Fox v. British Airways Plc

Where an Employment Tribunal has been specifically remitted to decide whether a material change of medical circumstances made a capability dismissal unfair under section 98(4) of the Employment Rights Act 1996, it must address that issue clearly and expressly. A reference to the evidence and a general conclusion on the range of reasonable responses do not suffice where the reasoning does not show that the critical updated medical evidence was evaluated.

Where that failure follows a second unsuccessful determination, and a fresh tribunal would otherwise have to navigate earlier findings and appellate observations, remission of the whole unfair-dismissal claim to a newly constituted tribunal may be the only just course.

The employee was dismissed with notice for capability arising from long-term sickness absence. Between the dismissal decision and the effective date of termination, medical evidence indicated that a forthcoming operation might alleviate his condition within the foreseeable future.

The Employment Tribunal dismissed claims including unfair dismissal in 2014. On an earlier appeal, the Employment Appeal Tribunal held that the Tribunal had failed to engage with the changed medical circumstances when assessing fairness at the effective date of termination. The matter was remitted to the same Tribunal. In 2016 that Tribunal again held the dismissal fair.

The employee's father appealed after the employee's death. The central issue was whether the remitted Tribunal had in fact addressed the effect of the intervening medical evidence on the fairness of the dismissal.

1. Appeal allowed. The Employment Tribunal's finding that the employee had not been unfairly dismissed was set aside. The unfair-dismissal claim was remitted to a freshly constituted Employment Tribunal, sitting with an Employment Judge alone, for determination afresh.

2. The earlier remittal concerned a precise issue: whether the material change in medical circumstances between the decision to dismiss and the effective date of termination made the dismissal unfair. That issue fell within the statutory inquiry under section 98(4) of the Employment Rights Act 1996.

3. The 2016 Tribunal correctly identified Dr Muir's report and the request to postpone termination as new matters. However, its decisive reasoning did not demonstrate that it had evaluated the critical feature of that report: that the earlier medical information had become out of date because treatment was expected to alleviate the condition within the foreseeable future. Its reference to the seriousness of the operation instead reflected earlier advice that post-operative recovery times were unknown.

4. The Tribunal therefore did not expressly address the specifically remitted issue. Nor could such engagement safely be inferred from its reference to the evidence, its statement of the applicable law, or its general conclusion that the employer could not wait longer. A clear and specific remitted issue required a clear and explicit answer.

5. A fresh start was required. The original Employment Judge had retired, and it would be inappropriate for a new tribunal to work through findings in two Tribunal decisions and observations in two appellate decisions. Although a fresh hearing more than seven years after the events was unattractive, it was the only just course.

• Employment Appeal Tribunal: Allowed this appeal, set aside the 2016 finding that the dismissal was fair, and remitted the unfair-dismissal claim to a new Tribunal for a fresh hearing.
• Employment Tribunal: On remittal, held on 22 June 2016 that the dismissal on 21 September 2010 was within the range of reasonable responses.
• Employment Appeal Tribunal: By order dated 2 September 2015, allowed the earlier appeal on the unfair-dismissal claim and remitted the question whether the intervening medical evidence affected fairness under section 98(4) of the Employment Rights Act 1996.
• Employment Tribunal: Dismissed the claims, including unfair dismissal, on 5 February 2014.
• Court of Appeal: Earlier resolved a preliminary quantum issue in the claimant's favour: [2013] ICR 1257.