Where an employee is struggling to maintain regular attendance in their role owing to genuine sickness issues, a recent Employment Appeal Tribunal case held that employers should be looking at the option of redeployment ‘as a matter of course’ before dismissing. In Bugden v Royal Mail, the Claimant had been off work on separate occasions of genuine sickness for a total of 297 days over four years. The Claimant was dismissed from his job because of his inability to fulfil his role. The Employment Appeal Tribunal held that the Respondent should have considered the possibility of redeployment before dismissing him and that this may have impacted on the fairness of the decision to dismiss. In light of this case, here are some key points all employers should know about redeployment:

  1. Redeployment should be considered as a potential adjustment as a matter of course where the duty to make reasonable adjustments is engaged (Bugden).
  2. In another recent case, Miller v Rentokil Initial UK, the EAT said that a trial period for a disabled employee in a new role can be a reasonable adjustment in itself, and there is no rule that it must be completely guaranteed, or even likely, that the employee would be suited to the new role.
  3. Whether or not redeployment is considered by the employer as an alternative to dismissal can impact on the fairness of any dismissal.
  4. A reasonable adjustment can include transferring an employee into a new role, and even by-passing competitive selection processes (Archibald v Fife Council).
  5. The duty to make adjustments does have limits – there is no obligation to slot an employee into a new role if they are entirely unsuitable (Wade v Sheffield Hallam University).

Speak to Jon Dunkley

Jon is a Partner at Wollens and can advise you. Contact Jon via email jon.dunkley@wollens.co.uk or call 01271 341021.

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