Transcription

• Speaker #0

  Today in the Lefebvre HR and Employment Law podcast, we're discussing the judgment in the case of Chowdhury and Network Rail Infrastructure Limited, in which the Employment Appeal Tribunal has offered useful guidance as to the scope of an employer's duty to make reasonable adjustments within the context of a redeployment. In this case, C was employed as a full-time customer service assistant at a London rail station, with his main duties being to patrol the station, carry out security checks, report suspicious behaviour and help customers. Occasionally, he would work on the help desk, answering customer queries and providing information to customers. Customer service assistants were required to perform all these tasks, although eight of them were principally assigned to the help desk, which was regarded as a desirable role due to the work being indoors and a favourable shift pattern. C, who is disabled, suffers from plantar fasciitis, which affects mobility as it can be painful to stand or walk for long periods of time. Shortly after he started his employment, his symptoms flared up and he was absent from work. As an interim measure, C was moved to the help desk, but again went on long-term sick leave. Medical advice found he was fit to carry out a mainly sedentary role on a part-time basis. In accordance with its redeployment policy, C was placed on the employer's redeployment register and he applied for three alternative roles for which he was not considered suitable. C was subsequently dismissed on capability grounds. C brought a claim in the tribunal asserting that the employer had failed in its duty to make reasonable adjustments by redeploying him into one of these roles, or a receptionist role, for which he did not apply, or a help desk role by bumping one of the other staff members. In the alternative, he claimed the employer should have: a) given him longer to find redeployment before deciding to dismiss him; b) provided additional training or support with job applications; or c) permitted him to work split shifts. An employment tribunal found that the duty to make reasonable adjustments arose during the redeployment search, but rejected C's claim that he should have been appointed to each of the alternative roles. It found that C did not meet the essential criteria of each job, nor was it a reasonable adjustment for the employer to have extended the period of redeployment. It found that C's claims regarding training were too vague and open-ended, and found that training would not have made up for C's lack of essential competence for each role. The Employment Appeal Tribunal dismissed C's appeal, holding the Tribunal had correctly applied the law to the facts and confirmed that it was not part of the duty to make reasonable adjustments to redeploy an employee into a role for which they did not meet essential criteria. The duty does not require the employer to overlook fundamental requirements for a particular role, or to appoint someone who cannot perform the role or offer training where it would not be sufficient to bring the employee to the level of competence needed for the alternative role or roles they had identified, or to extend the redeployment period where there is no clear prognosis as to when or if the employee might recover, and where they have failed to fully engage in the redeployment scheme or to bump existing staff to create a vacancy that would be suitable. This decision makes it clear that, in the context of the duty to make reasonable adjustments, bumping is not a reasonable adjustment. In contrast, in redundancy situations, it may be necessary to consider whether bumping another employee is a reasonable alternative to a direct redundancy, thereby creating a transferred redundancy, although such situations are uncommon. Look out for further episodes in this series to stay up to date on all things HR and employment law related.