Legal Services for Employees and Employers
EMPLOYMENT TRIBUNALS and APPEALS
Below you will find some recent Tribunal cases and findings. They serve as examples of what an employer or employee could have done before reaching a Tribunal.
MR IAN BUGDEN V THE ROYAL MAIL GROUP LTD: [2024] EAT 80
Unfair Dismissal, redeployment and reasonable adjustments
Mr Bugden was Royal Mail postal worker who suffered from a number of conditions who had significant number of health-related absences during his employment. He was offered reduced working hours, but refused and was subsequently dismissed. He brought a claim to the Employment Tribunal (“ET”) for disability discrimination and unfair dismissal.
The ET found that although Mr Bugden was disabled, he had not been unfairly dismissed. He appealed this on the basis that the ET should have considered whether his employer should have considered redeployment as an alternative, by way of reasonable adjustment. However, this was never raised during the dismissal process.
The Employment Appeals Tribunal (“EAT”) upheld this in part on the basis that redeployment should have been considered in the context of the unfair dismissal claim, but not in relation to the reasonable adjustments claim.
This decision should serve as a reminder to everyone that employers should consider redeployment as a potential alternative to dismissal, especially in cases where absence is linked to health issues. Employers should consider all reasonable alternatives, including redeployment, even if an employee hasn’t specifically requested it.
In terms of making reasonable adjustments for an employee who is disabled, it may be appropriate to consider redeployment if they have a health issue which is being caused or exacerbated by a particular working arrangement.
Hence it should be noted that this case was decided on the Mr Bugden’s specific circumstances, meaning that employers should not automatically assume that, based on his case, a failure to take similar actions will not be considered a breach of their obligations under the Equality Act 2010.
Full Details:
Mr Ian Bugden v The Royal Mail Group Ltd: [2024] EAT 80 - GOV.UK (www.gov.uk)
Mrs K Hibbert v The Chief Constable of Thames Valley Police: 3310944/2020
Second business whilst on sick leave - Therapeutic or Misconduct?
Katrina Hibbert was a safeguarding sergeant in Thames Valley Police, working with young people that were subjected to child sexual exploitation and child drug exploitation.
She experienced symptoms of post-traumatic stress disorder (PTSD) related to an experience in her past as a victim of historic offences. Mrs. Hibbert had previously been signed off sick with depression before she took up a role as a safeguarding sergeant in early 2017.
She was advised by an occupational health nurse that having other interests and hobbies could help her balance the mental challenges of her work. Hence, Mrs. Hibbert set up a party tent business, which she said provided her with a “positive outlet” from work and eased symptoms of her mental health.
In April 2019, she discovered that a vulnerable young person she had been working with had died, and after taking annual leave, she was signed off for sick leave in May 2019 due to the distress this caused. Whilst on sick leave, she continued to operate the business.
During this time her line manager contacted her about plans for a return to work. However, she was signed off by her GP until late July, during which time permission to run her side business was reviewed and withdrawn by the force’s security adviser. Neither Mrs. Hibbert's manager, nor the adviser, spoke with her before taking away the permission to run her business.
Mrs. Hibbert failed in her appeal regarding the decision to withdraw permission.
A case was lodge with the force’s Counter Corruption Unit, which considered the continuation of the party tent business to be a potential breach of the statutory Standards of Professional Behaviour. The force began a formal investigation.
In October 2019 she began a phased return to work. Shortly afterwards she was informed that she was under investigation for gross misconduct. This trigger a further period of sick leave and she returned to work a month later.
In December 2019, the professional standards department informed her that the misconduct case would proceed to a hearing.
In January 2020, Mrs. Hibbert handed in her notice of resignation stating the investigation had had “a deeply detrimental effect” on her mental health.
Employment Judge Hawksworth said the removal of permission for Mrs. Hibbert to run her business was not a proportionate means of achieving legitimate aims. She added that the police policy provided for reviews of the permission in cases of sick leave, not automatic withdrawal. The force could have considered alternatives to simply withdrawing this, the tribunal found.
Mrs. Hibbert succeeded in her claims for disability discrimination, failure to make reasonable adjustments, and constructive discriminatory dismissal.
She was awarded a total of £1,176,368*, including £633,881 in compensation for (past and future) financial losses, £9,541 for personal injury, and £24,932 for injury to feelings.
*Due to a Reconsideration of the Remedy Judgement regarding an error in grossing up, this was revised to £ £1,168,561. [8 August 2024]
Full Details:
Mrs K Hibbert v The Chief Constable of Thames Valley Police: 3310944/2020 - GOV.UK (www.gov.uk)