Murdock v. British Airways Plc

An employee’s contractual obligation to notify a disqualifying criminal offence within 14 days must be construed according to its express terms. Where the relevant policies treated the offence as including its disposal, time ran from sentencing; compliance within that period could not be converted into a requirement to notify before working a flight.

In an unfair-dismissal case, a tribunal must assess whether the employer reasonably treated the actual allegation as sufficient to dismiss. A finding of an intention to conceal was insufficient without considering the contractual notification obligation, the relevance of a certificate of disregard, and whether the separate suitability allegation justified summary dismissal.

A direct-discrimination claim fails where disability was not a reason for dismissal and a non-disabled comparator would have been treated the same.

The Claimant, a cabin-crew employee holding an airside pass, was summarily dismissed after convictions for disqualifying offences. The Respondent alleged that he had intended to conceal the convictions and that his conduct affected his suitability to remain crew.

The Employment Tribunal dismissed claims for unfair dismissal, wrongful dismissal and direct disability discrimination under sections 13 and 39 of the Equality Act 2010. It found misconduct under the Burchell approach and found no disability-related less favourable treatment.

On appeal, the central issues were the construction of the contractual 14-day notification requirement, the fairness and contractual basis of dismissal, and whether the Tribunal had erred in rejecting direct disability discrimination.

1. Appeal allowed in part. The appeals concerning unfair dismissal and wrongful dismissal succeeded. The appeal concerning direct disability discrimination was dismissed. The successful claims were remitted to the same Employment Tribunal.

2. On the proper construction of contractual policy EG804, the disqualifying offence included its disposal. In this case the 14-day notification period ran from sentencing on 25 June 2015. The Claimant notified his line manager by 9 July 2015 and therefore complied with the express obligation. The policies did not require notification before he operated any flight during that period.

3. The Tribunal had not determined whether dismissal was fair within section 98 of the Employment Rights Act 1996. It focused on whether the employer reasonably believed that the Claimant intended to conceal the conviction, although that intention did not itself establish breach of the notification policies. It also failed to consider the certificate of disregard in the light of paragraph 6.5 of policy EG901, and failed to assess whether the free-standing suitability allegation would justify summary dismissal once the first allegation was correctly analysed.

4. The wrongful-dismissal finding could not stand. Failure to disclose despite opportunities did not, without more, establish breach of the contractual notification requirement or repudiatory misconduct. The Tribunal had not decided whether conduct other than an actual EG804 breach made the Claimant unsuitable to remain crew and justified dismissal without notice.

5. The direct-discrimination claim was correctly rejected. The pleaded complaint concerned refusal to take account of the illness-related background to the benefit claim. The Tribunal was entitled to find that this was irrelevant to the alleged non-disclosure, that disability was not a factor in dismissal, and that a hypothetical non-disabled comparator would have received the same treatment. The initial burden under section 136 of the Equality Act 2010 remained on the Claimant; the facts relied upon did not shift it.

6. Applying Sinclair Roche & Temperley v Heard, remission to the same Tribunal was appropriate. Its decision was not wholly flawed, there was no allegation of bias, and it could use its existing knowledge and notes.

• Employment Appeal Tribunal: allowed the appeal on unfair and wrongful dismissal and remitted those claims to the same Employment Tribunal; dismissed the appeal on direct disability discrimination.
• Employment Tribunal: by a reserved judgment sent on 22 November 2016, dismissed claims for unfair dismissal, wrongful dismissal, and direct disability discrimination under sections 13 and 39 of the Equality Act 2010.