The claimant is a pilot and joined the respondent in June 1998.  The issue leading to the proceedings was regarded as the ‘Hong Kong incident’ which occurred in September 2015.   The claimant was one of three pilots on board.   The claimant was familiar with the route and, as the flight takes 11 hours, the three pilots would take turns to have rest away from the flight deck.  Two pilots would thus remain on the flight deck. 

At London Heathrow the two other pilots advised the claimant that they had upset stomachs following a trip to India.  However, they checked in for duty thereby confirming they were fit to fly. During the flight one of the other pilots sought a toilet break but fainted when returning.  The pilot was taken care of by the cabin crew.   The claimant was on the flight deck and he requested that the third pilot join him on the flight deck to allow the fainting pilot to have a break.  4.5 hours into the flight the other pilot had to use the toilet but did not make it in time.  At this point the flight was flying over central Russia with the closest airport being Koltsovo Airport which is an airfield unfamiliar to the pilots.  The claimant decided that to land the plane there would have required an absolute emergency.   The claimant took the decision to continue to Hong Kong as weather conditions were good and he was familiar with the route. It must also be noted that the two other pilots did not request nor seek medical assistance through the MEDLINK system on board.   The claimant suggested that if they had then perhaps a different decision may have been made.  Later in the flight the other pilots were able to return and the flight made an uneventful landing in Hong Kong. 

There was an investigation into the flight with the claimant being suspended from flying. This largely related to the fact that he continued the flight alone.  The Senior Training Captain outlined that safety had been compromised and that it should not have been allowed to continue for 8 hours.  This related to issues such as what would have happened if the claimant had fallen unwell during the flight.  There were also suggestions about the claimant sleeping during the flight.  The claimant was subsequently allowed to return to flying yet he felt ostracised and there were numerous rumours surrounding the Hong Kong flight.  Some of the rumours involved the pilots being poisoned by the cabin crew, that a stewardess had been left alone on the flight deck and that the claimant had had sex with a member of the cabin crew whilst the other pilots were unconscious.  

These rumours continued and he felt that the respondent was out to get him.  At a simulation test, he was told he had failed and removed from active line operations.  He was not given any negative feedback.  He attended a second simulation which he also failed.  He was invited to a meeting where he was told that he would be summarily dismissed if he did attend.  The claimant was signed off sick for over a year but he received no support from the respondent.  The respondent sought to settle the case with the claimant yet the claimant rejected this.   As a result, he was subsequently dismissed on the basis of performance.   The Tribunal stated that the claims were unsubstantiated and undocumented.  Additionally, the Tribunal found the respondent’s position hard to decipher considering that many of their key witnesses were not freed to attend the Tribunal.  

As a result, the Tribunal found that the dismissal was unfair.  The claimant sought reinstatement but the Tribunal stated that it would not be appropriate in the circumstances.  As a result, compensation in the sum of £90,000 was ordered.  

Practical Lessons

This case demonstrates the importance of ensuring that proper process is followed in terms of evidence gathering and that rumours are not allowed to grow to the extent that they are the reason for dismissal action.  It was clear that the issues with the Hong Kong flight had quickly gone through many aspects of the company and this had led to some having issues with the claimant.  The Tribunal was not interested in whether the actions of the claimant were right on the flight, but whether he had engaged in misconduct or he was incapable of performing his role.  It was found that no evidence had been shown by the respondent of either.  The fact that there was no feedback given from the review was wholly detrimental to the respondent’s case and in any event there was a need for the respondent to offer training to ameliorate the issue rather than attempting to dismiss the claimant.  
https://www.gov.uk/employment-tribunal-decisions/mr-mark-lawson-v-virgin-atlantic-airways-2302784-2017