Fox v British Airways Plc

For unfair dismissal, fairness under section 98(4) of the Employment Rights Act 1996 is assessed when the dismissal takes effect. Where material circumstances change during notice, the tribunal must address whether it was fair to proceed with dismissal rather than confining itself to the original decision.

An individual dismissal is not, without more, a provision, criterion or practice. It may instead be the result of applying a PCP. A substantial disadvantage must arise from the particular PCP and be assessed against non-disabled comparators. In deciding whether an adjustment is reasonable, section 18B of the Disability Discrimination Act 1995 requires a balanced assessment, including the extent to which the step might prevent the disadvantage; complete removal is not required.

The Claimant, who was disabled and absent from work because of hip-related pain, was dismissed for capability after prolonged absence. The employer had given notice in June 2010, but before dismissal took effect in September its health service advised, when refusing ill-health retirement, that anticipated treatment might alleviate his condition within the foreseeable future.

The Watford Employment Tribunal dismissed claims for unfair dismissal and failure to make reasonable adjustments. It held that the dismissal was fair, that the individual dismissal was not a PCP, and that neither an out-of-time appeal nor an extension of the notice period was a reasonable adjustment.

The Claimant appealed on the fairness of proceeding with dismissal in changed circumstances and on the PCP, substantial-disadvantage and reasonable-adjustment issues.

1. Appeal allowed. The Employment Tribunal failed adequately to engage with the material issue in the unfair-dismissal claim. Fairness under section 98(4) of the Employment Rights Act 1996 had to be assessed at 21 September 2010, when dismissal took effect, rather than solely when the original decision was made in June.

   By the effective date, relevant decision-makers knew that an operation had been fixed and that the employer’s health service considered the treatment likely to alleviate the condition within the foreseeable future. That criterion was essentially the same as the capability criterion used under the absence-management procedure. The tribunal therefore had to decide whether it was fair to proceed without revisiting the original decision. Its reasons did not address that question. Reasons given on separate disability-discrimination issues could not cure the omission, particularly where they relied on a specialist’s letter not known to the operational decision-makers.

2. The tribunal permissibly held that the individual dismissal was not itself a PCP. Following Nottingham City Transport Ltd v Harvey, a practice ordinarily has an element of repetition. A dismissal may be the result of applying a PCP, and may be the resulting substantial disadvantage, but is not itself necessarily a policy, criterion or practice. The Claimant’s alternative reliance on requirements within the absence-management policy had not been advanced before the tribunal.

3. The tribunal’s finding that the seven-day appeal procedure caused substantial disadvantage was inadequately reasoned. It had to identify disadvantage caused by that specific PCP and compare the Claimant with non-disabled persons in comparable circumstances. It also had to consider the employer’s existing discretion to permit a late appeal.

4. On reasonable adjustments, section 18B of the Disability Discrimination Act 1995 requires a balanced assessment. The potential adjustment need not wholly remove the disadvantage; the extent to which it might prevent it is a factor alongside practicability and cost. Although operational difficulties could support a finding that the proposed steps were not reasonable, the tribunal’s self-direction and its treatment of the medical evidence left unclear whether it had applied the correct approach to an adjustment of the appeal procedure. That part of the appeal was also allowed.

5. The parties were directed to make written submissions on disposal within 21 days.

• Employment Appeal Tribunal: Allowed the Claimant’s appeal from the Watford Employment Tribunal’s judgment sent to the parties on 4 April 2014, which had dismissed the unfair-dismissal and reasonable-adjustment claims. Further submissions on disposal were directed.
• Employment Tribunal: Dismissed the claims for unfair dismissal, disability-related discrimination and failure to make reasonable adjustments.