Multiple postponements of a decision to terminate employment

In Garcha-Singh v British Airways Plc, the EAT considered whether it was unfair for an employer to decide to terminate employment of an employee, but then postpone the effect of its decision on several occasions.

Overview of the Garcha-Singh v British Airways Plc case

The Claimant was a member of BA cabin crew and the relevant period of absence began in August 2016. By August 2017, he had not returned to duties and was issued with notice of termination of employment, such termination to take effect on 5 January 2018. He was, however, told that the date was “not set in stone”, that he would be supported in the interim, and would be referred to the Career Transition Service to enable him to explore alternative employment with the employer

.The Claimant undertook some ground duties and had completed the majority of a return-to-work course, so his termination date was extended to 31 March 2018 “to allow you time to demonstrate an ability to sustain your commitments on a flying roster”. There was then an issue with his ID and CRB Clearance which prevented him from flying, so his termination date was extended further to 30 June 2018.

The Claimant then went off sick and raised allegations of race discrimination. His termination date was extended further to enable the allegations to be investigated. The Claimant raised a grievance about this extension to his termination date (which was treated as an appeal against the decision). The termination date was extended further to 17 August 2018 to enable medical information to be obtained. Information indicated an improvement, so the termination date was extended again to 13 September 2018. A report received on 5 September 2018 indicated that he was fit for ground duties and would be fit for flying from 29 September 2018 and his termination date was therefore extended to 13 December 2018 “to allow you time to return to your role as cabin crew”.The Claimant then had further time off sick with a suspected stroke and stress-related illnesses. There were some without prejudice discussions and his termination date was extended to 21 December 2018. The Claimant indicated on 18 December 2018 that he considered himself fit to fly but offered no medical evidence and was unwilling to participate in an assessment. A decision was taken not to extend the termination date any further and his employment ended on 21 December 2018.

The Tribunal's decision on whether BA's postponements of a decision to terminate employment was an unfair dismissal

The Tribunal found that he was not unfairly dismissed and the Claimant appealed against the Tribunal’s decision.

The Claimant argued that the extensions to his termination date were a breach of the employer’s Absence Management Policy (AMP) and therefore a breach of his contract of employment.  The EAT held that whilst the AMP was contractual and did therefore form part of the Claimant’s contract of employment, the fact that the AMP did not expressly provide for the extension of a termination decision, did not mean that a decision to extend was a breach of the AMP.

Even if the decisions to postpone had been a breach of the AMP and therefore breaches of contract, it did not necessarily follow that this made the dismissal unfair. In determining a case of unfair dismissal, the Tribunal has to consider whether the procedure fell outside of a range of reasonable responses. Whether a contractual policy has been followed is a factor in this, but is not determinative in itself.

The EAT considered that the extensions were to the Claimant’s advantage and the EAT pointed out that in December 2018, his main complaint was that the termination date had not been extended further, so it did not agree with his subsequent complaint that it had been unfair to extend the date on previous occasions.

The Claimant complained that he had not been given the right to appeal against the termination on 21 December 2018 and should have been given this right since the circumstances had changed significantly since his last right to appeal against the decision to terminate his employment. The EAT concluded that the decision on 21 December 2018 was a decision not to postpone the termination, and was not itself a decision to terminate and there was not therefore a need for a right to appeal. He had been given a right to appeal against the decision to terminate his employment.

Whilst the Claimant argued that it was not fair for him to be living under the constant shadow of a dismissal, the EAT held that this was not sufficient to make the dismissal unfair and emphasised that the role of the Tribunal is to determine whether the decision of the employer is within a range of reasonable responses.

Read more about the Garcha-Singh v British Airways Plc case here.

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If you have any queries you would like to discuss regarding postponements after a decision to terminate employment, please contact a member of our Employment Law team.