There are times when it is incumbent on an Employment Tribunal (ET) to consider a point of its own accord if the parties in the case have not raised it. In a recent case, a postal worker successfully argued before the Employment Appeal Tribunal (EAT) that the ET should have considered whether redeploying him would have been a suitable alternative to dismissal (Bugden v Royal Mail Group Ltd).

The man had worked for his employer for more than 25 years. After several periods of absence between 2015 and 2019, some of which were disability-related, he was dismissed following the application of the employer's attendance management policy. He brought an ET claim alleging disability discrimination and unfair dismissal.

Dismissing his disability discrimination claim, the ET agreed with the employer that discounting his disability-related absences was not a reasonable adjustment to make and that he would in any event have been dismissed on the basis of his non-disability-related absences. The ET also rejected his unfair dismissal claim, finding that his dismissal was reasonable in the circumstances and there were no procedural failings.

The man appealed to the EAT on the grounds that the ET had erred in law in failing to consider the possibility of redeploying him, both as a reasonable adjustment and as an alternative to dismissal. The possibility had not been raised before the ET, but the man argued that it was an obvious point that the ET should have raised itself.

The EAT found that, on the particular facts of the case, the ET had not erred in failing to consider the possibility of redeployment as a reasonable adjustment. However, it should have been raised in the context of the unfair dismissal claim. The question necessarily had to be considered in order to establish whether dismissal fell within the range of reasonable responses open to the employer. The EAT also noted that both the Acas Guide to Discipline and Grievances at Work and the employer's own attendance management policy stated that redeployment should be considered. The man's unfair dismissal claim was remitted to the same ET for reconsideration.