The Employment Appeal Tribunal (EAT) has held that an employee was not unfairly dismissed when his employer extended his termination date seven times, in order to give him further opportunity to return to work from sickness absence, and did not allow him an additional right of appeal against the decision to not extend the termination date further.
The facts
The claimant was employed by British Airways (BA) as cabin crew and was dismissed by reason of incapability following a lengthy sickness absence. The decision to terminate his contract was made in August 2017 (after more than a year of absence) and was due to take effect in January 2018. Thereafter, BA extended the termination date on seven occasions. Most extensions were an attempt to accommodate management of the claimant's ongoing medical conditions and support his return to work. The final extension was to allow for without prejudice discussions to take place. In July 2018 the claimant raised what he described as a "formal grievance" concerning the most recent decision made on 13 June to extend his termination date to 31 July 2018. BA treated this as an appeal against the decision to terminate his employment, which was rejected on 24 October 2018. On 21 December 2018 the respondent declined to extend the termination date any further, with the result that the termination of the claimant's employment took effect on that day.
BA's absence management policy (AMP) was incorporated into the claimant's contract of employment and set out the procedure the be followed in the event of an employee's medical incapacity. The AMP provided for a right of appeal against the decision to dismiss but did not contain any reference to termination dates being postponed.
The claimant brought claims in the employment tribunal (ET) for wrongful and unfair dismissal and race and disability discrimination. The ET dismissed all his claims and he was given leave to appeal to the EAT in respect of his unfair dismissal claim only.
The claimant's appeal to the EAT submitted that the tribunal had erred in failing to conclude that the successive extensions to his termination date constituted a breach of the AMP and therefore his contract of employment, and that BA's actions were not those of a reasonable employer. The claimant further argued that the failure to allow him a right of appeal from the 21 December 2018 decision was a breach of contract and consequently also affected the reasonableness of his dismissal.
Decision of the EAT
The EAT dismissed the appeal. It rejected the argument that the process adopted by BA involved a breach of the claimant's contract. The AMP envisaged a decision, in the singular, to terminate the employee's employment and identified the steps to be taken before making that decision. However, it did not purport to cover every eventuality and did not prevent a manager from subsequently postponing the termination date for the employee's benefit. It also found the procedure adopted by BA was within the range of reasonable responses. It was quite clear that there was no substantive unfairness to the claimant and that each of the extensions were in fact to his advantage.
With regards to the appeal, the EAT rejected contentions that the failure to afford the claimant an appeal from the 21 December 2018 decision was a breach of contract and outside of the band of reasonable responses. The AMP entitled the claimant to an appeal from "the decision to dismiss" i.e. the decision in August 2017. This was covered by the appeal he initiated in July 2018, which was determined in October 2018, therefore there was no breach of contract. Furthermore, the tribunal had lawfully found that the additional matters the employee wanted to raise at a further appeal added little to what had gone before and did not address the employer's reason for terminating his employment. In the circumstance, fairness did not require the employee to be given a second appeal.
What does this mean for employers?
This is an unusual case on the facts. Whilst the claimant argued that it was more onerous and stressful for BA to give notice to dismiss and keep extending it, it was obviously of key relevance here that the extensions were to the employee's advantage as it was intended to support his return to work. The EAT stated that the position was not materially different from an employee in a capability procedure knowing that their employment would be terminated in future if their health did not sufficiently improve to enable them to return to work. Arguably that would be a better way to approach the situation as we know from previous case law that notice must be clear and unambiguous.
In addition, while the facts of the case did not make the refusal to allow the claimant a further appeal unfair, employers should be careful in similar circumstances where the termination date is a long time after the original decision to dismiss was made. New information could arise after the decision to dismiss making it appropriate to offer a further right of appeal.
