Fox v British Airways Plc

Where an Employment Tribunal’s findings of fact, despite errors in its reasoning, permit only one lawful outcome, the Employment Appeal Tribunal may substitute that outcome rather than remit the claim. A reasonable-adjustments claim fails where the relevant provision, criterion or practice caused no substantial disadvantage, or where the employer took a reasonable step that removed that disadvantage.

When remitting an unresolved issue, the tribunal must select the forum that best serves justice. Remission to the same tribunal may be appropriate where it can fairly reconsider the limited outstanding issue, recalls the case, and offers a proportionate and cost-saving course without any issue of bias or a wholly flawed original decision.

The Employment Tribunal had dismissed claims for unfair dismissal and disability discrimination by failure to make reasonable adjustments. On the substantive appeal, the Employment Appeal Tribunal held that the Tribunal had not adequately addressed a material change of circumstances relevant to fairness. It also identified errors in the reasonable-adjustments reasoning under Disability Discrimination Act 1995.

This disposal hearing determined whether the disability discrimination claim should be remitted or dismissed, and whether the remaining unfair dismissal issue should return to the same or a different Employment Tribunal.

1. The disability discrimination claim was dismissed. Although the Employment Tribunal had erred in its approach to substantial disadvantage and reasonable adjustments, its factual findings allowed only that result. The relevant PCP was the seven-day time limit for an appeal. The employer had mitigated it by permitting an out-of-time appeal if reasons for delay were given.
2. The Employment Tribunal had found that this condition was reasonable, that the Claimant could comply with it, and that it caused him no disadvantage. The Appeal Tribunal was required to respect those findings and could not re-evaluate the evidence. They answered both whether the PCP caused substantial disadvantage and, if it did, whether the employer had taken a reasonable step to avoid it.
3. The proposed extension of the notice period could not alter the result. An adjustment must address a disadvantage caused by the PCP. On the findings, the mitigated appeal deadline caused no such disadvantage. Applying Jafri v Lincoln College [2014] IRLR 544, only one outcome was permissible, so remission was unnecessary.
4. The unfair dismissal issue was remitted to the same Employment Tribunal, so far as practicable. Applying the remission guidance in Sinclair Roche & Temperley v Heard & Fellows [2004] IRLR 763, the Tribunal could reasonably be expected to recall the case and its unchallenged reasoning. A same-tribunal rehearing would be shorter and less costly. There was no allegation of bias or partiality, and the original decision had not been wholly flawed. That course was proportionate and best served justice.

• Employment Appeal Tribunal: At the substantive appeal judgment of 22 April 2015, the dismissal of the unfair dismissal and reasonable-adjustments claims was successfully challenged. At this disposal hearing, the disability discrimination claim was dismissed and the remaining unfair dismissal issue was remitted to the same Employment Tribunal.
• Employment Tribunal: Dismissed the unfair dismissal and disability discrimination claims. Its citation is not stated in the judgment.