B Garcha-Singh v British Airways Plc

The Employment Appeal Tribunal dismissed the claimant's appeal against the Watford Employment Tribunal's dismissal of his unfair dismissal claim. The key legal issues were whether successive postponements of a termination date breached an Absence Management Policy incorporated into the claimant's contract and whether the claimant was denied a contractual right of appeal in respect of the final termination decision of 21 December 2018. The EAT held that the policy did not prohibit a manager from postponing a termination date and that the tribunal's factual finding that the postponements were for the claimant's benefit meant there was no breach of contract. In any event, the ET had found (and the EAT accepted) that the claimant had been afforded a full and fair appeal against the substantive decision to dismiss and that, applying section 98(4) Employment Rights Act 1996, the decision to dismiss fell within the band of reasonable responses.

Background and parties: The claimant was employed as Cabin Crew Long Haul by the respondent. After lengthy sickness absence he was given a termination date in August 2017 which was subsequently postponed on seven occasions and ultimately took effect on 21 December 2018. The claimant brought claims including unfair dismissal, wrongful dismissal and discrimination. The Watford Employment Tribunal dismissed his claims and the claimant appealed to the Employment Appeal Tribunal.

Nature of the appeal/relief sought: The claimant sought to overturn the ET's dismissal of his claims, principally arguing that (i) the respondent had breached an incorporated Absence Management Policy by setting and then repeatedly varying a termination date, and (ii) he had been denied a contractual right of appeal against the 21 December 2018 decision, rendering the dismissal unfair.

Procedural posture: The appeal to the EAT followed the ET judgment promulgated 30 November 2021. Permission issues and grounds were managed by EAT orders (including a direction to set down Grounds 1, 3 and 6); Ground 6 was withdrawn at the EAT hearing and the appeal proceeded on Grounds relating to unfair dismissal.

Issues framed by the court:

• Whether the respondent's practice of setting a termination date and then postponing it on several occasions contravened the AMP incorporated into the claimant's contract such that there was a contractual breach;
• Whether the claimant was denied a contractual right of appeal against the final decision not to extend the termination date on 21 December 2018 and, if so, whether that denial rendered the dismissal unfair under section 98(4) ERA 1996 (the band of reasonable responses).

Court's reasoning and conclusions: The EAT accepted the ET's factual findings that the AMP was incorporated into the contract but that Section 4 of the AMP did not expressly forbid a manager from postponing a termination date in response to changed circumstances. The ET had found that each extension was intended to benefit the claimant and that the parties had in practice agreed to the postponements. Even if the extensions had amounted to a deviation from the AMP, the ET had correctly applied the section 98(4) test and concluded the employer's conduct fell within the band of reasonable responses. The ET had also found that the claimant had a full and fair appeal against the substantive termination decision and that the additional grounds the claimant said he would have raised after 21 December 2018 added little to what had gone before. The EAT dismissed the appeal.

Appeal dismissed. The EAT held that (i) the Absence Management Policy incorporated into the claimant's contract did not preclude a manager, reasonably exercising discretion, from postponing a termination date; (ii) the ET's factual findings that each extension was to the claimant's advantage and that the parties had conducted themselves as agreeing the postponements meant there was no breach of contract; and (iii) the ET correctly applied section 98(4) Employment Rights Act 1996 and lawfully concluded that the dismissal fell within the band of reasonable responses and that the claimant had been afforded a full and fair appeal against the substantive dismissal.

Appeal from the Watford Employment Tribunal (ET judgment promulgated 30 November 2021). Permission matters were directed by orders (including a direction dated 17 October 2022 limiting grounds to be set down). The appeal was heard by the Employment Appeal Tribunal and the EAT judgment was handed down on 26 July 2023 (Neutral Citation: [2023] EAT 97).