Employment Law Cases

Chowdhury v Network Rail Infrastructure Ltd

Redeployment is not a disability-related reasonable adjustment if the employee doesn’t meet the essential criteria for the role.

Background

Mr Chowdhury started work with Network Rail in March 2020 as a Customer Services Assistant (CSA). His duties included patrolling the station, carrying out security checks, reporting suspicious behaviour and helping customers. Mr Chowdhury suffers from plantar fasciitis, an inflammatory condition of the muscles of the feet which is difficult to treat, and which affects mobility because it can be painful to stand or walk for long periods of time. Shortly after he started work, he suffered a recurrence of his symptoms and was absent from work. He was placed on the helpdesk as an interim measure. After a further period of absence, Mr Chowdhury was placed on the redeployment register. He applied for three roles (stores co-ordinator, data controller and HR administrator) without success before being dismissed on grounds of capability in August 2021.

His tribunal claim in respect of reasonable adjustments was that he ought to have been redeployed by Network Rail into one of the three roles he’d applied for, alternatively into a receptionist role for which he did not apply or into a helpdesk role by ‘bumping’ one of the other staff members. He also claimed that Network Rail ought to have given him longer to find redeployment before deciding to dismiss or given him extra training or support with job applications or permitted him to work split shifts. He also argued that the decision to dismiss arose in consequence of his disability and was not proportionate.

The tribunal, while critical of some of Network Rail’s actions, dismissed Mr Chowdhury’s claim. Appointment to any of the alternative roles was not a reasonable adjustment as Mr Chowdhury did not meet the essential criteria. It also dismissed his claim that the decision to terminate ought to have been deferred as a further reasonable adjustment. Mr Chowdhury’s argument regarding training was too vague and the tribunal was not satisfied that training would have made up for the lack of essential competence for the roles. Mr Chowdhury appealed.

EAT decision

The appeal was dismissed.

Essential criteria cannot simply be waived. Employers are not required to overlook fundamental requirements. The roles for which Mr Chowdhury applied required ‘essential criteria’ such as prior relevant experience and strong Microsoft Office skills. He lacked both. It would not have been reasonable to waive or disapply those essential criteria. Training him to make up for the deficit was not a viable adjustment because he had no prior experience and only basic software skills. Training cannot substitute for core experience where roles require immediate competence.

Redeployment to a helpdesk role was also rejected as a reasonable adjustment. Although the role might appear more sedentary, helpdesk CSAs still had to cover other duties requiring standing and walking (e.g. patrolling) – which Mr Chowdhury could not perform.

Comment

While not breaking any new ground from a legal perspective, this decision is a useful reminder that in cases such as these, employers are not obliged to offer or create a position the employee is unqualified or unable to do. The legal duty is to consider reasonable alternatives - not to place someone into a role that objectively they cannot perform.

As the EAT pointed out in Rentokil Initial UK Ltd v Miller, whether the employer ought reasonably to have put the employee into a given role, whether on a trial basis or not, is an objective question for the appreciation of the tribunal based on the facts found by it, drawing upon all of the evidence presented to it. It is not bound to defer to the view of either the employer or the employee. That said, a usually relevant consideration for the tribunal will be whether the employee met essential requirements of the role, in terms of skills, qualifications, knowledge, experience, or otherwise.