The Employment Appeal Tribunal (EAT) confirmed the previous ruling that a refusal to appoint someone who lacks the prerequisite specialist skills and experience is not contrary to a reasonable adjustment.
Facts:
Mr. Chowdhury has been employed as a Customer Service Assistant (CSA) since 31 March 2020, a role that requires him to patrol the station, conduct security checks, and help customers. He occasionally worked on the help desk, a generally desirable role with an indoor location and a favourable shift pattern.
The claimant suffers from plantar fasciitis, causing extreme discomfort when standing or walking for long periods. Shortly after he started his employment, he suffered a recurrence of his symptoms and was absent from work, after which he was placed on the helpdesk as an interim measure. After another period of absence, the claimant was placed on the respondent’s redeployment register. The claimant commenced another leave of absence from October 2020 to April 2021. After a series of capability meetings in early 2021, he was given notice of a decision to dismiss on grounds of capability, taking effect on 25 August 2021.
Prior to his dismissal, the claimant had applied for no fewer than three roles within Network Rail as a stores coordinator, document controller, and HR administrator. His claim in respect of reasonable adjustments before the Employment Tribunal (ET) was that he ought to have been redeployed by the respondent into one of these roles.
The ET found that the claimant had not met the essential criteria required for redeployment into each of the alternative roles suggested and that the decision to dismiss was proportionate because any potential lesser measure had already been addressed in the reasonable adjustment claims. He appealed the decision.
Decision:
The EAT dismissed the appeal. The EAT found no arguable error of law in the ET's decision to dismiss the claims of failure to make reasonable adjustments and discrimination arising from disability. The EAT upheld the ET's reasoning for rejecting the claimant's proposed adjustments related to redeployment. The EAT found that the ET was entitled to conclude that the claimant did not meet the essential criteria for the document controller, HR Administrator, or stores coordinator roles. The ET correctly determined that it would not be a reasonable adjustment to appoint someone who fundamentally lacked the required specialist skills and experience. It also supported the ET's finding that the claimant's case regarding the necessary training to close the skills gap was vague and that no amount of training could compensate for the lack of successful prior experience for the HR and data control roles.
The EAT agreed with the ET that, in any event, assigning the claimant to the help desk would not have been an effective adjustment, as he would still have been required to perform the full range of a CSA's duties, including patrolling, which his disability prevented.
Since the ET had already found that lesser measures (i.e., the proposed adjustments/redeployment) were neither reasonable nor effective, the decision to dismiss on grounds of capability was deemed proportionate and justifiable in achieving the respondent's legitimate aim of ensuring that employees could carry out their respective roles and attend work.
Implications:
This case highlights that an employer is generally not required to redeploy a disabled employee into an alternative role if the employee does not meet the essential criteria for that role, even with training. The case affirms that an employer's assessment of essential criteria for a new role is given significant weight, provided that the assessment is genuinely applied and not unreasonable. This decision suggests that training will be required as an adjustment only if it is shown to be a reasonable and effective means of overcoming a substantial disadvantage. Vague proposals for open-ended training to cover a complete lack of necessary experience are thus unlikely to succeed.
The decision reinforces that the duty to make reasonable adjustments does not mandate "bumping"—defined as forcing another employee to swap jobs—if it can be shown that such an adjustment would not be effective or would otherwise cause significant disruption.
This case confirms the close link between the reasonable adjustments and the discrimination arising from disability claims under Section 15 of the UK's Equality Act 2010. If a Tribunal finds that no reasonable lesser steps (i.e., the proposed adjustments) are available, then the decision to dismiss on the ground of capability is more likely to constitute a proportionate and justifiable means of ensuring that staff can perform their respective duties.
