In the recent case of Mr Golam Chowdhury v Network Rail Infrastructure Ltd, the Employment Appeal Tribunal (EAT) has provided guidance on the scope of an employer’s duty to make reasonable adjustments in the context of redeployment.

The EAT confirmed that employers are not required to redeploy disabled employees into roles for which they do not meet essential criteria, nor to displace existing staff to create a vacancy for a disabled employee, even where dismissal follows.

Facts

Mr Chowdhury joined Network Rail as a Customer Service Assistant (CSA) at London Bridge Station in March 2020. Soon afterwards, Mr Chowdhury experienced a flare-up of plantar fasciitis, a painful condition affecting mobility. Medical evidence confirmed that from July 2020 he was unfit for the full CSA role, though by July 2021 he could undertake a mainly sedentary role on a part-time basis. Network Rail placed him on its redeployment register, a system designed to help employees at risk of dismissal find alternative roles internally. Mr Chowdhury unsuccessfully applied for three alternative roles. Following a series of capability meetings, his employment was terminated on 25 August 2021.

Mr Chowdhury brought a claim in the employment tribunal arguing that he was disabled and that Network Rail had failed in its duty to make reasonable adjustments. In his view, reasonable adjustments that could have been made included:

• redeploying him into one of the alternative roles he applied for, or moving (bumping) another employee from a helpdesk role to create a vacancy for him;
• allowing him additional time on the redeployment register to secure a suitable position; and
• providing extra training or support to help him meet the requirements of other roles.

Tribunal and EAT decisions

The tribunal dismissed all his claims. It accepted that the duty to make reasonable adjustments was engaged but concluded that the specific adjustments suggested by Mr Chowdhury were not reasonable in the circumstances. In particular, redeployment was not a reasonable adjustment because Mr Chowdhury did not meet the essential criteria for the roles he had applied for and no suitable roles were available. Training could not, in this case, make up for his lack of the relevant core competencies, and extending time on the redeployment register would not necessarily have changed the outcome.

On appeal, the EAT upheld this decision. It emphasised several key principles:

• Essential criteria do not need to be waived: the duty to make reasonable adjustments does not require employers to overlook fundamental requirements for a particular role or appoint someone who cannot perform the role.
• Training is not necessarily a substitute for core experience: in this case it was clear that offering training would not be sufficient to bring Mr Chowdhury to the level of specific competence needed for the roles he had identified.
• There is no duty to “bump” staff in this situation: the Equality Act 2010 does not oblige employers to displace other employees to create a vacancy for a disabled member of staff.

Practical tips for employers

A number of practical points for employers are highlighted by this judgment:

1. Employers should seek to ensure that they clearly define the essential criteria for roles in job descriptions and recruitment processes.
2. When dealing with a disabled employee, employers should carefully document the steps taken to try to redeploy and, if relevant, the reasons the employee does not meet the criteria for a particular role.
3. Occupational health should be engaged early to guide decisions on adjustments and capability.
4. Finally, it is important to communicate transparently with employees throughout the process to reduce the risk of claims.