Redeployment, trial periods and disabled employees

What are employers’ obligations when dealing with reassignment of employees who have been away from work with significant periods of sickness absence?

Along with unfair dismissal, disability discrimination and the duty to make reasonable adjustments are likely to come into play. These are tricky areas, but the Employment Appeal Tribunal has provided helpful guidance on what employers should be routinely considering in these circumstances.

Redeployment as an alternative to dismissal

In a case called Bugden v the Royal Mail Group Limited, the Employment Appeal Tribunal (EAT) confirmed that “as a matter of course” employers should consider redeployment as an alternative to dismissal. In making that decision, the EAT referred to guidance in previous caselaw, the employer’s own policy and the Acas Guide to Discipline and Grievance at work.

In relation to “frequent and short-term absence”, the Acas Guide states 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.” [emphasis added]

Previous caselaw has confirmed the broad scope of the duty to make reasonable adjustments for disabled employees:

• it can include transferring an employee into a new role, and even by-passing competitive selection processes (Archibald v Fife Council (HL, 2004); but
• there is no obligation to slot an employee into a new role if they are entirely unsuitable (Wade v Sheffield Hallam University, EAT, 2012).

In Mr Bugden’s case, Royal Mail dismissed him following regular and substantial periods of absence: over a period of four years, Mr Bugden was absent due to ill health 32 times with 297 days of absence in total. There was no suggestion that any of the absences were for anything other than genuine reasons.

The EAT said that the Employment Tribunal which heard Mr Bugden’s original case should have considered whether Mr Bugden’s employer, Royal Mail, should have looked at redeploying Mr Bugden before making the decision to dismiss. Moreover, the EAT said that all Employment Tribunals should make this analysis in these circumstances. The logical extension of this is that all employers should be working redeployment into their regular practise when dealing with employees with substantial periods of absence.

However, the EAT went to say that the question of whether redeployment was a reasonable adjustment for Mr Bugden did not need to be considered by the Employment Tribunal.

The EAT said that reasonable adjustments for a disabled employee would usually need to be raised with an employer or form part of a claimant’s case submitted to an Employment Tribunal. This was not the case with Mr Bugden, so the Employment Tribunal was right to reject this aspect of his claim.

Key points

The three key points underlined by this case are:

1. employers should routinely consider the possibility of redeployment of employees with significant periods of sickness absence before dismissing; and

2. redeployment is likely to be considered a potential reasonable adjustment for disabled employees; but

3. if redeployment as a reasonable adjustment is not raised with an employer or an Employment Tribunal, that claim is likely to fail.

So, if redeployment must ordinarily be considered in the context of significant ill health absence, are employers obliged to allow all disabled employees a period of time to test out an alternative role, under an employer’s duty to make reasonable adjustments?

Redeployment as a reasonable adjustment

In another recent case, Rentokil Initial UK Limited v Miller the EAT said that a trial period for a disabled employee in a new role can be 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.

In the Rentokil case, the claimant, Mr Miller, worked in pest control but was unable to carry out his physically demanding job following a diagnosis of Multiple Sclerosis. Mr Miller applied for a number of office-based, administrative roles but was unsuccessful due to low test scores and poor performance at interview.

Mr Miller’s claims for a failure to make reasonable adjustments, discrimination arising from disability and unfair dismissal were all upheld.

What the EAT helpfully clarified in making that decision is that

• trial periods are not equivalent to medical reports or consultations with the employee in terms of assessing suitability for a role; and
• unlike assessments, trial periods can be reasonable adjustments in themselves.

Why did the EAT decide that trial periods are different from other assessments for suitability? Because they involve a substantial change in what an employee is doing; and allowing a trial period significantly affects an employee’s prospects of retaining a role with their employer.

In other words, a trial period is much more than simply a tool for assessing suitability for work.

Ill health dismissal processes

Taking into account the two recent decisions outlined above, employers would be well advised to ensure that any ill health dismissal procedures incorporate this recent guidance. Any decision not to offer redeployment or a trial period should be carefully considered and documented, particularly where that decision is likely to lead to an employee’s dismissal.

And remember the wide scope of the duty to make reasonable adjustments when considering the redeployment of a disabled employee: Employment Tribunals will expect employers to allow greater leeway for redeployment of disabled employees, especially when the alternative is dismissal.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at June 2024. Specific advice should be sought for specific cases. For more information see our terms & conditions.