B Garcha-Singh v British Airways Plc

An absence-management policy which provides for a decision to terminate employment does not, without more, prohibit an employer from postponing the effective termination date in response to the employee’s changing circumstances. Postponements made for the employee’s benefit are not necessarily a contractual variation or unfair procedure.

Even a procedural breach of contract does not automatically make an incapability dismissal unfair. The tribunal must assess the procedure as a whole under Employment Rights Act 1996, section 98(4), applying the range of reasonable responses.

A contractual right of appeal against the decision to dismiss is satisfied by a full and fair appeal against that substantive decision. A later decision not to postpone the effective date does not necessarily create a further contractual appeal right.

The claimant, a long-haul cabin crew employee, was dismissed for medical incapability after a lengthy period of sickness absence and inability to fly. The respondent decided on 31 August 2017 to terminate his employment, initially with effect from 5 January 2018. It postponed that date seven times, principally to allow him further opportunities to return to work or to accommodate matters raised by him.

The claimant brought claims including unfair and wrongful dismissal and disability discrimination. The Watford Employment Tribunal dismissed them in a judgment promulgated on 30 November 2021. The disability-discrimination ground in this appeal was withdrawn.

The remaining appeal challenged the fairness of the repeated postponements and the absence of a further appeal after the respondent declined, on 21 December 2018, to extend the termination date again.

1. Appeal dismissed. The Employment Tribunal was entitled to find that the incapability dismissal fell within the range of reasonable responses.

2. The incorporated absence-management policy prescribed steps leading to a decision to terminate employment. It did not purport to regulate every event after that decision, nor did it prohibit a manager from postponing the effective date in the reasonable exercise of discretion. The respondent therefore did not breach the policy or contract by granting successive extensions. The extensions accommodated the claimant’s requests, treatment, potential return to flying, medical information and without-prejudice discussions.

3. The Tribunal’s unchallenged wrongful-dismissal finding provided a further answer: the parties had agreed the extensions and continued to perform the contract on that basis. In any event, a procedural breach of contract would not itself determine statutory fairness. Under section 98(4) of the Employment Rights Act 1996, the Tribunal had to evaluate all the circumstances and decide whether the procedure was within the range of reasonable responses.

4. The Tribunal had considered both the stress caused by the changing dates and the substantive reality. The original termination decision followed more than a year of absence, occupational-health referrals and review meetings. Each extension was for the claimant’s advantage. By December 2018 there was no sufficient basis to expect a sustainable return to flying, and the claimant declined the occupational-health assessment needed to verify his late assertion that he was fit.

5. The policy gave a right of appeal against the substantive decision to terminate employment. The claimant had exercised that right through a full and fair appeal, decided in October 2018. The later decision not to postpone the already-set termination date was not a fresh decision to terminate within the policy. Thus no second contractual appeal was required. In any event, the proposed further grounds added very little and did not undermine incapability as the reason for dismissal.

• Employment Appeal Tribunal: appeal dismissed: [2023] EAT 97.
• Employment Tribunal, Watford: claims for unfair dismissal, wrongful dismissal, victimisation, race discrimination and disability discrimination dismissed in a judgment promulgated on 30 November 2021.