The Employment Appeal Tribunal (EAT) has held in Garcha-Singh v British Airways plc that an employer fairly dismissed an employee by reason of medical incapacity, despite postponing the termination date on seven occasions and not allowing him an additional right of appeal against the final decision not to extend the date further.
The claimant was employed by BA plc as cabin crew. BA plc's absence management policy was incorporated into his contract of employment and set out the procedure to be followed in the event of medical incapacity. It provided for a right of appeal against a decision to terminate employment but did not contain any reference to termination dates being postponed. The claimant went on sick leave on 26 August 2016. On 31 August 2017, BA plc gave him notice of termination of his employment which was due to take effect on 5 January 2018. He was advised by his line manager that this was "not set in stone", that he would be supported in the meantime, and that the line manager preferred to think of the termination date as "the date by which he should aim to return to work". The termination date was then postponed on seven occasions, mainly to give him time to return to work, before he was finally dismissed on 21 December 2018.
Prior to this he had raised a grievance concerning the decision made on 13 June 2018 to extend his termination date to 31 July 2018, alleging race and disability discrimination.BA plc treated this as an appeal against the 13 June decision to terminate and the appeal was not upheld.
The tribunal dismissed the claimant's unfair dismissal claim. It noted that the absence management procedure was unusual in that it set a dismissal date and then scheduled review meetings before the dismissal took effect at which it considered whether to vary the termination. Although the policy did not provide for postponement, BA plc's decision to postpone the claimant's termination did not constitute a breach of his contract. It was noted that, whilst the extensions to the termination date had caused the claimant additional stress, they had been made in an attempt to accommodate management of his ongoing medical issues and to support his return to work. It found that the procedure adopted by BA plc was within the range of reasonable responses.
The EAT dismissed the appeal. It found that, even if the successive postponements of the termination date had amounted to a breach of contract (which there hadn't been), it would not necessarily follow that the dismissal was unfair.The tribunal still had to ask itself whether the procedure adopted by the employer was within the range of reasonable responses. It was clear from the tribunal's findings that there was no substantive unfairness to the claimant and that each of the extensions (which were intended to allow him a further opportunity to return to work) were to his advantage.
Take note: Garcha-Singh deals with an unusual set of facts; it won't be common for an absence management process to encompass so many postponements to a termination date. However, in this instance, the dismissal was found to be fair and within the range of reasonable responses open to the employer to take. The extensions to the termination date were intended to allow time for him to return to work and were to his ultimate advantage.
