Background:

The claimant was employed as Long Haul Cabin Crew. He was dismissed by reason of incapability following a lengthy sickness absence. This decision was made in August 2017 to take effect in January 2018. The respondent continued to extend the termination date of the claimant’s contract until December 2018 when they declined to extend it any further.  The effective date of termination was determined to be 21st December 2018.

When the initial decision was made in August 2017 the claimant had been unable to fly for over a year. The Absence Management Policy of the respondent had been incorporated into the contract of employment of the claimant. The issue raised by the claimant was that the successive extensions was a deviation from the Absence Management Policy and was in effect a breach of contract.

Outcome:

The EAT rejected the argument that the extensions constituted a deviation from the Absence Management Policy and a breach of contract. They held that postponing a termination for the employee’s benefit was not prevented by the contract. On the point of wrongful dismissal, the Tribunal at first instance held that there had been no breach and it was not subject to the appeal here.

The EAT held that even if the postponements had been a breach of contract it would not necessarily mean that there would be an unfair dismissal. Rather, the issue for the Tribunal would be whether the employer acted within the range of reasonable responses. To this end, there was no unfairness to the claimant and the extensions were to his advantage.

The final argument of the claimant was that the lack of appeal from the decision not to extend in December 2018 meant there was an unfair dismissal. This was rejected. The Absence Management Policy gave an appeal on the decision to terminate.  The claimant had the possibility of a full and fair appeal, had actually taken it at the time, and it had been refused. It was found there was no unfair dismissal and the claim was dismissed.

Practical Guidance for Employers:

This case demonstrates how arguments can be made even when steps are taken to assist the employee. In this case, the extensions were made to assist and benefit the claimant yet the subject of the claim was that it was a breach of the Absence Management Policy. The EAT stuck to traditional principles of unfair dismissal asking whether the actions by the employer were within the band of reasonable responses. An interesting point is that no appeal was required from the decision not to extend his contract in December 2018 even though that constituted the effective date of termination. The question remains, if the claimant had been dismissed what the alternative in the interim period between that decision and the successive extensions was.

To read the full case, please click here: https://www.gov.uk/employment-appeal-tribunal-decisions/mr-b-garcha-singh-v-british-airways-plc-2023-eat-97