The Claimant was dismissed under the Respondent’s attendance management policy as a result of periods of ill-health absence over a number of years. His claims of disability discrimination and unfair dismissal, which had been clarified in the ET at the case management stage and set out in a List of Issues, were dismissed by the ET. On appeal, the Claimant contended that the ET should itself have raised the possibility of redeployment both as a potential reasonable adjustment under section 20 of the Equality Act 2010 (Ground 1) and in relation to its determination of the fairness of the dismissal under section 98(4) of the Employment Rights Act 1996 (Ground 3). This issue had not been argued by the Claimant before the ET and was not referred to in the List of Issues.

The EAT dismissed the appeal on Ground 1, but allowed the appeal on Ground 3. In respect of Ground 1, the particular adjustment contended for on appeal was not sufficiently clear from the material before the ET. The ET had not erred in law in failing to raise that potential adjustment with the parties itself. In respect of Ground 3, the ET had erred in law in failing to consider the issue of redeployment, as an alternative to dismissal, when determining the fairness of the dismissal. This was a sufficiently well-established principle that the ET should have addressed as a matter of course even though it had not been raised by the parties. The claim of unfair dismissal was remitted to the same ET for further consideration.