In Awojobi (A) v London Borough of Lewisham, following concerns about Awojobi’s (‘A’) performance, an ‘improvement’ action plan was put in place but was unsuccessful. ‘A’ was dismissed for incapability as no further training could be identified and redeployment was not a viable option because she did not possess the skills required for other Council posts. An ET found the dismissal to be fair; a fair procedure had been followed, ‘A’ was placing additional burdens upon the service and fellow employees and redeployment was not feasible because it would simply be pushing the problem elsewhere. ‘A’ appealed arguing that as a matter of principle an employer should consider redeployment prior to making a decision to dismiss on capability grounds.
The EAT rejected the appeal. There is no principle of law that an employer will be acting unreasonably if an employee is not given the opportunity of alternative employment in a less demanding role. The legal position is that set out in Bevan Harris Ltd v Gair [1981] IRLR 520, i.e. there is not necessarily an obligation upon every employer who dismisses an employee on the grounds of capability to offer him or her employment in another position; however, every case must depend upon its own circumstances. Given the circumstances in this case, the ET did not err in the way it approached the question of redeployment.
Note the phrase ‘there is not necessarily an obligation’ to redeploy in capability cases; so, while it was not reasonable to redeploy in this case, in different circumstances, a failure to do so may make a dismissal unfair.
This update provides summary information and comment on the subject areas covered. Where employment tribunal and appellate court cases are reported, the information does not set out all of the facts, the legal arguments presented and the judgments made in every aspect of the case. Click on the links to access full details. If no link is provided, contact us for more information. Employment law is subject to constant change either by statute or by interpretation by the courts. While every care has been taken in compiling this information, SM&B cannot be held responsible for any errors or omissions. Specialist legal advice must be taken on any legal issues that may arise before embarking upon any formal course of action.
This provides summary information and comment on the subject areas covered. Where employment tribunal and appellate court cases are reported, the information does not set out all of the facts, the legal arguments presented and the judgments made in every aspect of the case. Employment law is subject to constant change either by statute or by interpretation by the courts. While every care has been taken in compiling this information, we cannot be held responsible for any errors or omissions. Specialist legal advice must be taken on any legal issues that may arise before embarking upon any formal course of action.
