Reasonable adjustments during a reorganisation

Is it a reasonable adjustment to consider alternative employment pending a reorganisation or restructure?

Restricted duties

In the case of Cairns v The Royal Mail Group Ltd, Mr Cairns was employed in a delivery role at Royal Mail’s Hendon delivery office. Following an accident in 2016, it was revealed he had osteoarthritis which confined Mr Cairns to working restricted indoor duties. He was provided with a temporary role in an indoor environment. He was also referred to occupational health who advised that he met Royal Mail’s criteria for ill-health retirement.

Merger

Around February 2018, during a meeting to discuss Mr Cairns’s health, a projected future merger of Royal Mail’s Hendon office and the Mill Hill office was discussed. Following the meeting, a memo was sent enquiring of any suitable vacancies for someone with Mr Cairns’s restrictions, but none could be found.

Ill-health

Mr Cairns was dismissed on 28 February 2018 by reason of ill-health as no other suitable vacancies were available. Mr Cairns had asked about the possibility of an indoor role on completion of the merger, but it was still unknown when this would take place. He appealed and at the time the appeal took place, the plans for the merger had progressed and was likely to happen within the next four weeks. Mr Cairns raised the possibility of an indoor role at the appeal. His appeal was not upheld.

He brought claims of unfair dismissal, failure to make reasonable adjustments and discrimination arising from a disability. All the claims failed, the employment tribunal (ET) noting that ‘it would not have been reasonable to keep Mr Cairns in a supernumerary role indefinitely’.

Reasonable adjustment

Mr Cairns appealed the rejection of his discrimination claims. Mr Cairns argued that Royal Mail should have kept him in employment so that he could be assigned to an indoor post when the planned merger took place, which was expected around June 2018. Mr Cairns further argued that it would have been a reasonable adjustment to keep him in employment.

The employment appeal tribunal (EAT) allowed the appeal, finding that the ET had focused on the situation at the point of dismissal but had not considered the position at the time of Mr Cairns’s appeal against dismissal. The matter has been remitted back to a new ET to consider.

Advice for schools

The above case highlights that employers should consider the possibility of delaying a disabled employee’s dismissal on capability grounds when a pending re-organisation is likely to result in a suitable alternative position for the employee.

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