It’s well established that it will not normally be a reasonable adjustment to create an entirely new role for an employee who can no longer perform their normal duties because of a disability or to dismiss another employee to create a vacancy. However, it may be a reasonable adjustment to offer an employee a role, or create a role for them, as part of a wider reorganisation.

Cairns v The Royal Mail Group Ltd confirms that it may also be reasonable for an employer to delay an employee’s dismissal on capability grounds if it knows that a reorganisation is in prospect. If it is, the employee's dismissal may not be justified. Tribunals should assess the reasonableness of that step both at the point of dismissal and at the time of any dismissal appeal.

What happened

Mr Cairns was a long-serving postal delivery worker. Because of a disability, he was given supernumerary indoor duties in 2017. It was accepted that he would not be able to perform a delivery role in future. He was eligible for ill health retirement and was dismissed on capability grounds in February 2018 with a 12 week payment in lieu of notice. Although he had asked about the possibility of obtaining a permanent indoor role as part of an anticipated merger of two delivery offices, in February Royal Mail did not know when any merger would take place.

His appeal against dismissal was heard in late May 2018 but was not upheld. His subsequent tribunal claims of unfair dismissal and disability discrimination were also unsuccessful. The tribunal found that Royal Mail was justified in dismissing Mr Cairns because it was not reasonable for it to continue to employ him in a supernumerary capacity indefinitely and there were no alternative roles it could offer him when he was dismissed. He appealed against the dismissal of his disability discrimination claim.

His appeal to the EAT argued that by the time of his dismissal appeal hearing, the reorganisation of the delivery offices was expected within the next few weeks. He said that although the number of indoor roles would reduce following the reorganisation, his length of service made him automatically eligible for one of them. Alternatively, it would have been a reasonable adjustment for Royal Mail to offer him such a role as part of the reorganisation. Although staff performing indoor roles were sometimes required to cover deliveries, for example in cases of sickness absence, it would have been a reasonable adjustment to exempt him from that requirement.

The EAT agreed. The tribunal had focussed on the factual situation at the point of dismissal but had not considered the position at the time of the dismissal appeal. It should have decided whether it would have been reasonable for the employer to continue to employ him in a supernumerary capacity for a further few weeks and then offer him an indoor role with the relevant adjustment to the delivery requirement. As the tribunal had failed to address that aspect of Mr Cairns’ case, including whether the dismissal was a proportionate means of achieving a legitimate aim given the reorganisation, the claim had to be reheard.

Next steps

This decision isn’t necessarily surprising. But it does emphasise that it’s important for employers to investigate alternative roles carefully before dismissing an employee on capability grounds and to revisit their assessment during any appeal process.

In this case the gap between the dismissal and the appeal hearing, which had to be rearranged to allow the employee’s representative to attend, meant that the basis on which the employer took the initial decision to dismiss had changed significantly. Even though the tribunal found the dismissal fair, that did not mean that the employer had complied with its duty to make reasonable adjustments in light of those changes or that the dismissal was justified.

Authored by Jo Broadbent, Anvita Sharma and Stefan Martin.