“6.2.4 The undisputed evidence was that where there had been sickness absence the Respondent would give notice of termination to end the employee’s employment, in this case the Claimant, and would then state that there was a right of appeal and/or that the date of termination may be moved if the Claimant could demonstrate that he had made efforts to return to work. 6.2.6 The Tribunal erred as a matter of law by failing to find that the Respondent failed to operate its own Sickness Absence Procedure, which did not provide for a process whereby the employment could dismiss or set a termination date which it would the[n] vary. 6.2.7 Despite the fact that the Tribunal found that the process was one that they had not experienced and that there was no reference to this quite unique approach in the Absence Management Policy the Tribunal stated at paragraph 151 that it could not say that it was not one which no reasonable employer could adopt. The Tribunal erred in law in its approach since a policy of dismissal first, then consultation is so against all employment law notions of fairness that any reasonable employer and Tribunal should find it to be unfair. 6.2.9 The Tribunal failed to give sufficient weight to the unfairness of repeatedly setting termination dates in circumstances where they had an adverse effect upon the Claimant’s health.”
“6.3.1 The Claimant was given notice of termination on of [sic] his employment contract on31st July 2018 and, appealed the dismissal via way of submitting a grievance on19th July 2018 . 6.3.2 The Respondent purported to follow through an appeal process, which was unfair in itself in the manner that it was carried out. 6.3.4 However, the Claimant’s employment was terminated on 21st December and the Claimant was not given a right of appeal against that termination. 6.3.5 The refusal of an appeal in respect of the termination on 21st December was unfair and the Tribunal should have so found since: 6.3.5.1 The grounds for an appeal on that date were completely different from the appeal that was made on19th July 2018 and decided on24th October 2018 . 6.3.5.2 The Respondent refused to permit an appeal from the termination on21st December 2018 and decided that the appeal decision of24th October 2018 was the only appeal to which the Claimant was entitled. 6.3.5.3 The Tribunal should have found that the refusal of an appeal rendered the termination unfair as an appeal decision on22nd October 2018 could not cover a termination on21st December 2018 , in respect of which there were different grounds/reasons for the appeal. The findings of the Tribunal at paragraph 154 that it was not persuaded that the dismissal was unfair because there was no subsequent right of appeal is a mistake of law and is, as a matter of fact and law, in this case, perverse: (i) Ms Caruso Lorenzo did not merely decide not to interfere with the termination date [paragraph 154]. She decided not to extend employment, as it had been on previous occasions by someone more involved in the process. (ii) The grounds of appeal against her decision were totally different to the earlier appeal and the Tribunal were wrong to take the view that the earlier appeal was sufficient. 6.3.6 If the Claimant had been permitted to appeal the termination on 21st December, he would have been able to demonstrate that he was fit for work and there was a likelihood that [he] would not have been dismissed. 6.3.7 The Tribunal directed itself (at §120) on the question of appeal to Gwynedd Council v Barratt & Hughes[2021] EWCA Civ 1322 (a case concerning rights of appeal in redundancy cases). The Tribunal was not directed to West Midlands Cooperative v Tipton[1986] IRLR 112 or Westminster City Council v Cabaj[1996] IRLR 399 . Had it been, it would have been bound to find that C was denied a contractual right of appeal which denied him the opportunity to show that R had a sufficient reason for dismissing him as at21 December 2018 . It thereby erred in law.”
“British Airways employees are required under the Terms and Conditions of their employment to maintain an acceptable level of attendance. If an employee fails to maintain an acceptable level of attendance it may become necessary to take action. British Airways will regularly monitor absence levels of all employees in order to address issues as they arise and aim to act reasonably at all times and taking account of all the circumstances including compliance with any relevant legislation in place.”
“Employees shall have the right to appeal against ... the decision to terminate employment in Section 4 of the policy. The appeal must be submitted in writing within 7 calendar days after the decision has been notified in writing to the individual, stating the reason for the appeal. British Airways will notify the employee of the date of the appeal hearing... The appeal will be heard within7 calendar days, of the receipt by British Airways of the employee’s written appeal notification. ... The employee will be informed in writing of the result of the appeal within 7 calendar days after the conclusion of the appeal hearing. The appeal authority may confirm or rescind the decision.”
“An employee’s employment will be terminated on the grounds of mental incapacity if: (i) reasonable adjustments cannot be made to the working environment of the employee’s current job; and (ii) within a reasonable period of time, the employee is incapable of undertaking a suitable alternative job or no suitable alternative [is] available. Line managers when considering terminating an employee’s employment on the grounds of Medical Incapacity must: • Write to the employee summarising the employee’s situation and explain the reason(s) why the line manager is considering terminating the employee’s contract of employment on the grounds of medical incapacity and invite the employee to a meeting to discuss the situation; • Seek advice from Policy and Casework Support; and • Ensure that guidance has already been sought from BAHS with reference to reasonable adjustments to the work environment, appropriate rehabilitation plan and suitable alternative jobs.”
“99. ...The Tribunal notes this appears to be inconsistent with the previous occasions when the Claimant returned to work after a long period of sickness absence, where that had been part of [a] planned return to work and began with a period of ground duties. No new medical information was offered. The Claimant must have known the Respondent could not simply roster him to fly and a BAHS assessment would be necessary. Furthermore, given the Claimant’s poor health at this time and the numerous unresolved workplace issues he said were operating as a barrier to his return, his self-declaration of fitness to fly is very surprising.”
“103. ...The Claimant’s rationale for refusing this assessment is difficult to understand. The fact of him being engaged in without prejudice negotiations would not act as a bar to him taking part in an occupational health process ... The Claimant’s approach, declaring himself fit in circumstances where he knew the Respondent would need to verify that through BAHS and then refusing the assessment, appears to be a holding measure, intended to avert dismissal but not result in an immediate return to flying. Furthermore, in light of the medical evidence we will discuss below, we do not accept the Claimant’s fitness to fly at this time.”
“147. Mr Duggan argued that the Respondent failed to apply its own absence management procedure or acted in breach of the same because this does not provide for a termination date to be set and then varied. It is certainly correct that there is no reference in the policy to dismissal dates being postponed. We note, however, that the Respondent’s policy does not expressly exclude the variation of such dates and it is apparent, not least because it was done in several other cases, that this is part of how the procedure is applied in practice. Mr Duggan said that such an approach was fundamentally unfair because it placed an improper burden on a sick employee to prove that they were well in order to avoid dismissal. Whilst that may appear harsh, in substance it is in the nature of any employee’s absence management scheme, that, once an employee has accumulated sufficient sickness absence to enter the process, then unless their health improves and they are able to return to work, they will likely face dismissal at some point. 148. In one respect the Respondent’s approach is different to that followed by many employers, who make enquiries, set review dates, warn that dismissal may follow and then in the event there is no improvement after several such meetings, set a dismissal date which is not changed (save unless there is a successful appeal). In this case, when the Respondent did set a dismissal date, it then scheduled further review meetings before the dismissal took effect, at which it considered whether to vary the termination. It is important to note, however, the Respondent did not move immediately to give the Claimant notice of dismissal as soon as he entered Section 4. The Claimant began a period of sickness absence on29 August 2016 . There were then repeated BAHS referrals and review meetings. Only on31 August 2017 (12 months later) when despite an improvement in his health the Claimant still had not flown, was a termination date set. At that point the Claimant was given notice to expire on5 January 2018 , which would be more than 1 year and 4 months after he became sick and ceased flying. 149. Having set a termination date, the Respondent’s intention was to review the position before the Claimant’s employment expired. This is, in the Tribunal’s experience, a somewhat unusual approach. Novelty does not, of course, mean there was unfairness. The Respondent’s approach did have the benefit that if there were a change, an improvement in health and prognosis for a return to flying, then this could be taken into account without the need for the Claimant to appeal. 150. The Claimant said he found this approach caused him a great deal of worry and stress. He likened it to be be[ing] put on ‘death row’. Mr Duggan was vigorous in arguing that the employee should not have the burden of proving his fitness to avoid dismissal. Our view is that this is a matter of form rather than substance. Long term sickness absence and not performing contractual duties will inevitably put an employee at risk of dismissal and the employer will not proceed fairly unless it clearly advises the employee of that prospect. This will almost inevitably be a cause of stress to the employee because the position will be that if their health does not allow a return to work then dismissal is likely to follow. The Claimant in this case was told that the termination date set might be postponed or revoked if it appeared likely or he were in fact able to return to his duties. 151. We cannot say the approach followed here, of setting a termination date and then putting that back to allow the Claimant a further opportunity to return to work was a procedure that no reasonable employer would adopt. 152. The Claimant was afforded a right of appeal against the decision to dismiss and exercised this. Notwithstanding the debate over whether this was a grievance or appeal, for the reasons set out above we found it was in substance an appeal ... The Claimant’s grounds of appeal were set out in his letter of19 July 2018 and developed at the hearing on5 September 2018 ... We were satisfied that the Claimant was given a full and fair opportunity to challenge Mrs Gupta’s decision, albeit much of what he set out did not directly address the decision she had made and her reasons for that. We were not persuaded the appeal was a whitewash, on the contrary and given a widely-drawn challenge to his termination, Ms Houghton made reasonable enquiries and came to a decision which was reasonably open to her. 153. Subsequent to the appeal and following a late extension of termination, whilst the parties had without prejudice discussions, the Claimant declared himself fit to return to flying ... Mr Duggan said the dismissal was unfair because the Claimant did not have a right of appeal against Ms Caruso Lorenzo’s decision, the grounds of which appeal would have been that she should have contacted the Claimant and told him that his employment would be terminated if he refused to speak with BAHS and / or that she should have postponed his BAHS referral and termination until after Christmas and / or pending the outcome of the without prejudice negotiations. 154. We were not persuaded the dismissal was unfair because there was no subsequent right of appeal, with respect to Ms Caruso Lorenzo’s decision. This latter decision was merely not to interfere with the decision to dismiss previously made by Mrs Gupta, against which the Claimant had appealed, unsuccessfully. The possible new grounds identified by Mr Duggan added very little to what had gone before, as they did not address the Respondent’s reason for terminating the Claimant’s employment, namely incapability due to sickness absence and because he had not returned to flying. The Claimant already knew his employment was about to terminate and did not need to be told this again. Whilst the Respondent might choose to extend employment to allow for without prejudice negotiations (this was the reason the Claimant gave for declining the BAHS assessment) it was under no obligation to do so. The Claimant had already exercised his right of appeal against the substantive decision to dismiss. 155. We are satisfied the Respondent followed a fair procedure.”
“161. The Respondent delayed before first setting a termination date and then postponed this several times. We are satisfied that the reason for the delay and the extensions in this case was in order to give the Claimant a further opportunity to demonstrate that he was able to fly. The Respondent was not rigid in its approach. When the Claimant reported he was undergoing treatment or a new investigation was to take place, his dismissal was postponed to await the outcome of this... 162. The Respondent made appropriate enquiries with respect to the Claimant’s health. He was assessed by the Respondent’s occupational health advisors on a regular basis. The information he provided was taken into account. When the Claimant advised of medical treatment he was undergoing, his employment was extended to allow for this and for any new information bearing upon his health and prognosis to be obtained. We are satisfied that reasonable enquiries were made. 163. The reason the Claimant wanted a further extension after21 December 2018 was not due to his health, rather it was because of the ongoing without prejudice negotiations. Whilst the Respondent might agree to extend for that purpose, it was under no obligation to do so. It was not unreasonable for the Respondent to treat without prejudice discussions as a separate track and not one that need hold up the proper application of its attendance management process. ... 165. In terms of whether the Respondent waited long enough before dismissing the Claimant, we remind ourselves that on this question as on all aspects of the decision to dismiss for incapability, the band of reasonable responses applies. Only if we conclude that no reasonable employer would have considered this period sufficient is the dismissal unfair for that reason. We cannot say the period waited in this case was too short or that a good reason for a further extension emerged prior to termination.”
“In any case where the employer has fulfilled the requirements of subsection (1) the determination of the question whether the dismissal is fair or unfair having regard to the reason shown by the employer – (a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.”
“116. In a case where the employee is incapable of doing their job by reason of ill health, the basic question to be answered when looking at the fairness of the dismissal is, in all the circumstances, whether the employer can be expected to wait any longer before dismissing and, if so, how long. 117. The employer will be expected to consult the employee about their ill health, the effect this has on their ability to do their job, how this might change in the future and any alternative role the individual might undertake instead: see East Lindsey District Council v Daubney[1977] IRLR 181 EAT. 118. Factors which may be relevant to incapability cases may include: 118.1 whether steps were taken to clarify the nature of the employee’s ill health, the prognosis and prospects for a return to work; 118.2 whether support could be provided which would assist with a return to work; 118.3 the effect the employee’s absence has on other employees in the business, the needs and resources of the employer; 118.4 whether there was any suitable alternative employment. 119. Where an employer’s conduct is alleged to have caused the employee’s ill-health that might require the employer to ‘go the extra mile’ in finding alternative employment for such an employee, or to put up with a longer period of sickness absence than would otherwise be reasonable, but it does not follow that a dismissal will be unfair; an employee in such circumstances will have their right to pursue a personal injury claim in the civil courts, which may include loss of earnings, the employment tribunal is trying a different issue, see McAdie v Royal Bank of Scotland[2007] IRLR 895 CA. 121. The function of the employment tribunal is to review the reasonableness of the employer’s decision and not to substitute its own view. The question for the employment tribunal is whether the decision to dismiss fell within the band of reasonable responses, which is to say that a reasonable employer may have considered it sufficient to justify dismissal.”
“35. It will be noted that, at the fairness stage under s 98(4), the question is whether the employer acted reasonably or unreasonably in treating its reason for dismissal as a sufficient reason for dismissal. The statutory focus is on why the employer dismissed the claimant and the ET is called upon to decide whether, having regard to that reason, to the procedure which the employer followed and to the other relevant circumstances, dismissal was within the range of reasonable actions open to an employer ... 36. As far as the effect of failure to allow an opportunity to appeal against dismissal on the fairness of that dismissal is concerned, the availability of an appeal and, if so, what that appeal entailed in terms of its scope is part and parcel of the procedure relating to the dismissal and therefore relevant to an assessment of the overall fairness of the procedure which led to that dismissal, see Taylor v OCS Group Ltd[2006] EWCA Civ 702 ,[2006] IRLR 613 ,[2006] ICR 1602 (CA). By the same token, the lack of an opportunity to appeal does not necessarily or automatically render a dismissal unfair. Whether it does will depend on the circumstances of the particular case. An unreasonable failure to provide a right of appeal may mean that the dismissal is unfair but it may not: see, for example, Moore v Phoenix Product Development Ltd (2021)UKEAT/0070/20 at [43] and [45] and Gwynedd Council v Barratt[2021] EWCA Civ 1322 ,[2021] IRLR 1028 ,[2021] ELR 747 at [36] – [40] and [38] in particular. For example, it might not in a case where the case for dismissal is particular compelling and the preceding procedural steps were thorough and left no room for sensible challenge. It would be for the ET to judge this question, applying the range of reasonable responses approach.”
“29. ... the relevance of the failure to entertain an appeal to which the employee is contractually entitled is whether the employee is ‘thereby’ denied the opportunity of demonstrating that the real reason for his dismissal was not sufficient. It is irrelevant to that question to consider whether the employer would have acted differently if he had followed the agreed procedure, for that is hypothetical. On the other hand ... it is relevant to consider whether the employer acted reasonably if he actually considered or a reasonable employer would have considered at the time of dismissal that to follow the agreed procedure would in the circumstances of the case be futile ... 30. Accordingly, on any remission the industrial tribunal would be bound to consider ... at least whether the failure of the chief executive to convene a meeting of an appeals tribunal consisting of three members of the city council impeded Mr Cabaj in demonstrating that the real reason for his dismissal was not sufficient and the reasons (if any) why the city council determined to dismiss Mr Cabaj without having observed the requirements of the disciplinary code. The industrial tribunal would then have to decide the three questions posed by section 57(3). For my part I do not think that it can be predicated that the industrial tribunal must inevitably answer all those questions in the sense which would justify the conclusion that the dismissal was unfair. They may but I do not think that they must.” (Emphasis added.)
“171. We are satisfied that on13 December 2017 and subsequently, when the Respondent told the Claimant that his termination was varied to a later date, this is something he agreed to. Later in the chronology, two of the extensions were proposed by the Claimant himself. 172. On all occasions, up to21 December 2018 , both parties continued to perform the contract and conducted themselves as though bound by the same, which evidences several agreements having been reached to vary the termination, by postponing it to take effect on a later date. 173. Having been given a longer period of notice in the first instance than was required under his contract of employment and the termination date later having been varied by consent, there was no breach of contract.”