In this case, the EAT held that an employer had not failed to make reasonable adjustments by refusing to redeploy a disabled employee into roles for which he did not meet the essential criteria, and had not discriminated against him by dismissing him at the time it did.
Facts
Mr Chowdhury was employed by Network Rail Infrastructure Ltd (NRI) as a Customer Service Assistant (CSA) at London Bridge Station from 31 March 2020. His duties included patrolling the station, conducting security checks, reporting suspicious behaviour, and helping customers, as well as occasionally staffing the helpdesk to respond to customer queries. All CSAs had to perform all of these tasks, although some CSAs were principally assigned to the helpdesk.
Shortly after beginning employment, Mr Chowdhury went off sick with a recurrence of symptoms of plantar fasciitis, a long-term inflammatory condition of the foot muscles, which affects mobility and makes it difficult to stand or walk for long periods. When he returned, he was placed on the helpdesk as an interim measure, and eventually on NRI's redeployment register. He was absent again from October 2020 to April 2021, and was unsuccessful in his applications for redeployment to alternative roles. The medical evidence from occupational health and Mr Chowdhury's doctor agreed that he was unfit to carry out the CSA role from July 2020 until his dismissal, although from July 2021 he was considered able to perform a mainly sedentary role on a part-time basis. Following a series of capability meetings, he was given notice of dismissal and his employment ended on 25 August 2021.
Mr Chowdhury brought claims in the employment tribunal, alleging that NRI had failed to make reasonable adjustments by:
- Refusing to redeploy him into one of the three roles for which he had applied, or into a helpdesk role by bumping one of the other staff members
- Not allowing him longer to find an alternative role before dismissing him
He also claimed that the decision to dismiss him amounted to discrimination arising from disability. The tribunal dismissed all of his claims, and he appealed to the EAT.
EAT decision
The EAT dismissed Mr Chowdhury's appeal. The tribunal had been entitled to find that NRI's refusal to redeploy Mr Chowdhury did not amount to a failure to make reasonable adjustments, since Mr Chowdhury did not meet the essential criteria for the HR administrator or data controller roles for which he had applied.
The essential criteria for each role included relevant prior experience, and strong skills in Microsoft Office. The EAT agreed with the tribunal that it would not have been a reasonable adjustment for NRI to disapply these essential criteria. Nor would it have been a reasonable adjustment to appoint Mr Chowdhury to either role together with training to bridge the gap, since he had no relevant prior experience at all, and only basic skills in the relevant software.
The EAT also agreed with the tribunal that redeploying Mr Chowdhury to the helpdesk was not a reasonable adjustment, as it would not have relieved him of the obligation to stand and walk for long periods. CSA staff assigned to the helpdesk are still required to cover other duties, such as patrolling the station, and Mr Chowdhury could not do this because of his disability.
Nor would it have been a reasonable adjustment to allow Mr Chowdhury longer to find an alternative role before dismissing him. By the date of termination Mr Chowdhury had been off sick or only fit for limited duties for over a year, there was no clear prognosis for his recovery, and he had only applied for three alternative roles. The tribunal had been entitled to find that it was unclear whether further delay would achieve anything, and NRI had acted reasonably in deciding to terminate Mr Chowdhury's employment when it did.
As for Mr Chowdhury's claim that his dismissal amounted to discrimination arising from disability, the EAT upheld the tribunal's finding that NRI's aims of ensuring employees were capable to carry out their role and that they attended work were legitimate. In view of Mr Chowdhury's ongoing ill-health, the only options open to NRI were redeployment, allowing more time, or dismissal. The tribunal had thoroughly assessed each of these options when considering Mr Chowdhury's reasonable adjustments claim, and had been entitled to rely on that analysis to conclude that dismissal was a proportionate means of achieving NRI's legitimate aims.
What does this mean for employers?
This case reassures employers that a refusal to redeploy a disabled employee into a role for which they do not meet the essential criteria is unlikely to constitute a failure to make reasonable adjustments. Tribunals will, however, scrutinise whether such criteria really are essential, and whether or not the employee does in fact meet those criteria. Employers should therefore consider carefully any applications for redeployment by a disabled employee, and be prepared to provide evidence (such as the results of any test or assessment process) to support any decision that the employee did not meet the essential criteria for the role.
