UK: EAT rules that it may be a reasonable adjustment to hold off on dismissal of a disabled employee where a suitable alternative role is expected to become available

Where an employee is no longer able to fulfil their current role due to disability, an employer's duty to make reasonable adjustments will include looking for a suitable alternative role before considering ill health dismissal.  In Cairns v The Royal Mail Group Ltd, the EAT held that, even if there is currently no such alternative role available, the duty could extend to delaying dismissal for a short period where the employer expects a suitable role (or one that is suitable after reasonable adjustment) to become available within that period. 

In this case the claimant had become unable to continue outdoor postal delivery duties and had been temporarily employed in a supernumerary indoor role.  The tribunal accepted that it was not reasonable for the employer to continue employing him in a supernumerary capacity indefinitely.  A merger between two delivery offices was anticipated which would involve a reorganisation and mean that an indoor role would become available, but the timing was uncertain at the point of the claimant's dismissal for ill health.  However, by the time of the claimant's internal appeal against dismissal, the timing of the merger and reorganisation had become clearer and was expected in about a month's time.  The EAT held that the tribunal had erred in not considering whether it would have been reasonable for the employer to continue to employ the claimant until the reorganisation occurred and the indoor role became available.  Although staff performing indoor roles were required to provide occasional ad hoc cover for absent delivery workers, it would have been a reasonable adjustment to exempt the claimant from that requirement.

The decision highlights the need for employers in this situation to investigate fully the possibility of alternative roles, either already existing or expected to be created in the short term.  (Previous case law has established that, where there is such a role, it may be reasonable to give the disabled employee priority over other candidates, including those at risk of redundancy, and to appoint the disabled employee even if they are not the best candidate, provided they meet the essential criteria of the role – see here.)  In considering whether roles are suitable, employers should investigate whether reasonable adjustments to the roles would make them suitable and, if there are concerns on this issue, whether a trial period would be reasonable (see our blog post here).  This latest case highlights that employers should ensure they revisit this issue during any appeal process, in case the position has changed.