowledge relating to these conditions.

 

The Employment Tribunal

The Claimant represented himself throughout the Employment Tribunal. His claim form detailed unfair dismissal and disability discrimination however the ET1 did not extensively cover his case. There was a preliminary hearing conducted via telephone and the claimant was taken through the issues identified and agreed with them.

At the Final Hearing in October 2021 the Tribunal heard evidence from the claimant and 4 witnesses for the Respondent. The Tribunal dismissed Mr Bugden’s claim as there was SOSR for the dismissal, namely his absences.

 

The Grounds of Appeal

At the EAT two of the three original grounds of appeal were pursued:

Ground 1: That the Employment Tribunal erred in law when dismissing the claim for breach of the duty to make reasonable adjustments, by failing to consider the possibility of redeployment as a reasonable adjustment. This should have been raised with the parties by the Employment Judge.

Ground 3: That the Employment Tribunal erred in law when dismissing the claim for unfair dismissal, by failing to take into account the potential for redeployment as an alternative to dismissal when determining whether the dismissal was fair.

Both grounds relied on issues not raised by Mr Bugden before the Employment Tribunal.

 

The Law

 

Statutes

  1. Section 20 of the Equality Act 2010 and
  2. Section 98 of the Employment Rights Act 1996

Case Law

Obligation on Employment Tribunal to Raise Matters Parties Have Not

  1. Small v Shrewsbury and Telford NHS Trust [2017] EWCA Civ 882, [2017] IRLR 889 at [11-12]
  2. Williamson v Alcan (UK) Ltd [1978] ICR 104 at [107]
  • First West Yorkshire Ltd v Haigh [2008] IRLR 182 at [40]:
  1. Moustache v Chelsea & Westminster Hospital NHS Foundation Trust [2022] EAT 204

Reasonable Adjustments in Disability Discrimination Cases

  1. Project Management Institute v Latif [2007] IRLR 579
  2. Noor v Foreign & Commonwealth Office [2011] ICR 695
  • Kelly v Royal Mail Group Ltd (UKEAT/0262/18/RN Judgment 14 February 2019) at [20-25].

The Decision

Ground 1 was dismissed on the basis that:

  1. This was not an issue that ‘shouted out’ from the material before the employment judge.
  2. It was not incumbent upon the Employment Judge to canvass redeployment with the parties on the basis that a shift manager had contributed to the claimant’s ill-health absences
  • a possible move away from this management team was not put forward at the time by the Claimant or the OHR; nor did Mr Bugden raise it during the dismissal process, in his claim to the Employment Tribunal, or at the hearing.
  1. Following Latif, this case did not constitute the ‘exceptional case’ in which the adjustment is not identified until the final hearing. This case also did not fit the certain circumstances within which the Employment Tribunal is expected to raise a particular adjustment.
  2. This was not an adjustment which “plainly ought to have been considered” (Noor, [29])

Ground 3 was allowed and the matter remitted to the same tribunal on the basis that:

  1. This was a wider ground than Ground 1
  2. Following and extending Small, one of the necessary questions in the present circumstances of dismissal arising from ill-health absence, and one which should have been addressed by the Employment Tribunal even if it had not been raised by the parties, was the question of whether there had been consideration of redeployment to an alternative role.
  • It did not matter for the appeal which permissible statutory reason(s) in section 98 of the Employment Rights Act was found to be the reason/principal reason for the dismissal.
  1. Following Kelly at [23] “… labels are not determinative. What is important is the factual basis for the dismissal being put forward by the employer.”
  2. Mr Large was right to submit that in a case such as the Claimant’s the question of whether the employer has considered redeployment as an alternative to dismissal, and the impact of that on the reasonableness of the decision to dismiss, is one that an Employment Tribunal can be expected to consider as a matter of course when addressing the statutory question of whether the employer’s decision to dismiss was reasonable in the circumstances.
  3. In omitting to consider the above question, despite the parties having not specifically raised it, the Employment Tribunal erred in law.
  • The terms of the Respondent's attendance management policy which was applied to the Claimant makes specific reference to redeployment as a possible alternative to dismissal.

Wider Implications

This case places an obligation on the Employment Tribunal in cases of dismissal arising from long term ill-health and disabilities, when dealing with Litigants in Person, to consider the reasonableness of redeployment as an alternative to dismissal. Such an obligation may well prove to be an onerous one, adding to the previous .

This decision demonstrates the EAT’s willingness to incrementally increase the principle set out in Small (in combination with Kelly, Alcan and Haigh) which may well lead to further developments of what the EAT considers such a familiar point that in relation to a claim that the Employment Tribunal should raise it even if parties do not.

There may be concern over a ‘floodgates’ argument that subsequent widening of this principle risks placing too many and diverse obligations on a Tribunal however given the Alcan was handed down 45 years ago it appears the EAT is careful with what it considers to be something so commonplace the Tribunal is expected to raise it.

Another wider implication is the EAT’s decision to remit the case to the same Tribunal. Whilst this is in line with a strict reading of the guidance, consideration may have been given to the length of time which had passed since the Tribunal heard the case and the potential for an unnecessary delay being caused by not remitting the case to a new Tribunal.

For the full judge please click to https://assets.publishing.service.gov.uk/media/6655af9d7b792ffff71a843b/Mr_Ian_Bugden_v_The_Royal_Mail_Group_Ltd__2024__EAT_80.pdf