Ian Bugden v The Royal Mail Group Limited

In this judgment, I shall refer to the parties as "the Claimant" and "the Respondent", as they were before the Employment Tribunal.

This is an appeal against the judgment of an Employment Tribunal sitting in the South West Region (Employment Judge Gray, sitting alone) dated 14 October 2021. The Employment Tribunal dismissed claims of (1) unfair dismissal, contrary to the provisions of Part 10 of the Employment Rights Act 1996 and (2) breach of the duty to make reasonable adjustments for the Claimant as a disabled person under section 20 of the Equality Act 2010. A claim for discrimination arising from disability, contrary to section 15 of the Equality Act, was also dismissed by the judgment and is not the subject of this appeal. A further claim of harassment related to disability was dismissed upon withdrawal.

The parties had consented to the claims, which included discrimination claims that would ordinarily be heard by an Employment Judge sitting with non-legal members, being determined by a judge sitting alone. There was a fully remote hearing by Cloud Video Platform of four days' duration from 11-14 October 2021. The judgment, with oral reasons, was delivered on the afternoon of the fourth day. Written reasons were requested by the Claimant; they were signed by the Employment Judge on 15 November 2021 and sent to the parties on 8 December 2021.

Before the Employment Tribunal, the Claimant represented himself and the Respondent was represented by its solicitor, Mr Harte of Weightmans LLP. On appeal, the Claimant has instructed solicitors and is represented by Mr Large of counsel. The Respondent is represented on the appeal by Mr Peacock, solicitor, of Weightmans LLP. I am very grateful to Mr Large and to Mr Peacock for their considerable assistance in presenting the arguments for their respective clients.

The Claimant was employed by the Respondent (which is a large employer, with 139,000 employees nationally) from 15 August 1994 until 10 December 2019. He was an operational postal grade worker: that is, he was involved in the delivery of mail. The Claimant was dismissed with notice, following the application of the Respondent's attendance management policy, as a result of regular and substantial periods of absence from work over a number of years: between 2015 and 2019, the Claimant had 32 periods of absence, amounting to 297 days in total. The Respondent's managers considered at the time of dismissal that they could have no confidence that the Claimant's attendance would improve in the future. Some of these absences were related to long-term medical conditions. It has never been suggested that any of the Claimant's periods of absence were for other than genuine reasons.

The Claimant lodged an ET1 Claim Form at the Employment Tribunal, contending that his dismissal was unfair and that he had been subject to disability discrimination. Following concessions by the Respondent in relation to some of the Claimant's conditions and a preliminary hearing on 13 July 2021 to address whether others amounted to disabilities, the position at the final hearing in the Employment Tribunal was that the Claimant had been found to be disabled by reason of (1) anxiety and depression, (2) visual migraines (3) musculoskeletal disorders and (4) bladder issues. The Respondent accepted that it had the necessary knowledge of disability in relation to all these conditions.

On 29 August 2017, the Respondent notified the Claimant in writing that, to use the Claimant's description in his evidence to the Employment Tribunal, it was drawing a "line in the sand" in relation to his absence from work and that there would need to be an improvement in his attendance. The background to the notification was that across the three years prior to that date, the Claimant had 16 periods of sickness absence amounting to 134 days in total. 71 of those days involved absence related to the Claimant's disabilities.

In the period up to 1 August 2018, which was just over 11 months following the notification letter, the Claimant had a further 10 periods of absence over 26 days in total. Of those, 18 days of absence were related to the Claimant's disabilities.

An occupational health report was prepared, dated 6 August 2018. The report recommended that the Claimant's working hours be reduced. The Claimant was then offered a reduction in his working hours (with a corresponding reduction in pay) but he refused it on financial grounds.

An initial notification (referred to as an "AR1") under the Respondent's policy was issued to the Claimant on 16 August 2018. The Claimant had a further period of 22 days' sickness absence from 30 August 2018 to 20 September 2018. A meeting to consider the Claimant's position under the absence policy took place on 28 September 2018, when the Claimant was accompanied by his union representative. The result was that on 10 October 2018 a second stage "AR2" notification was issued. The Claimant raised a grievance about the issuing of the "AR2" notification, but this was not upheld.

Following the "AR2" notification, over the next 10 months until 8 August 2019 the Claimant had a further six periods of absence of 117 days in total. Four of those periods, amounting to a total of 108 days, were for reasons of ill health that were not related to the Claimant's disabilities.

The Respondent then moved to the third stage of its policy, involving consideration of dismissal. A further occupational health report was obtained, dated 15 August 2019. There was a hearing on 4 September 2019, at which the Claimant was accompanied by his trade union representative. The Claimant was dismissed, with notice, in a letter dated 17 September 2019 on the basis of an unsatisfactory level of attendance which was unlikely to improve.

The Claimant appealed against his dismissal, and the appeal (which was by way of re-hearing) took place on 11 October 2019. The appeal was dismissed by letter dated 26 October 2019, with the result that the Claimant's employment terminated on 10 December 2019 at the end of the contractual notice period.

The Claimant filed an ET1 claim form with the Employment Tribunal on 7 February 2020. He stated in the claim form that he was claiming for unfair dismissal and disability discrimination; some details of those claims were given, but I think that it is fair to say that the Claimant's case was not extensively set out in the ET1.

There was a case management preliminary hearing by telephone before Employment Judge Goraj on 1 October 2020 at which the Claimant appeared as a litigant in person and the Respondent was represented by its solicitor, Mrs Roberts. The Claimant joined the hearing 45 minutes late; the judge's case summary records that matters already discussed were gone through again and that the issues in the case were identified and agreed with him.

In relation to the claim for breach of the duty to make reasonable adjustments, the Employment Judge's record of the issues as identified at the case management hearing reads, materially, as follows:

In relation to the claim for unfair dismissal, the record of the issues identified reads as follows:

At the final hearing of the Claimant's claim in October 2021, Employment Judge Gray heard evidence from the Claimant himself and from four witnesses for the Respondent, including the manager who made the initial decision to dismiss the Claimant and the manager who heard the Claimant's appeal. The material part of the Employment Judge's reasons reads as follows:

Following reformulation after a Preliminary Hearing, two of the three original grounds of appeal against the judgment of the Employment Tribunal are now pursued. They are:

Both these grounds of appeal rely on issues that were not raised by the Claimant before the Employment Tribunal, whether at the case management stage or at the final hearing. During the oral argument on the appeal, Mr Large suggested that the possibility of redeployment had been raised by the Claimant during the cross-examination of one of the Respondent's witnesses. That suggestion had not been made before the hearing of this appeal and there was no agreement between the parties as to what (if anything) had been said. In any event there is no suggestion that this point was relied on by the Claimant in his submissions to the Tribunal on either of the claims. I proceed on the basis that the point was not raised by the Claimant before the Employment Tribunal.

The essence of the Claimant's argument on this appeal is that the question of redeployment was an obvious and indeed fundamental point which the Employment Tribunal ought to have raised with the parties itself in relation to both the reasonable adjustments claim and the unfair dismissal claim. In contrast, the Respondent submits that the Employment Tribunal's decision cannot be impugned on this basis: the Claimant did not raise such an argument at any stage in the proceedings below, and so he cannot now seek to overturn the judgment for the reasons advanced.

The statutory provisions in issue in this case are section 20 of the Equality Act 2010 and section 98 of the Employment Rights Act 1996.

Section 20(3) of the Equality Act provides, materially, that the requirement on an employer is:

Section 98 of the Employment Rights Act provides, materially:

Several authorities were cited to me in relation to the obligation on an Employment Tribunal to raise matters when the parties before it have not done so themselves. In Small v Shrewsbury and Telford NHS Trust [2017] EWCA Civ 882, [2017] IRLR 889 at §§11-12, Underhill LJ endorsed the observations of the then President of this Appeal Tribunal, Langstaff J, that an Employment Tribunal should take for itself points that are so well-established that they arise “as a matter of course”, irrespective of whether they have been taken by the parties. The examples given by Langstaff J of such well-established points were: the approach applicable to unfair dismissal claims in redundancy cases set out in Langston v Cranfield University [1998] IRLR 172; that applicable to unfair dismissal claims in misconduct cases in British Home Stores v Burchell [1980] ICR 303 and Iceland Frozen Foods v Jones [1983] ICR 17; and the general heads of loss identified in Norton Tool Co. Ltd v Tewson [1972] ICR 501. Underhill LJ went on to hold at §§14-17 of his judgment that the Employment Tribunal should “on the basis of the particular material before it” have considered “as a matter of course” a claim for future loss beyond the period by which the claimant would otherwise have been dismissed by his employer, on the basis of the approach in Chagger v Abbey National Plc [2010] IRLR 47.

In Moustache v Chelsea & Westminster Hospital NHS Foundation Trust [2022] EAT 204, Her Honour Judge Tucker dealt with an appeal in which the Employment Tribunal had failed to consider a claim for discriminatory dismissal under section 15 of the Equality Act despite all the necessary ingredients of such a claim having been raised by the claimant. Judge Tucker held at §35 of her judgment that it should have been clear to the Employment Tribunal and to the respondent in that case that the claimant was seeking to assert a connection between the impact of her disability upon her and her dismissal; she had set out details which gave “an obvious indication that the dismissal concerned an asserted disability and so may have been discriminatory”, and had also asserted in her closing submissions that her claim for unfair dismissal was because her employer had failed to address the extent of her disability. Judge Tucker also reviewed the authorities relating to the importance of the List of Issues, noting that they are no more than a case management tool which should not be elevated into a formal or rigid pleading.

Turning to the specific question of reasonable adjustments in disability discrimination cases, in Project Management Institute v Latif [2007] IRLR 579, the Appeal Tribunal said at §57:

In Noor v Foreign & Commonwealth Office [2011] ICR 695, the claimant's appeal was against a decision to strike out the claim of breach of the duty to make reasonable adjustments. After citing §§53-57 of the judgment in Latif, the Appeal Tribunal said this at §§27-31

Mr Large submitted that the Employment Judge should have raised with the Claimant whether or not redeployment was a proposed adjustment which he wanted to pursue as part of his claim for breach of the duty under section 20 of the Equality Act. Mr Large submitted that in accordance with the decision of this Appeal Tribunal in Latif (as applied in Noor), an adjustment can be raised even at the final hearing and that an alternative adjustment to that set out in Employment Judge Goraj's case management summary should have been identified by the Employment Judge at the final hearing in this case. Mr Large also pointed out that Latif had not been cited to the Employment Judge, and indeed was not mentioned in any of the authorities referred to in the written reasons. He reminded me that the Statutory Code of Practice issued by the Equality and Human Rights Commission states, in relation to the duty to make reasonable adjustments (at page 87), that an employer “should consider whether a suitable alternative post is available for a worker who becomes disabled (or whose disability worsens) where no reasonable adjustment would enable the worker to continue doing the current job”. In relation to dismissal, the Code states (at page 282) that, “Where an employer is considering the dismissal of a disabled worker for a reason relating to that worker's capability or conduct, they must consider… whether they could transfer the worker to a suitable alternative role.”

Mr Large focused his submissions on this ground of appeal on the issue of the Claimant's mental health. He submitted that the Claimant had asserted that the disability-related absences which had arisen as a result of his mental health condition had in part (although not exclusively) resulted from the actions of one of his managers, Mr Wilkinson; for example, on 5 September 2018, the Claimant said in a telephone call that his anxiety and depression had worsened following a conversation that he had with Mr Wilkinson. Mr Large also pointed out that in the ET1 Claim Form, the Claimant had alleged that he was being “micromanaged by the shift manager, which increased my stress and anxiety levels”. Mr Large submitted that this was an issue that ‘shouted out’ from the material before the Employment Judge and that he ought to have raised the question of redeployment to a role in which the claimant was no longer managed by Mr Wilkinson as a potential reasonable adjustment to alleviate the substantial disadvantage caused by the application of the identified provision, criterion or practice (“PCP”).

Mr Peacock submitted that there was no such error as contended for by Mr Large, on the material before the Employment Judge. This was not, he submitted, an issue which ‘shouted out’ for consideration. He noted that absences relating to mental health were only one part of the overall picture of both disability-related absences and other absences, that there had been two occupational health reports which had made no such recommendation as now contended for and that this proposal had not been raised by the Claimant himself either with the occupational health consultants, during the dismissal process or in his witness statement for the Employment Tribunal. Mr Peacock also noted that the evidence before the Employment Judge as to the effect of being managed by Mr Wilkinson on the Claimant's mental health condition (and on related absences) was limited; at §49 of the written reasons, the Claimant was recorded as saying in the telephone call on 5 September 2018 that “his anxiety and depression had increased due to the stress of his gallbladder and his conversation with [Mr Wilkinson] about the Claimant leaving the shop floor.”

In my judgment, the Employment Judge was not in error, in the particular circumstances of this case, in failing to raise the possibility of the alternative adjustment that is now contended for by the Claimant on this appeal. It is important to analyse the nature of the error contended for. Mr Large did not submit that it was incumbent on the Employment Judge to reformulate either the identified PCP (the requirement to attend for work) or the identified substantial disadvantage (the taking into account of disability-related absences). His submission was that given the PCP and the substantial disadvantage which had been identified, redeployment to a role which did not involve the Claimant being managed by Mr Wilkinson was a potential reasonable adjustment to alleviate the substantial disadvantage caused by the application of the PCP and should have been raised by the parties with the Employment Judge.

I accept the submissions of Mr Peacock on this ground of appeal. I do not consider that this was, as Mr Large contended, an issue which ‘shouted out’ from the material before the Employment Judge. Absences resulting from the Claimant's mental health condition were only one part of the overall picture of ill-health absence and given the Claimant's other disabilities they were only one part of the picture in terms of absences related to the Claimant's disabilities. Moreover, it was far from clear on the evidence before the Employment Judge what, if any, effect being managed by Mr Wilkinson had on the Claimant's mental health condition or the absences resulting from it. That, as set out at §49 of the written reasons, the Claimant may have considered in September 2018 that his mental health condition had at that point worsened in part (but not exclusively) as a result of a particular conversation that he had with Mr Wilkinson does not, in my judgment, mean that it was incumbent on the Employment Judge to canvass with the parties the potential adjustment now contended for on appeal on the basis that management by Mr Wilkinson was, in more general terms, contributing to the Claimant's ill-health absence and nor does the non-specific allegation in the Claim Form about the impact of being “micromanaged by the shift manager” (which does not raise a link with periods of absence from work). Further, as Mr Peacock submitted, a possible move away from Mr Wilkinson's team was not something put forward at the time either by the Claimant or by the occupational health reports; nor was it raised by the Claimant during the dismissal process, in his claim to the Employment Tribunal or at the hearing.

As the judgment of this Appeal Tribunal in Latif makes clear, it will be an exceptional case in which the adjustment is not identified until the final hearing and only in certain circumstances will the Employment Tribunal be expected to raise a particular adjustment with the parties for itself. This was not, in my judgment, such a case. It was not a case in which the adjustment now contended for “plainly ought to have been considered” (see Noor at §29). The matters relied on by Mr Large are not, in my judgment, enough to elevate this issue into one that was sufficiently clear that the Employment Judge was required to raise it with the parties himself. In reaching this conclusion, I bear in mind Mr Large’s submission, relying on §39 of Moustache, that the Claimant was a litigant in person appearing at a remote hearing in the Employment Tribunal; but I nonetheless consider that the Employment Judge did not err in law, in the particular circumstances of this case, in failing to raise with the parties the possibility of making the adjustment now contended for by Mr Large.

I therefore dismiss Ground 1 of the appeal.

Mr Large's argument on Ground 3, in respect of the claim for unfair dismissal, was considerably wider in scope than that which he advanced on Ground 1. Mr Large submitted that consideration of the possibility of redeployment to another role, as an alternative to dismissal, was such a familiar point in relation to a claim of unfair dismissal arising from ill-health absence that the Employment Judge should have addressed it even though it had not been raised by the parties, in accordance with the principle endorsed by the Court of Appeal in Small. Mr Large relied on the Appeal Tribunal's statement in Williamson v Alcan (UK) Ltd [1978] ICR 104 at 107 that:

Mr Large submitted that this was shown to be a well-established principle by the Appeal Tribunal's judgment, given some 30 years later, in First West Yorkshire Ltd v Haigh [2008] IRLR 182 at §40:

Mr Large further relied, in support of his argument that the principle was sufficiently well-established, on the ACAS Guide to Discipline and Grievances at Work, which states (pages 71-72) in relation to “frequent and persistent short-term absence” that, “if there is no improvement, the employee's length of service, performance, the likelihood of a change in attendance, the availability of suitable alternative work where appropriate, and the effect of past and future absences on the organisation should all be taken into account in deciding appropriate action” (emphasis added). He pointed out that the Respondent's own attendance management policy, which was applied in the Claimant's case, states as one of its “Guiding Principles” that:

Mr Large also referred to the section of the policy headed “Long Term Absence”, which states:

Mr Large submitted, in reliance on these passages of the Respondent's policy, that the question of whether redeployment had in fact been considered as an alternative to dismissal in the Claimant's case, and particularly (in relation to the statutory question of reasonableness) where the Respondent was a very large employer, was one which ‘shouted out’ from the very policy which its managers were purporting to apply and that it should have been raised with the parties by the Employment Judge.

Mr Peacock submitted that there was no error of law in the Employment Judge's conclusion that the Claimant’s dismissal was within the range of reasonable responses. He submitted that the Judge was not required to leave every stone unturned and that consideration by the Employment Judge of the issue of redeployment as an alternative to dismissal would have been to go ‘off piste’. In relation to the passages of the Respondent's attendance policy relied on by Mr Large, Mr Peacock argued that policy did not state that the Respondent was positively required to consider redeployment as an alternative to dismissal in a case such as the Claimant's, because the particular section relied on only applied where a “return to the normal role” was not possible - and the Claimant was able to perform his role. Mr Peacock highlighted that the Claimant's dismissal was not, as he put it, an ‘ill-health’ dismissal, in the sense that the Claimant was not capable of performing his role when at work, but was an ‘attendance’ dismissal, in that the Claimant was dismissed for unsatisfactory attendance, and the reason for the dismissal found by the Employment Tribunal to apply for the purposes of section 98 of the Employment Rights Act (which had not been challenged on appeal) was ‘some other substantial reason’ rather than ‘capability’: see Kelly v Royal Mail Group Ltd (UKEAT/0262/18/RN, Judgment 14 February 2019) at §§20-25. He submitted that even if the proposition advanced by Mr Large was sufficiently well-established in cases of dismissal for capability, it was not so established in cases of dismissal for some other substantial reason arising from ill-health absence.

In my judgment, the appeal must be allowed on this ground, substantially for the reasons advanced by Mr Large. The identified issue for determination by the Employment Tribunal, in relation to the unfair dismissal claim, was whether dismissing the Claimant was within the range of reasonable responses of a reasonable employer. I accept that 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. I reject Mr Peacock's submission that the need for an Employment Tribunal to address that question, in connection with its determination of the reasonableness of dismissal, is confined to ill-health cases where the statutory reason for dismissal is found to be capability. As the Appeal Tribunal stated in Kelly at §23, “… labels are not determinative. What is important is the factual basis for the dismissal being put forward by the employer.” In the present case, the Claimant was dismissed as a consequence of his record of absence from work arising from ill-health; indeed, the Respondent's Grounds of Resistance in the Employment Tribunal averred at §34 that:

It does not, in my judgment, matter for present purposes which of the permissible statutory reasons in section 98 of the Employment Rights Act was, in these circumstances, found to be the reason or principal reason for the dismissal (and I note that at the case management stage, the Respondent relied on capability as being the reason for dismissal). In my judgment, Mr Large is right to submit, based on the authorities upon which he relies, 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. In omitting to consider that question in this case, even though the parties had not specifically raised it, the Employment Tribunal erred in law.

I am not in a position to substitute my own decision for that of the Employment Tribunal in relation to the fairness of the Claimant's dismissal. The claim for unfair dismissal will therefore need to be remitted to the Employment Tribunal for further consideration. In so doing, I should not be taken as indicating what the result of that further consideration ought to be. It is a question for the assessment of the tribunal of first instance, and not for this Appeal Tribunal to determine in the absence of any exploration of the matter during the course of the evidence and submissions in the Employment Tribunal.

The conclusion which I have reached is, in my judgment, potentially fortified by the terms of the Respondent's attendance management policy which was applied to the Claimant and which makes specific reference to redeployment as a possible alternative to dismissal. I do not consider that the only tenable construction of the significance of that reference is the one advanced by Mr Peacock (namely, that it had no application to the Claimant's particular case). But as the proper construction of the Respondent’s policy in this respect may well be an issue between the parties when the claim is remitted, and because it is not necessary for me to determine it in order to allow the appeal, I say no more on the point.

For the reasons which I have given, the appeal is dismissed on Ground 1 but is allowed on Ground 3. The consequence is that the Employment Tribunal's judgment dismissing the claim of unfair dismissal will be set aside, and the claim remitted to the Employment Tribunal for further consideration of that claim, limited to the issue that arises under Ground 3 of the appeal.

Applying the guidance given in Sinclair, Roche & Temperley v Heard [2004] IRLR 763, in my judgment there is no reason in the circumstances why this claim should not be further considered by the same Employment Judge; and, given the error is an omission to address a specific point rather than any fundamentally flawed reasoning then I consider it is more appropriate that it be considered by the same constitution of the Employment Tribunal. I will therefore direct that the claim is, insofar as practicable, remitted to Employment Judge Gray. Beyond that, the future conduct of the proceedings (including whether it is necessary to hear further evidence) will be a matter for the Employment Tribunal to determine.