Mr A Odujinrin v Ryanair DAC and Ryanair UK Ltd: 3203235/2022

EMPLOYMENT TRIBUNALS

Case No 3203235/2022

Between

Mr A OdujinrinClaimant

Ryanair DAC and Ryanair UK LtdRespondent

Before

Employment Judge Massarella

Members

Ms T. Jansen

Mr S. Woodhouse

In person for claimant

Mr J. Milford KC for respondent

Date 31 May 2026

JUDGMENT

[1]the claim of direct race discrimination at Issue 2(viii) is dismissed on withdrawal;

[2]the remaining claims of direct race discrimination fail and are dismissed;

[3]the following claims of victimisation succeed against the First Respondent: Issue 2(v)/6(i) (specifically in relation to the terms in which the Claimant’s grievance was rejected); Issue 2(vi)/6(i); and Issue 6(iii);

[4]the remaining claims of victimisation against both Respondents fail and are dismissed;

[5]the Claimant’s dismissal by the Second Respondent was procedurally unfair;

[6]had there been no unfairness, there is a 100% chance that the Claimant would have been fairly dismissed; consequently, there will be no compensatory award;

[7]the Claimant contributed to his dismissal by his own conduct and the basic award is reduced by 75%;

[8]the claim of wrongful dismissal fails and is dismissed.

REASONS

[1]The Claimant was employed by Ryanair as a pilot between 18 February 2019 and 8 May 2024.

[2]The claim form was presented on 19 May 2022, after an ACAS early conciliation period between 7 and 21 December 2021. The claims were originally of direct race discrimination, victimisation and trade union detriment. The Claimant made four applications to amend his case; there were five preliminary hearings (‘PH’).

[3]The first application to amend was made on 4 October 2022. At the first PH on 13 October 2022, EJ Frazer allowed the Claimant to add further allegations of victimisation relating to events after the presentation of the ET1 (subject to time limits). He vacated the previously listed four-day final hearing in April 2024 and directed that it be re-listed for a six-day hearing.

[4]The Claimant made his second application to amend on 24 March 2023. At the second PH on 27 April 2023, EJ Beckett allowed the Claimant to add two further victimisation complaints (by consent). The Claimant withdrew his claim of trade union detriment, which was dismissed. The Judge listed the final hearing for eight days in October 2024.

[5]The Claimant was dismissed on 8 May 2024.

[6]On 5 August 2024, the Claimant made his third amendment application, seeking to add claims of unfair and wrongful dismissal, together with further victimisation allegations arising out of the disciplinary process which led to his dismissal, the majority of which were in time. The October 2024 final hearing was vacated.

[7]At the third PH on 28 April 2025, EJ Lewis made case management orders and listed a further PH for 3 June 2025 to address any further amendment application and to finalise the list of issues.

[8]On 12 May 2025, the Claimant made his fourth amendment application to add a further five allegations of race discrimination. At the fourth PH on 3 June 2025, EJ Elgot refused the application. She ordered the parties to agree a final list of issues by 26 June 2025 (which they did) and set the case down for a listing hearing.

[9]At the fifth PH on 18 July 2025, EJ Hook listed the final hearing for seventeen days between 9 February and 3 March 2026 and made further case management orders. In his written summary he stated that the final hearing would proceed by video unless either party applied for an in-person hearing, that issue not having been canvassed during the hearing.

[10]By an order sent out shortly before the hearing, EJ Beyzade gave the Respondent permission to engage professional transcribers to produce a transcript of the final hearing.

The hearing

[11]The first day of this final hearing took place by CVP; the Tribunal decided (on the Respondent’s application) to convert the rest of the final hearing to an in-person hearing for the reasons given orally at the hearing. We then adjourned to begin reading into the case.

[12]On Day 2, the Tribunal continued to read in the morning; the parties attended in person in the afternoon. The Tribunal addressed procedural and organisational matters. Observers were admitted, and guidance given. We then dealt with the transcription arrangements, including our concerns about the extensive recording equipment which had been installed without the Tribunal’s permission. I explained that the official record of the hearing was the Tribunal’s own audio recording and notes; the commercial transcript, while it might be useful, had no formal status; I would not review or approve any part of it (as I had been asked to do).

[13]I clarified that the hearing was listed for liability only, although evidence and submissions on Polkey and contribution would be heard at this stage. I raised concerns about the adequacy of the list of issues: the alleged discriminators had not been identified; the protected acts were not specific. The parties provided an agreed, revised list the following morning, to which further amendments were made during the hearing. The sub-headings in the body of this judgment set out the claims in their final form. The proposed trial timetable was discussed, including the order of witnesses.

[14]The Tribunal then heard submissions on the outstanding applications: the Respondent’s application to call an additional witness (Mr Eoin Ryan); its application for permission to include further documents in the bundle; its application for specific disclosure (withdrawn in light of an undertaking given by the Claimant); and the Claimant’s application further to amend his case to add claims of whistleblowing detriment and automatically unfair dismissal.

[15]At the start of Day 3 the Claimant raised objection to the private transcription service. I observed that permission had already been granted by another judge and that no change of circumstances justified varying that decision; the intrusive recording equipment (which was one of the grounds of the Claimant’s objection) had been removed.

[16]The Tribunal then gave its decision in relation to two of the applications we had heard the day before: for the reasons given orally at the hearing we permitted the Respondent to call Mr Eoin Ryan and we refused the Claimant’s application to amend his case.

[17]We then addressed the Respondent’s late-disclosed documents. The Claimant argued that the volume and timing amounted to trial by ambush. The Respondent explained that many documents were familiar operational materials, some of which had been disclosed in December 2025; others were triggered by new allegations in the Claimant’s witness statement. The Tribunal criticised the Respondent for failing to disclose some of the documents earlier but, for reasons given orally at the hearing, we admitted the documents: they were all disclosable, some of them assisted the Claimant.

[18]The Claimant had had most of the material since December but had chosen not to review it. To minimise any prejudice to him, we decided to delay the beginning of his evidence, releasing the parties for the rest of Day 3 and the morning of Day 4, giving the Claimant more time to review the newly admitted documents.

[19]The Claimant then produced additional documents of his own, which he wished to rely on. While not accepting their relevance, the Respondent did not object to their inclusion in a supplementary bundle.

[20]On Day 8, the Claimant applied for disclosure of the identities (which had been redacted) of further pilots whose command upgrade processes were paused following no-show absences (for which, see below at para 64 onwards). We decided that limited disclosure was necessary and proportionate to allow him to test his case that no-show codes operated as a proxy for suspected strike participation. We directed the Respondent to identify, by numerical code, any individuals identified as no-shows on the list at page 370 of the bundle and included in the recommended list at page 349, and to disclose the fourth of the four orange-coded individuals on page 349.

[21]We had a bundle of documents (2176 pages), a separate applications bundle (172 pages), the Claimant’s supplementary bundle (43 pages) and a bundle of witness statements (230 pages). Given the volume of material put before us, we told the parties that we would only have regard to documents to which we were taken during the hearing. For the same reason, we cannot refer to every point made by the parties in what is already a very long judgment; the fact that we do not refer to something does not mean we did not have regard to it.

[22]We heard evidence from: 22.1. Mr Ademilola Odujinrin (the Claimant; Ryanair First Officer/Captain); and, on behalf of the Respondent, from: 22.2. Mr Steve McGrath (Base Captain, Stansted); 22.3. Mr Declan Ryan (Flight Operations Base Manager, Stansted); 22.4. Mr Craig Baxter (Base Type Rating Instructor/Examiner); 22.5. Mr Ross Dickie (Chief Instructor – Simulator); 22.6. Mr Diarmuid Rogers (Head of Flight Operations Base Management); 22.7. Mr Kevin Mara (Deputy Chief Pilot - Regulatory Compliance); 22.8. Mr Craig Hope (Regional Base Captain); 22.9. Mr Andrew Elbert (Deputy Chief Pilot - Line Operations of Ryanair DAC); and 22.10. Mr Eoin Ryan (Type Rating Examiner).

[23]The Claimant was cross-examined for four and a half days; he cross-examined the Respondent’s witnesses for five days. We released the parties on Day 14 to finish their closing submissions, which we heard on the afternoon of Day 15. Both representatives provided helpful written submissions - supplemented by oral submissions - which the Tribunal has taken into consideration. We reserved our judgment and deliberated on the remaining five days of the original listing plus two additional days.

[24]In closing submissions, Mr Milford (Counsel for the Respondent) pointed out that although the Claimant was employed from 18 February 2019 to 1 December 2022 by Ryanair DAC (the existing Respondent to the proceedings), after that date he was employed by Ryanair UK Ltd (another company in the group). By consent, Ryanair UK Ltd was joined as Second Respondent.

[25]There was a delay in finalising and sending out this judgment, which was caused in part by the competing demands of other cases and, in part, by the volume and complexity of the material before the Tribunal. The Tribunal apologises for this delay.

Findings of fact

[26]The findings of fact set out below are unanimous and made on the balance of probabilities.

[27]Ryanair DAC (the First Respondent) is the main Irish-registered airline entity within the Ryanair Group, headquartered in Dublin; it operates the majority of the Group’s European network and employs pilots under Irish Civil Aviation Authority (‘CAA’) issued licences. Ryanair UK Ltd (the Second Respondent) is the UK-registered subsidiary created to operate UK-regulated flying post-Brexit; it employs pilots with UK licenses and runs UK-based operations under the supervision of the UK CAA. In this judgment we refer to the companies collectively as Ryanair. The Claimant’s employment

[28]The Claimant, who is Black, commenced employment with Ryanair as a First Officer on 18 February 2019, based at London Stansted airport. The contract of employment contains a mobility clause (at para 6.1): ‘You will be located principally at London-Stansted Airport and at such other place or places as the Company reasonably requires for the proper fulfilment of your duties and responsibilities under this Agreement. It is a condition of your employment that you comply with any such requirement. This would include, for the avoidance of doubt, transfer to any of the Company’s bases without compensation. It must be understood that should you be transferred to another base you will be paid in accordance with the prevailing salary and flight pay system at that base.’ The background of industrial action and litigation

[29]On 13 days between 22 August and 27 September 2019, members of the British Airline Pilots’ Association (BALPA) took strike action over pay and working conditions.

[30]BALPA later brought proceedings alleging that Ryanair had victimised pilots for participating in the strike action by withdrawing their concessionary travel benefits for 12 months (Ryanair DAC v Morais & Others

[2022] ICR 565

EAT,

[2025] ICR 863

CA). The claimants in those proceedings alleged that this was detrimental treatment for taking part in trade union activities, contrary to section 146(1)(b) of the Trade Union and Labour Relations (Consolidation) Act 1992, and that Ryanair had breached reg 3(1) of the Employment Relations Act 1999 (Blacklists) Regulations 2010 by creating a prohibited list of those who had participated in union activities.

[31]The ET held that taking part in a strike formed part of the activities of a trade union for both provisions, although industrial action would only be protected under s.219 if ballot requirements were satisfied. It concluded that Ryanair was barred from arguing that the strike was unprotected because it had previously failed in separate proceedings to challenge the ballot’s validity. The EAT dismissed Ryanair’s appeal, holding that participation in a strike is unambiguously a trade union activity for the purposes of both s.146 and reg 3, and upholding the finding of abuse of process. Ryanair’s appeal to the Court of Appeal failed. The Command Upgrade process

[32]The Command Upgrade (‘CU’) process is Ryanair’s promotion pathway for pilots seeking progression from First Officer to Captain.

[33]The Route to Command Explanation and Guidance provides that a pilot must have the following flying experience before s/he can undergo CU training: 2900 hours in total; 1500 hours on CS-25 type aircraft; 800 hours on B737-800 in Ryanair.

[34]The progress of all First Officers is tracked centrally through the CU Module; this system provides a uniform method for monitoring experience and readiness. In practice, although the eligibility criteria require the experience thresholds to have been met, the process commonly begins to move forward as a pilot approaches the thresholds.

[35]The first formal stage is a three-module e-learning programme, which must be completed before any practical steps are taken and which generates an electronic certificate.

[36]A Coaching Flight then takes place, providing practical exposure to the expectations on Captains and helping to identify any developmental needs before the formal Assessment Flight.

[37]According to the Guidance the approval of the Base Captain is required before a First Officer moves on to the coaching phase. The Guidance provides that the Base Captain will consider ‘general attitude’, ‘punctuality’ and ‘general behaviour in the workplace’ at this stage. No specific thresholds are identified which would disqualify a First Officer.

[38]We accept Mr McGrath’s evidence that at Stansted, once a First Officer had the required flying hours and had completed the necessary e-learning, there was a presumption that the candidate would have his approval unless he expressly indicated otherwise to Mr Craig Baxter (Base Type Rating Instructor, Stansted, who managed the line training of pilots).

[39]The Assessment Flight follows the Coaching Flight. This two-sector evaluation tests technical competence and must be passed at a minimum grade before further progression.

[40]There then follows an interview; progression to this stage requires a positive recommendation from the Base Captain.

[41]Once recommended, the First Officer attends the interview, which examines technical knowledge, non-technical skills such as communication and teamwork - referred to as CRM (Crew Resource Management) - judgement, and overall suitability for command.

[42]Following a successful interview, the Training and Standards department informs the pilot which bases are available for allocation. Once a base has been agreed, the CU Training Agreement is issued. The pilot must sign that agreement before attending the CU course, which lasts approximately three months and includes ground school, simulator training and supervised line flying.

[43]The process concludes with a final line check. If the pilot meets the required standard, a formal recommendation for promotion to Captain is made and a new contract of employment is issued. Suspension of CU before and during the Covid-19 pandemic

[44]CU courses were reduced from June 2019, in part because of the delays to the rolling out of Boeing 737 Max aircraft which affected the whole industry. The pandemic then caused the CU programme to be suspended altogether from April 2020.

[45]The suspension of courses lasted until around April 2021, by which time the cohort of eligible First Officers awaiting the opportunity for promotion was very large. More than 200 First Officers had been promoted in 2018 and the same number in 2019. There were no promotions between March and September 2020; for the rest of the year there were around a dozen. In 2021 only six pilots were promoted before the Claimant was taken out of the process in September 2021 (for which, see below at para 68), even though many First Officers had accumulated the required hours and would ordinarily have progressed. The Claimant’s experience

[46]The Claimant contends that he was an unusually experienced First Officer whose total flying hours made it ‘incomprehensible’ that he remained in that grade. He says that the hours he had accumulated, including those gained before joining Ryanair, meant that he was effectively overqualified and should have progressed through the CU process more quickly. He says that this was also the view of his colleagues.

[47]On the evidence we have seen we find that the Claimant’s accumulated flying hours were not exceptional within the cohort of pilots promoted between November 2022 and February 2023; many had comparable or higher totals; the Claimant was within the normal range; the determinative factor was Ryanair flying hours, not including hours accumulated elsewhere. What is clear, however, is that the Claimant had a high estimation of his own abilities. Communication with the Claimant about progression

[48]On 18 September 2019, Mr Baxter emailed the Claimant explaining that CU training was on hold but setting out the process to be followed once it resumed. Meanwhile, he encouraged the Claimant to complete the relevant e-learning courses. The Claimant did this within a few days.

[49]On 27 February 2020, the Claimant completed a CU coaching flight (although he had not yet reached 800 hours of Ryanair flying). Shortly afterwards the UK was put into lockdown. When the hold on CU courses was lifted in April 2021, the Claimant had 788 Ryanair flying hours. The no-show on 29 December 2020

[50]A no-show is when a pilot fails to report for duty or to answer crew-control calls while on standby. Such absences have operational consequences: crew control draw on a small pool of standby pilots who must report within an hour; once that pool is depleted, it may need to contact pilots on days off or re-sequence duties, causing knock-on delays. A delayed first rotation can disrupt the aircraft’s entire programme and, in serious cases, lead to cancellations or multi-hour delays exposing the airline to compensation claims. That is reflected in the Rough Guide, which states: ‘Because absence or lateness causes major problems to our operation (e.g. in the case of flight crew it may cause flight delays), good attendance and punctuality are essential in all areas of the Company. Attendance records will be considered when assessing suitability for permanent employment and promotion. While it is accepted that circumstances may arise when absence from work is unavoidable, it is essential that the following procedures are strictly adhered to when unavoidable absence occurs: o Failure to notify the Company by telephone (text messages/emails etc. are not permitted) of your absence as soon as you are aware that you will be unable to attend work and at least two hours prior to the start of your working day or shift will result in your absence being classified as “unauthorised” or a “no show”. Flight crew must notify Crew Control of their absence. o Unauthorised absence or “no shows” will be unpaid and no payments under the Ryanair Sickness Benefit Scheme will apply. If the reason provided for the absence is deemed unacceptable by the Company, the absence will be classified and recorded as “unauthorised”.’

[51]In his evidence, the Claimant sought to play down the seriousness of no-shows, albeit inconsistently: at one point he described them as ‘common’, then that they happened ‘all the time’, later stating that they happened ‘from time to time - I wouldn’t know the frequency’. He suggested that another First Officer, Mr Levart, told him that he had had three no-shows during training. The Respondent produced its absence record for Mr Levart, which does not contain any no-shows. The Claimant eventually accepted in cross-examination that noshows were treated very seriously by Ryanair.

[52]On 29 December 2020, the Claimant missed a duty. Mr Declan Ryan invited him to a meeting on 6 January 2021, which took place under the disciplinary procedure. The Claimant explained that he had not realised he was rostered for a home standby duty on 29 December. He said his roster for the period 27-31 December had originally consisted entirely of flight duties but was later amended to a mixed pattern, and he accepted that he must have confused the days. He told Mr Ryan that this was an oversight, expressed regret and said he fully appreciated the seriousness of the absence. He added that he did not want a no-show to appear on his employment record.

[53]Mr Ryan sent the Claimant the outcome of the hearing in a letter of 14 January 2021: ‘A No show absence is a serious issue and your actions on this occasion placed undue pressure on our customers, our operation and on your colleagues, who had to cover your shift at short notice. Good attendance and punctuality as well as strict adherence to company policies and procedures are essential in the airline industry to avoid disruption to our customers. Pilots in Ryanair enjoy a stable 5 day on 4 day off roster and accordingly we expect all Pilots to fulfil the most basic element of any employment contract, to report for duties. Your actions on 29th December 2020 fall below the standards expected of a pilot in this airline and must not be repeated, otherwise disciplinary action will result.’

[54]By not imposing a formal disciplinary sanction and instead issuing a reprimand and an informal warning, Mr Ryan acted leniently. He did not remove the noshow marker from the Claimant’s employment record because it accurately reflected the reason for absence.

[55]At the hearing before us, the Claimant sought to blame this incident on something which happened two days earlier. During a Stansted–Lanzarote flight he said that a training Captain burped repeatedly towards him, including shortly before landing, and on another occasion struck him lightly on the head and called him ‘baldy’. The Claimant said he found this behaviour ‘degrading’ and suggested that the emotional impact of the incident affected his concentration and sleep and may have contributed to his failure to set his alarm. We find that explanation fanciful. Even if the account is accurate, the incident was minor and was unlikely to have been the cause of the Claimant’s failure to set his alarm; he did not mention the supposed connection at the time. It is significant because it reflects a pattern of the Claimant seeking alternative explanations for his own errors and/or seeking to pass the blame on to others. Further steps towards CU

[56]On 20 May 2021, the Claimant met Mr Baxter online to discuss resuming the CU process after the pandemic. In cross-examination he said that Mr Baxter told him he had checked his records and that he was ‘fine to start again’. We find that this related only to the technical criteria, for which Mr Baxter had responsibility.

[57]On 9 August 2021, the Claimant completed a second CU coaching flight; his original February 2020 coaching flight was no longer valid because it had taken place over a year earlier. In his witness statement (at paragraph 35), the Claimant said this: ‘This was necessitated by the fact that my initial coaching flight had taken place approximately sixteen months earlier and, in accordance with the training department’s policy, such flights were deemed valid for a period of only three months.’

[58]We note that the Claimant accepts the principle (which he disputed elsewhere) that such flights had an expiry date; indeed, he identifies a shorter validity period than the Respondent relies on (six months).

[59]There is no evidence that Mr McGrath was consulted about, or had any input into, the decision to offer the Claimant a coaching flight; we find that he did not specifically check the Claimant’s attendance record at this point.

[60]The Claimant was then offered an assessment flight on 20 August 2021. On 19 August 2021, his father died. Nonetheless he completed and passed the flight, believing that this positioned him to proceed to interview. Mr Eoin Ryan

[61]The Claimant’s says he developed a friendly relationship with Captain Eoin Ryan after they first flew together in March 2020, when he says Mr Ryan expressed admiration for the Claimant’s experience and professionalism and thereafter acted as an informal mentor. The Claimant helped Mr Ryan with some decking work at Mr Ryan’s home and discussed his career development with him and concerns about his treatment within Ryanair.

[62]Mr Ryan accepted that he had flown with the Claimant, that their interactions were cordial and professional and that the Claimant had helped him with the project at his home. However, he rejected the characterisation of the relationship as a mentoring one, describing it instead as no more than normal, friendly interaction between colleagues. Importantly, Mr Ryan did not accept that he had communicated to the Claimant any assurances about his progression.

[63]The Respondent had not originally intended to call Mr Eoin Ryan but did so when it saw from the Claimant’s witness statement that he was attributing to Mr Ryan statements which Mr Ryan denied having made. Mr Ryan then provided a witness statement specifically to address those points. His evidence was measured, careful, and confined to matters within his own knowledge; we found him to be a credible witness. The decision not to invite the Claimant to interview in August 2021 (Issues 2(i), 2(ii) and 6(i))

[64]On 23 August 2021, after the Claimant passed the assessment flight, Mr Baxter emailed Mr McGrath seeking Base Captain approval for the Claimant to progress to interview. The next day, Mr Robin Tormey (training administrator) emailed Mr McGrath to say he was taking over the CU process, reporting that several First Officers, including the Claimant, had completed assessment flights and asking whether he could invite them to interview. Mr Baxter replied that he and Mr McGrath were reviewing candidates and would respond by the end of the following day.

[65]On 25 August, Mr Baxter sent Mr Tormey a list of pilots, including the Claimant, stating: ‘the following are waiting for BC approval. I would say they could be planned but don’t send out the invitation until the green light is confirmed [...] I’m working through the backlog so should be ahead of it next week.’

[66]On 27 August 2021, the Claimant says Mr Eoin Ryan phoned him to say the Base Captain had recommended him for interview and that it had been rostered, subject to change because of his father’s funeral. Mr Ryan denies saying this and denies that he would ever inform a candidate of Base Captain approval, as he had no authority to do so. The Claimant did not mention this conversation in his grievance, grievance appeal or amended ET1; it appeared for the first time in his witness statement and was not put to Mr Ryan in cross-examination. We accept Mr Ryan’s evidence.

[67]An interview for the Claimant did appear on the roster for 8 September 2021. However, we accept Mr Baxter’s evidence that this was an administrative error and that Mr McGrath had not approved an interview at that stage, for reasons explained below.

[68]On 1 September 2021, Mr McGrath changed the Claimant’s status to ‘not recommended’, selecting from a drop-down menu the category ‘Base performance: Company Safety Culture, SOPs and organisational factors’. On 4 September 2021, returning from his father’s funeral, the Claimant saw the interview had been removed from his roster.

[69]His case is that he was removed because the Respondent believed he had participated in the 2019 strikes (which he had not). He further alleged that, between 5 and 8 September 2021, Mr Eoin Ryan asked if he had been a 2019 striker, explaining management had decided not to promote strikers, and told him that Mr McGrath had ‘withdrawn support’; according to the Claimant, Mr Ryan also said that concerns had been raised about their friendship, and that ‘if I were Irish being friends with Mr Ryan would not have been a problem’. Mr Ryan denied saying any of this; specifically, he knew nothing about strikers or any targeting of them. The Claimant did not challenge him on this in crossexamination.

[70]The Claimant did not mention this alleged conversation in his informal complaint of 21 September 2021 (see below at para 81). Rather, he wrote: ‘I then called my Base TRE Captain Eoin Ryan on 6th September 2021 and was informed that I needed to speak to the Base Captain.’

[71]The Claimant accepted he had not raised these allegations contemporaneously or in his pleaded case. He also accepted there was no documentary evidence that the Respondent believed he had been a striker and that his contention that no-shows were used as a proxy was an inference rather than based on any record. We accept Mr Ryan’s evidence that he did not say the things attributed to him.

[72]Mr McGrath denied that his decision was influenced by the Claimant’s friendship with Mr Ryan or any suspicion of strike participation. His explanation was that, following the pandemic, there were more eligible First Officers than CU places and priority was given to those with clean attendance records. The Claimant’s December 2020 no-show was taken into account. The Claimant accepted in cross-examination that Mr McGrath gave him this explanation around 8 September 2021. Mr McGrath said he would be considered in future but could not say when.

[73]The Claimant now accepts that race was not a factor in the initial sequencing decision. He contends instead that he was targeted because of an erroneous belief that he had gone on strike in 2019, and that the failure to reverse that position - once it became clear he had not - was motivated by race. He says Ryanair used no-shows as a ‘proxy for’ strike participation and delayed CU progression accordingly. He originally brought a trade union detriment claim but later withdrew it.

[74]The Claimant also believes Ryanair extended the catchment period for noshows to three years rather than the usual 12 months to conceal unfavourable treatment of strikers, and that this occurred after his statistical analysis in 2024. Chronologically that is incorrect: Ryanair referred to the three-year period at paragraph 4.14 of its amended grounds of resistance, lodged in May 2023.

[75]No-shows would have been an imperfect proxy for strike days, as they also occurred on other dates; the Claimant’s no-show on 29 December 2020 was not on a strike day. The unredacted table of pilots who were or were not recommended for CU at Stansted between September 2021 and September 2022 shows that, of fifteen not recommended, fourteen had a no-show or other attendance issue. None of the recommended pilots had a no-show. The Claimant was therefore not treated less favourably than other pilots with a noshow.

[76]The no-shows relied on occurred across a range of dates: some coincided with industrial action in late August and September 2019, but others occurred outside that period, including May 2019, May 2021 and 2022. The Claimant accepted that more than half of the pilots listed had not been absent on strike days. The table also included pilots of different nationalities and backgrounds, whose only common feature was an attendance issue rather than any protected characteristic or strike participation.

[77]If Ryanair had been targeting strikers through no-shows, one would expect BALPA to have challenged that. The Claimant was represented in his grievance by Mr Morais of BALPA, who raised no such concern; on the contrary, he said that ‘we don’t disagree with, you know, the selection process criteria used’, criticising only the timing of its application (see below at para 97).

[78]In the email of 21 September (below at para 81), the Claimant wrote: ‘I have never been late for a flight, called in sick or participated in any strike action till date. Indeed I worked during the strike back in 2019 and Declan Ryan made a note of all pilots that worked during this time.’

[79]This suggests that the Claimant believed Mr Ryan must have known that he had not gone on strike; he expressed no concern that he was being penalised for striking.

[80]We accept Ryanair’s evidence: there was no cogent evidence that it targeted strikers in applying progression criteria; attendance was a legitimate filtering criterion at a time of oversubscription and was consistent with its policy. Informal complaint

[81]On 21 September 2021, the Claimant emailed Captain Senan O’Shea, Head of Training, to complain informally about the cancellation of his CU interview. He set out the background and the fact that his no-show in December 2020 was being relied by Mr McGrath on as a reason not to interview him. He explained that the no-show in December 2020 had been investigated at the time, accepted as an honest error and resolved without disciplinary action or any indication that it would affect future progression. He expressed surprise and concern that this incident was now being relied upon retrospectively, without any written policy or prior warning, to suspend him from the CU programme after he had already completed further coaching and assessment flights. The grievance dated 15 October 2021 (Issue 5(i))

[82]On 15 October 2021, the Claimant submitted a formal grievance by entering it into an online system. However, the grievance was not forwarded to HR until 2 November 2026. Whether that was a system glitch or human error, there was no evidence that HR or management was responsible for the delay.

[83]In his grievance the Claimant wrote: ‘The crux of my grievance is that the reason given for my expulsion from the command process after starting it for the second time is not written in our manual and appears inadequate. I have been singled out and removed from the process without a formal notice. There is no known precedence for my treatment. My attendance record was known to the training department before I resumed the command program and no issue was raised at the time. Consequently, I believe I have received less favourable treatment, bullied, treated unfairly and not provided with equal opportunities. I attempted to speak to the Equality Officer on +3531 945 1401 without any luck as the number is unreachable and every attempt to resolve the matter amicably has been unsuccessful. It is not my intention to bring my airline into disrepute but it would appear in this case that prima facie a personal decision has been applied to deprive me of the same opportunities afforded to others.’ Dr Orton (Issues 2(iv) and 6(i))

[84]On 29 October 2021, the Claimant was signed off sick by his GP; he did not return to work until 7 February 2022.

[85]He contacted the peer support programme, a confidential service. In Ryanair it is organised by Mr Gerry Conway, contracting through his own company; he had previously been, but was no longer, an employee of Ryanair. Mr Conway suggested that the Claimant get in touch with Aviation Medical (‘AM’), an occupational health company.

[86]The Claimant wrote to AM on 1 November 2021 explaining that he had been referred to Dr Orton (of AM) after being abruptly stopped from continuing his CU training without notice, which had caused him stress and fatigue. He said the company had given him no explanation despite his attempts to seek one. He added that ‘BALPA got involved and expressed great concern as they have never heard of such treatment especially considering that it was unprovoked.’

[87]The Claimant saw Dr Orton on 3 November 2021, who signed him unfit to fly ‘due to burnout syndrome’.

[88]The Claimant alleges that, in consultations with Dr Orton in November and December 2021, the doctor told him that Ryanair was ‘very upset’ because he had been in contact with BALPA and ACAS and warned that he should ‘drop the stick’ or Ryanair would ‘just get rid of’ him if he antagonised them further. He says Dr Orton advised that ‘all will be well’ if he kept quiet and stopped speaking to BALPA and ACAS, and that when he complained about the unfairness of his treatment, the doctor replied: ‘well life is never fair’.

[89]The allegation rested solely on the Claimant’s account and was not supported by any contemporaneous document. The peer support and aviation medical processes were confidential by design. The Claimant accepted in cross-examination that it would have been unethical and contrary to EU aviation medical regulations for Dr Orton to discuss the Claimant with Ryanair or to convey warnings allegedly emanating from senior management. We find it inherently implausible that Dr Orton would have made the alleged statements. We also note that no individual alleged discriminator has been identified at any point. We accept the Respondent’s submission that the Claimant’s own email to AM (above at para 86), which referred to union involvement and stress caused by management decisions, provided a more likely explanation for any discussion with Dr Orton about workplace conflict.

[90]We find that Dr Orton did not make the remarks alleged by the Claimant. The grievance hearing on 11 November 2021 (Issue 5(ii)

[91]On 11 November 2021, the grievance meeting took place, conducted by Mr Jason Whiteside. Mr Whiteside no longer works for the Respondent. Ms Cooper was present; Mr Morais attended as the Claimant’s BALPA representative.

[92]The Claimant made a covert recording of the hearing. He did not disclose the existence of this (and later) recordings to Ryanair until after his dismissal.

[93]The Claimant’s contract provided: ‘23.4 You are expressly prohibited from making any video, audio, electronic or other recording of any aspect of the company’s operations whilst on duty or off duty without the express prior written permission of the Company. 23.5 […] Failure to comply with the above provisions shall be considered gross misconduct and you shall be subject to instant summary dismissal. In addition, the Company will initiate legal proceedings against you and/or any relevant third party seeking damages (including exemplary damages) for defamation, libel, breaches of confidentiality and invasion of privacy and furthermore shall pursue you for the legal costs of said proceedings.’

[94]The Claimant confirmed in cross-examination that he was aware of the prohibition; he accepted that making such recordings was a serious breach of trust.

[95]The Claimant maintained that covert recordings were necessary for ‘selfprotection’. At all meetings (save for the dismissal outcome and appeal meetings, which he chose to attend unaccompanied), he was accompanied by a representative and sometimes a solicitor, who could and did take notes (though these were not disclosed in these proceedings). He could also have produced his own summary or proposed amendments to the Respondent’s notes if he considered them inaccurate or incomplete. He did none of those things. We find that covert recordings were not necessary for self-protection or any other reason.

[96]The Respondent’s notes of the grievance meeting record how the Claimant characterised his treatment; there was no mention of race being a factor: ‘Ademilola further advised that he made a mistake in December 2020 which resulted in the ‘no show’ and he felt that he was being treated in the same way as someone who had a deliberate ‘no show’. Ademilola advised that the selection process had to be fair and reasonable. Ademilola advised that he wasn’t given any formal notice that he was being removed from the process and believed he was being treated differently to everyone else. Jason asked Ademilola how he was being treated differently to everyone else. Ademilola advised that he was unaware of anyone else who was removed from the process.’

[97]The Claimant contended that Mr Whiteside adopted a dismissive tone at the meeting and suggested there was ‘no guarantee’ that he would have passed the CU. The Respondent’s notes record Mr Whiteside saying: ‘Jason advised that there are many applications for command upgrade and there was never a guarantee that Ademilola would successfully complete the process. Jason further advised that although Ademilola was not successful during this round of command upgrade, it did not mean that he wouldn’t be considered in future processes.’ Mr Morais accepted that there was no guarantee of success but maintained that the training department ought to have reviewed the Claimant’s attendance record before he was permitted to commence the CU process.

[98]We observe that, at the point when the Claimant did the two coaching flights, the Respondent had not yet decided to adopt attendance/no-shows as a criterion for sequencing the progression of First Officers.

[99]On 7 December 2021, the Claimant contacted ACAS. The grievance outcome (Issues 2(iii) and 6(i))

[100]On 9 December 2021, the Claimant received the grievance outcome. Mr Whiteside found that the Claimant’s removal from the CU process was based solely on his previous no-show: although he had been permitted to complete coaching and assessment flights, he was not recommended for progression because the Base Captain’s recommendation was essential and had not been given. He rejected the Claimant’s argument that his attendance record was good and that attendance was not a relevant criterion, noting that the earlier no-show had been investigated and confirmed, and that other pilots with similar attendance issues had also not been progressed. He further rejected the Claimant’s complaints of unfairness, bullying or unequal treatment, concluding that these claims had not been substantiated; all CU applicants were subjected to the same criteria. He did not uphold the grievance. He reiterated that, although the Claimant would not proceed on this occasion, he remained eligible to be considered for CU in the future.

[101]On 12 December 2021, ACAS issued the Early Conciliation Certificate. The grievance appeal (Issue 5(iii))

[102]On 14 December 2021, the Claimant lodged an appeal against the grievance outcome. His grounds were as follows: 102.1. the time it took to consider the grievance (Ground 1); 102.2. procedural irregularities (Ground 2); 102.3. that the decision was wrong (Ground 3); 102.4. and ‘less favourable treatment, bullying, treated unfairly and lack of equal opportunity’ (Ground 4).

[103]The Claimant accepted that he did not refer to his race as a factor in the treatment. He did, however, refer to age: ‘We were informed that by natural order of transition, pilots who were delayed due to the covid-19 pandemic will complete their command process before the next cohort. The selection of younger and less experienced pilots that were not affected by the initial covid-19 delay can be construed as age discrimination, less favourable treatment and lack of opportunity.’

[104]It was put to the Claimant in cross-examination that he knew the decision had nothing to do with his age. He replied: ‘initially, yes.’

[105]On 20 January 2022, the Claimant confirmed he had been cleared to resume work, and a return-to-work plan was put in place. The grievance appeal hearing (Issues 5(iv))

[106]On 20 January 2022, the Claimant attended a grievance appeal meeting with Mr Diarmuid Rogers; the Claimant was again accompanied by his BALPA representative, Mr Morais.

[107]At the hearing, the notes record that the Claimant ‘advised that his name was pushed down the list regardless of the No Show’; Mr Rogers is recorded as stating that ‘this was a very serious allegation to make’. The Claimant explained that he felt the criteria for CU had been changed without notice and that his removal from the process had a very serious impact on both his life and his family’s life. He said that his hopes of becoming a Captain had been raised and then withdrawn without explanation, and that the Company had shown no empathy towards him.

[108]The Claimant accepted in cross examination that he did not mention discrimination at the hearing (whether age or race). He said that at this stage he still believed that it was the strike issue which lay behind his treatment. His allegations were expressed in generalised terms.

[109]The Respondent’s notes record the following exchange: ‘Diarmuid advised that the language used in this point of appeal is very pointed and very direct. He asked Ademilola who bullied him and who harassed him? Ademilola advised that he was previously put through the peer support programme and advised that he did not want a dispute with Ryanair. Diarmuid advised that the language in the appeal suggests that Ademilola is attempting to direct this towards a dispute. Ben asked if Diarmuid was referring to a legal claim. Diarmuid advised that this was how it was interpreted. Ben asked if he could have a minute with Ademilola in private.’

[110]When the Claimant and Mr Morais returned, the Claimant said that he had learned a lot through the peer support program; he did not have an ulterior motive or hidden agenda; he did not want to take the matter to an employment tribunal.

[111]The Claimant returned to work, and resumed flying duties, on 7 February 2022. The grievance appeal outcome (Issues 2(v)/6(i); 2(vi)/6(i); 2(vii)/6(i))

[112]Mr Rogers provided the appeal outcome on 21 February 2022; he rejected the appeal. The outcome addressed each of the Claimant’s allegations in turn.

[113]On the first ground (delay), he concluded the timeline was reasonable: although the Claimant said the grievance was submitted on 15 October, it was received on 2 November; a hearing was arranged within a week, the issues were investigated without delay, and the outcome issued on 9 December.

[114]On the second ground (alleged procedural irregularity in recording a no-show without a disciplinary sanction), he concluded the Company had acted properly, noting that the earlier letter emphasised the seriousness of a no-show and warned that any recurrence would result in disciplinary action.

[115]On the third ground (that the decision not to recommend the Claimant for a CU interview was wrong because the no-show should not have remained on his file), he found the decision consistent with policy: a no-show was the most serious attendance failure for a pilot, Base Captains always took such matters into account, and the decision not to progress the Claimant was appropriate.

[116]On the fourth ground (bullying, less favourable treatment, unfair treatment, and lack of equal opportunity), he concluded the claims were unsubstantiated: the Claimant produced no supporting evidence and accepted he had previously been recommended when his attendance record was clean but was later not progressed because of the no-show, in line with colleagues.

[117]Mr Rogers also stated: ‘the allegations set out in your written submissions were very serious and disappointing as they were inaccurate, disingenuous and unsubstantiated’.

[118]In the last paragraph of the grievance appeal outcome, Mr Rogers wrote: ‘During our meeting you stated that you needed some time to return to work and normal flying duties, however, you also requested clarity on when you may be considered for a Command Upgrade course in the future. Ademilola, should you meet the criteria for Command and subject to there being no further attendance or disciplinary issues, you may be considered for a Command upgrade course from 1 Jul 2022. I must remind you that this will be subject to meeting all entry criteria and being recommended by your Base Captain.’

[119]The Claimant replied that he had not said at the meeting that he needed time before resuming duties and was ready to restart the CU programme immediately. He said HR had told him he could reapply after 29 December 2021 and believed progression was usually automatic. He added that he had already informed Mr Eoin Ryan that he was ready to recommence training, did not understand why July 2022 had been set as the reconsideration date; any further delay increased his stress.

[120]Mr Rogers did not reply. Mr Morais sent a similar email on 1 March 2022. Mr Rogers spoke to him and said he wanted to give the Claimant the best chance of success, noting that he had been off sick with burnout, on annual leave from 19 October 2021 to 27 January 2022, and had only resumed flying on 7 February 2022. Mr Morais did not pursue the matter further.

[121]In his witness statement Mr Rogers explained that he did not consider it appropriate to place the Claimant immediately onto an intensive CU course on his return for sick leave; the July 2022 date was chosen to allow the Claimant time to re-establish operational currency, complete a fresh assessment and interview (his previous assessment having become stale), and to maximise his prospects of success. Ross Dickie and Diarmuid Rogers not appointing the Claimant to the SFI role (Issues 2(viii) and 6(i)

[122]Meanwhile, on around 27 January 2022 the Claimant applied for a role as a Synthetic Flight Instructor (‘SFI’). This is where First Officers can become simulator instructors, usually for a fixed term of a year or more, before resuming normal pilot duties. The Claimant acknowledged that he applied for this as a ‘fallback option’ because his CU progression had stalled.

[123]The guide to the SFI role set out what Ryanair was seeking. The Claimant accepted that the requirement was to demonstrate not how good a pilot he was, but why he would be a good instructor. The process included an interview testing, among other things, the ability to explain technical concepts. The materials emphasised that applicants must explain aircraft systems clearly rather than recite information; that thorough prior study was essential because many lacked sufficient technical and operational knowledge; that the SFI/TRI course was demanding and required significant personal effort, initiative and time beyond formal training; and that candidates should pursue the role for the right reasons, as those motivated primarily by financial gain often became frustrated by the level of commitment required.

[124]On 2 February 2022, the Claimant completed the SFI interview questionnaire. He scored 88% in the multiple choice test, which was good but not exceptional, given that it was an untimed, open book exercise.

[125]He attended an interview with Mr Dickie on 4 February 2022. The Claimant agreed that he had never previously interacted with Mr Dickie, who did not mention his grievance against the Respondent. According to the interview report form, the Claimant scored 3/5 on everything, apart from a score of 1/5 (the lowest) for technical knowledge, which was below the required standard. Mr Dickie noted that the Claimant was ‘unable to answer basic technical questions or explain clearly technical concepts to the required standard’.

[126]In cross-examination the Claimant said that he thought the score of 3 for experience was too low, although he accepted that he did not have wide experience relating to construction. He rejected the score for technical knowledge as being out of line with his results from previous tests. The Claimant alleged that Ryanair already had its preferred candidates in mind, and that he had evidence that they had been provided with sample oral technical questions in advance; he produced no such evidence at the hearing.

[127]The Claimant was informed on 16 February 2022 that he had been unsuccessful in his SFI application; he did not ask for feedback, nor did he reapply later. Resumption of flying duties

[128]On 7 February 2022, the Claimant returned to flying duties after his period of sickness absence and flew with Mr McGrath; both confirm that Mr McGrath was supportive and that it was an uneventful and friendly flight.

[129]In his witness statement the Claimant alleged for the first time that, around this time, Mr Eoin Ryan told him that Mr McGrath had been instructed by Head Office to withhold his recommendation for the Claimant’s progression through CU; the Claimant interpreted this to mean that Mr Rogers was blocking his progression. There was no reference to this in a letter from the Claimant’s solicitor of 11 March 2022 (see below); the Claimant did not put this to Mr Ryan in crossexamination; Mr Ryan denies saying any such thing; we find it was not said. The letter from the Claimant’s solicitors of 11 March 2022 (Issue 5(v))

[130]On 11 March 2022, the Claimant’s solicitor the Claimant’s solicitors wrote to the Respondent alleging that the grievance appeal outcome, including the indication that the Claimant ‘may’ be considered for Command Upgrade training only from July 2022 constituted victimisation and/or discrimination. The letter criticised the absence of any explanation for the delay and alleged that the Respondent intended to find other reasons to postpone the Claimant’s promotion. The letter states that the Claimant intended to bring proceedings in the Tribunal for direct race discrimination, harassment and victimisation.

[131]Ryanair accepts that this was a protected act.

[132]On 22 March 2022, Mr Baxter emailed Mr Tormey, confirming that Mr McGrath had provided Base Captain approval for the Claimant to progress to a CU interview. On the same date, the Claimant’s status on the system was changed to ‘re-assess’. We find that this intervention was likely prompted by the threat of further litigation.

[133]On 30 April 2022, the Claimant had a motorcycle accident while travelling on the M11, which he attributes to the stress caused by the treatment he had been receiving from Ryanair following his grievance. He was off sick from 6 to 24 May 2022.

[134]On 10 May 2022, Mr Tormey emailed the Claimant explaining that he was currently working though a large backlog by date of entry; he provided guidance on interview topics. The Claimant’s ET1 (Issue 5(vi))

[135]The Claimant submitted his ET1 on 19 May 2022. Mr McGrath requiring the Claimant to undertake a fresh CU assessment flight (Issue 6(ii))

[136]Meanwhile, on 26 April 2022, Mr Baxter told the Claimant that, due to the lapse of time, he would have to re-take his coaching and assessment flights. This should not have surprised the Claimant, for the reasons already given (above at paras 57-58). We accept Mr Baxter’s evidence that, with the agreement of Mr McGrath and Mr Tormey, the practice was that flights were valid for six months.

[137]On 6 June 2022, Mr Baxter emailed Mr Tormey recommending that the Claimant be re-assessed because his August 2021 assessment flight had expired. On 7 June 2022, Mr Tormey notified Mr Baxter that the new assessment flight would take place on 14 June, and Mr Baxter relayed this to the Claimant, stating that, subject to the assessment, his interview would be scheduled shortly thereafter. The assessment flight with Mr McGrath (Issue 6(v))

[138]On 14 June 2022, the Claimant took a new CU assessment flight with Mr McGrath, who rated the Claimant good or very good for everything. His recorded comment was as follows: ‘Good assessment overall. Well flown visual approach. Well planned for and good anticipation demonstrated. During a technical discussion it was apparent that Ademilola has more preparation for CU sims. He admits that he has not done much work lately for the CU. He has agreed that this final preparation will be done in the coming months before a CU course.’

[139]The Claimant says Mr McGrath should have recused himself due to the ongoing grievance and because he had been named in tribunal proceedings, and he described hostile conduct during the assessment, including a dispute about who should operate into Oradea. He alleges that part of the comment above was ‘fabricated’; Mr McGrath states that the flight was routinely rostered, that no improper conduct occurred, and that the Claimant passed the assessment

[140]The Claimant made further allegations about Mr McGrath’s conduct: that he ‘slammed down the checklist’ to intimidate him; that he made him fly into Orado, a category B restricted airport (one that new captains should not be rostered to fly into); and that Mr McGrath improperly ‘quizzed’ him during the flight.

[141]We do not accept the Claimant’s evidence that there was anything untoward about the flight or the feedback. The Claimant did not ask Mr McGrath to recuse himself; Mr McGrath passed him easily; the observation about the Claimant not having done much work lately for CU was innocuous.

[142]The allegation about ‘slamming the checklist’ changed in cross-examination of Mr McGrath to ‘slamming the tech log’; having heard from Mr McGrath we find the allegation of intimidation implausible. There was nothing improper in asking the Claimant to fly into this airport under the supervision of a very experienced Captain; they were flying into the southerly runway, which has a published approach (the other runway did not, which was the reason for the restriction). There was no bar on Mr McGrath asking the Claimant questions - this was, after all an assessment - provided they were not about subject matter in the Route to Command question bank, which we find they were not.

[143]On 17 June 2022, the Claimant’s status in the CU system was updated to indicate that he was suitable to be assessed for a CU course. Robin Tormey allocating the Claimant to a Manchester base (Issue 6(iv))

[144]The allocation of a new Captain to a base takes place at the interview stage. The Claimant was interviewed on 27 June 2022 by Mr Tormey and Mr Baxter. The Claimant had not made a complaint about either of them; he accepted in cross-examination that they had no reason to feel hostile to him.

[145]According to the notes of the interview, both were impressed by the Claimant’s motivation and communication skills, although they noted that his technical knowledge of winter operations was poor; nonetheless, he demonstrated enough knowledge to proceed and they passed him.

[146]Base options were identified at the interview; the options in the UK were Edinburgh, Newcastle, Leeds/Bradford and Manchester. Manchester was the only base which would involve a change of employer from Ryanair DAC to Ryanair UK Ltd. Stansted was not an option. The Claimant said at the interview that he was ‘more than happy to change base if I have to, to have this career progression opportunity.’ In an email later the same day, Mr Tormey added Birmingham as an option; two days later it was removed. Ryanair says that the position changed daily (hence the fluidity in relation to Birmingham). We accept that evidence.

[147]As for the unavailability of Stansted, Ryanair’s explanation was that, although Stansted was often available, it was not being offered at that time because Ryanair had advertised some direct entry roles to Stansted and wanted to assess uptake before offering to those internally promoted to Captain. During the period between the Claimant’s interview and mid-July 2022, Stansted was offered only to SFI appointees (for which, see the following paragraph). More generally, the Claimant’s position was not unusual: out of 31 First Officers promoted at Stansted in 2022, 14 were moved to other bases.

[148]In his witness statement the Claimant compared his treatment with five others who he says interviewed at the same time as he did in June 2022 and were allocated to Stansted. In fact, one of them was interviewed the week before him; three were interviewed between 18 July and 3 August 2022; and the fifth was an SFI appointee, who (the Claimant accepted) had a clause in her contract which permitted her to choose her base as a condition of taking the role.

[149]The Claimant alleges in his witness statement that a colleague told him that he would not be given Stansted because of his grievance, to discourage him from pursuing the CU. Absent any evidence from that unnamed colleague, we do not accept that.

[150]On 27 June 2022, the Claimant formally accepted the offer of CU training. On 29 June 2022, Mr Tormey emailed the Claimant asking him to choose a preferred UK base. In a notably friendly email, Mr Tormey acknowledged that pilots might not get the perfect base as their first allocation but pointed out that ‘through the transfer list there is an avenue to get to where [you] need to be’.

[151]On 30 June 2022, the Claimant confirmed that Manchester was his preferred base. If he had chosen any of the other UK bases (some of which were closer to his home in London), he would have remained an employee of Ryanair DAC. The precondition of denying the existence of prior claims and the refusal to vary it (Issue 6(iii))

[152]On the same date, Mr Tormey sent the Claimant the training agreement, confirming a start date of 15 August 2022, asking the Claimant to sign and return it. The letter began: ‘I have set out below a few important things that you need to understand about the next steps in progressing your career to Captaincy. We have put several measures in place to ease the transition for you and we are available at any stage to discuss the below, or any other concerns you may have regarding your promotion to Captain on successful completion of the Command Upgrade training programme. 1. Legal Claims You confirm that you have no claims against the company as of today. 2. Training Cost Repayment If you cease working with Ryanair [DAC (any of the Ryanair group airlines)] within 24 Months of completion of your command training or decline an offer of a position as captain following completion of command training, then you will be liable to repay the full training costs incurred by Ryanair, which amount to €6,500. For your information, the level of recoverable costs has been reduced to reflect the fact that you will be responsible for your own accommodation and travel arrangements during your training, including at designated training centre. If you cease working for Ryanair at any point during your Command Upgrade training, then you will be liable to repay the relevant training costs incurred up to that point. [...]’

[153]There followed nine other clauses on a variety of subjects. Nearly all would apply to all pilots; one was tailored to the individual (the Claimant’s agreed base of Manchester).

[154]On 14 July 2022, the Claimant emailed saying he could not sign the agreement because he had a live ET claim. On 25 July 2022, the Claimant signed and returned the agreement but crossed out point 1, initialling the amendment.

[155]On 29 July 2022, Mr Tormey replied: ‘With regards to the training contract, I see that you have sent me a document on 25th July with part of the agreement crossed out. Unfortunately, I cannot accept this. This training agreement is a standard document that all pilots who wish to proceed with their command upgrade must agree to. Ryanair will invest significant resources in training you to become a Captain and we cannot proceed with your training without it. However, if you want to delay doing your CU until you are in a position to sign the agreement, that’s fine. We can revisit this when you have resolved whatever issues/cases you have and are happy to accept the training agreement as it is. I expect to be running courses for the rest of this year and into early next year as well and we can plan you for a course at a later date. Either way, can you let me know as soon as possible as, in the absence of a signed (unaltered) document, I cannot place you on the course on 15th August, but I do have other pilots who are ready to go and are planned for later courses.’

[156]On 5 August 2022, Mr Tormey wrote again: ‘I have an update for you regarding your command upgrade – I have attached an updated training agreement for you. The company are prepared to make a one-off exception on this occasion and update the terms of this agreement, subject to your signed agreement of same. If you could please review the attached document and return a copy to me by 9th Aug 2022 to secure a place on the next available course commencing on the 12th Sept 2022 in EMT – Once confirmed I will get the ATO to enrol you in the pre course eLearning material that you will be required to completed prior to ground school.’

[157]On 7 August 2022, the Claimant signed and returned the revised agreement.

[158]Mr Rogers’ explanation in his witness statement (paragraphs 45-46) for the inclusion of this clause was as follows: ‘The inclusion of this clause is entirely standard. It is used on a company wide basis, and is applied universally to all Ryanair employees. The rationale for its inclusion from a Company perspective is not to dissuade individuals from making claims, but instead to flush out whether an individual might have a claim at the time of entering into a contract, whether that is a training agreement or other type of contract. By including this clause in our contracts, it provides an opportunity for the company to become aware of any legal claims/issues the individual might have, prior to them signing the agreement in question.’

[159]In his oral evidence Mr Rogers elaborated on this. He explained that the clause had been added to contracts because, when the Respondent had moved to a new fleet of aircraft some years earlier, a number of pilots refused to sign a new training agreement because it required training costs to be paid back in the event of a pilot leaving; the Respondent faced a number of claims as a result; but a number of pilots told the Respondent that claims had been lodged on their behalf without their knowledge. The Respondent was, he said, trying to ‘flush out’ the position.

[160]As for the initial refusal to remove the clause, Mr Rogers’ explanation was that it was ‘the only document we can rely on if we need to recoup costs from an individual, so we generally resist any change to it’. Command Upgrade training: September to December 2022

[161]On 12 September 2022, the Claimant’s CU training began. The CU programme was an intensive, three-month course comprising ground school (classroom teaching), simulator training and line training. Successful progression required satisfactory performance at each stage; failure at any point resulted in removal from the course and a mandatory twelve-month waiting period before re-entry.

[162]The simulator element was fundamentally different from the checking regime applicable to First Officers: it required candidates to demonstrate command judgement, leadership, decision-making and effective workload-prioritisation; the simulator exercises were conducted with a partner, with the two candidates alternating between the roles of Captain and First Officer. Grades ranged from 1 to 5, with 3 indicating satisfactory performance and 4 the minimum acceptable standard. Candidates were ordinarily expected to achieve grades above the minimum if they were to remain on course.

[163]As part of the training, pilots were given specific and detailed training in how to write Air Safety Reports and what should be included in them. Pilots were trained that it was mandatory to preserve Cockpit Voice Recorder (CVR) data after certain incidents, including an altitude bust (for which, see below at para 189.1). The simulator flight with Mr Michno in September 2022 (Issue 6(v) and 6(vi))

[164]The Claimant completed the Ground School section of his course successfully, with an average score of 94.5% in his Command Upgrade Theoretical Exams.

[165]The simulator sessions took place on 28 and 29 September 2022 at Ryanair’s Milan Bergamo training centre.

[166]On 28 September 2022 the Claimant had a training session with Captain Sietse Kamminga, which was intended to prepare him for the simulator assessment the following day. Mr Kamminga marked him good or very good for all categories apart from application of procedures and workload management, for which he marked him ‘minimum acceptable’. The Claimant described the marks as fair.

[167]On 29 September 2022, the Claimant took his simulator assessment with Captain Jan Michno. Mr Michno marked him good for most categories but minimum acceptable for knowledge, flight path management/automation, leadership/teamwork and workload management. The Claimant alleged that Mr Michno was unnecessarily harsh and aggressive and deliberately gave him false marks.

[168]Mr Michno emailed Mr Dickie on 30 September 2022 with his feedback on the Claimant. He reported that the Claimant’s overall performance was weak, noting repeated gaps in basic knowledge, poor workload management and prioritisation, and several operational slips. He recorded that the Claimant’s simulator partner was also weak, which contributed to confusion and CRM difficulties. Although performance improved when the Claimant was in the First Officer role. Mr Michno concluded that the Claimant required closer attention at the start of line training to ensure that these issues were addressed at an early stage.

[169]Mr Michno made very similar comments about the Claimant’s simulator partner. It was put to the Claimant that the strong message from these emails was that Mr Michno had treated and viewed the Claimant and his partner in the same way; the Claimant replied: ‘well I don’t know what to make of that, but by the looks of it yes.’

[170]The Claimant agreed that the training pilots did not know the trainees. He accepted that there was no evidence that either trainer knew anything of the Claimant’s Employment Tribunal case. Asked why Mr Michno might have deliberately marked him down, the Claimant alleged (without any evidence) that Mr McGrath or someone from senior management might have ‘called’ Mr Michno.

[171]On 4 October 2022, the Claimant amended his Tribunal claim. The provision of additional training (Issue 6(vii))

[172]On 7 October 2022, the Claimant attended a meeting with Mr Dickie and Mr Robert Armstrong (Flight Operations Bases Manager) to discuss the concerns raised by Mr Michno.

[173]The Claimant did not acknowledge any shortcomings on his part but blamed his partner and Mr Michno. Asked to elaborate on his issues with Mr Michno, the Claimant said he would take advice and then take it from there.

[174]A similar meeting was conducted with the Claimant’s simulator partner; she acknowledged that there were some issues during the session, which she believed were largely due to her being paired with the Claimant; she felt she had clashed with him and was ‘dragging [him] along’. She had no complaints about Mr Michno, who she felt was ‘strict but that he also gave good advice and support that he was fair throughout’.

[175]Mr Dickie considered it important that the Claimant recognise and address at an early stage the issues Mr Michno had raised. A tailored package of additional training was arranged to address the gaps; the Claimant said at the time that he was he was interested in any additional training.

[176]The additional training was completed on 10 October 2022. It was conducted by a Senior Instructor/Examiner. The Claimant completed it to a satisfactory standard and continued with the course.

[177]On 7 December 2022, Mr Aidan Murray wrote appointing the Claimant Captain with effect from 1 December 2022. The transfer to Manchester (Issue 6(viii))

[178]As set out above the Claimant had chosen Manchester as his base; that was the only UK base which required a change of employer from Ryanair DAC to Ryanair UK. Ryanair UK tends to be a smaller team. The flight paths are also slightly different, dependent on the base flown from. In order to work for Ryanair UK, pilots need a UK specific pilot licence (rather than the Irish Civil Aviation Authority issued licence as required for Ryanair DAC); they receive an additional £5,000 annual allowance for holding the additional UK license. The base salary is the same, as are the applicable policies and procedures.

[179]Ryanair’s agreement with BALPA provides that, on promotion to Captain, a pilot can apply to change base, but only after they have completed 12 months in their assigned base. The BALPA agreement also sets out a general principle that base transfers work on the basis of seniority.

[180]On 12 December 2022, the Claimant signed and returned his Captain’s contract. On the same day he requested a transfer from Manchester to Stansted. Ms McCann of HR replied that, as he had agreed to be based in Manchester, he was now included in the Manchester headcount for the busy summer season; she said that he could pursue any further queries with his Flight Operations Manager.

[181]The Claimant also emailed Ms Milner of Flight Operations on 12 December 2022 to say that he would like to apply for a Stansted position. This was prompted by a memo of 9 December 2022, inviting applications from contractor pilots who wanted to become employees. Her response was that the memo was directed at contractors, and pilots already employed by Ryanair should use the base transfer app.

[182]The Claimant emailed Mr Declan Ryan on 8 January 2023. Mr Whiteside, the other Flight Operations Base Manager at Stansted, responded and provided the Claimant with the base transfer guide. He also provided a copy of the BALPA agreement. He reiterated that Manchester was one of the bases available at the time of the Claimant’s interview and that this had been agreed by the Claimant. He noted that, in accordance with the agreement, crew utilisation basing was for one year; he expressed the hope that, after the Claimant’s first 12 months operating as a captain, a move to Stansted would be relatively quick.

[183]The Claimant subsequently applied for a transfer through the base transfer app. In the event, he was able to transfer to Stansted within a few months, when Ryanair UK created additional Captain positions at that base. Because there was no waiting list for those Ryanair UK posts, and the Claimant now held the necessary UK licence, he was eligible for a standard transfer which took effect from 1 April 2023; it turned out to be an advantage to him that he now worked under a Ryanair UK contract, having chosen Manchester as his base.

[184]On 24 March 2023, the Claimant amended his claim for a second time; on the same day his solicitors wrote to Ryanair. The Claimant alleged in his witness statement that the transfer only happened because of pressure in the form of these actions. However, in cross-examination, he agreed that it is clear from the solicitor’s letter that, by the time it was written, the transfer had already been agreed. Cancellation of the Wings Ceremony (Issue 6(ix))

[185]On 5 January 2023, the Claimant was removed from the Wings ceremony, which was due to take place on 12 January 2023. It is clear from the contemporaneous evidence that the ceremony scheduled for that date was cancelled for all newly-appointed Captains, not just the Claimant; the event was re-designated for First Officers (Cadets) and certain Ukrainian pilots due to capacity constraints. The Claimant was one of eight Captains removed from the ceremony, and he subsequently took part in a rescheduled ceremony on 20 April 2023. Reporting of flight safety events

[186]We turn now to the background to the two flights, in respect of which the Claimant was ultimately dismissed for failing to report safety events.

[187]The Operations Manual (Part A, para 11.3.2) contains what the Claimant accepted is a very wide duty of reporting of safety events which occur during a flight. ‘Any person subject to this Manual shall report any reportable occurrence/incident/accident of which they have positive knowledge, even though this may not be first hand, unless they have good reason to believe that appropriate details of the occurrence have already been, or will be, reported by someone else. A report will also be submitted on any occurrence that involves an unsatisfactory condition, behaviour or procedure, which did not immediately endanger the aircraft but if allowed to continue uncorrected, or if repeated in other foreseeable circumstances, would create a hazard.’

[188]All pilots are trained in how to write Air Safety Reports (ASRs), and what to include in them. As we have already recorded, the CU course contains a module on reporting, which the Claimant completed. The training materials emphasise the importance of reporting comprehensively: ‘as the Pilot in Command you have a duty to report all deviations’; ‘an effective report is – complete – clear – concise – accurate’; ‘avoid selective use of facts and evidence’.

[189]At para 11.3.4 the Manual includes a non-exhaustive list of occurrences to be reported. They include: 189.1. any ‘level bust’ (flying through the appropriate height limit, e.g. a height limit given by Air Traffic Control to maintain vertical separation between aircraft); 189.2. ‘airspeed inappropriate for the conditions’; 189.3. ‘all non-routine RAAS callouts’ (the Runway Awareness and Advisory System is an electronic system, which provides alerts when certain events happen in connection with take-off and landing). 189.4. ‘loss of situational awareness’ (situational awareness is a pilot’s real-time understanding of the aircraft’s position, configuration, flight path, environment and risks; any lapse, for example caused by startle or task saturation, is safety critical); 189.5. ‘any approach or landing with incorrect configuration setting’ (‘configuration’ refers to the aircraft’s set-up at a given moment, for example the flap setting used for approach or landing); and 189.6. ‘any occurrence where the human performance has directly contributed to or could have directly contributed to an accident or a serious incident’ (for example, a pilot freezing/not responding to commands).

[190]The Claimant accepted that he had been trained on the above list.

[191]The Claimant agreed that before the Podgorica flight he had written 15 ASRs. He was taken through some of them in cross-examination. They were longer and more detailed than the two ASRs which became the subject of the disciplinary proceedings set out below. The Claimant’s explanation was that he went into more detail about things which would not be caught by OFDM data, such as passenger behaviour.

[192]We reject that explanation. By way of example, we were taken to an ASR (completed earlier in his time as a Captain on 19 July 2023), which read: ‘ATC RECEIVED INFORMATION INDICATED TEMPERATURE OF 41 DEGREES AND SLIGHT CROSS WIND. WE RECEIVED DIRECT ROUTING FROM MABOG TO RINPA AND AIRCRAFT STRUGGLED TO DESCEND DUE TO UPDRAFTS AND TURBULENCE FROM THE HIGH GROUNDS. AIRCRAFT SPEED WAS WELL MANAGED AND WE INTERCEPTED THE INBOUND COURSE WITH SPEED OF 180 KNOTS. WE WERE ON PROFILE BUT IT WAS BUMPY AND WE DID A FAF CHECK AT MX281 3200 FT AND WERE ON PROFILE. AIRCRAFT THEN MOMENTARILY LEVELLED AND STARTED TO DESCEND TO FOLLOW PATH A LITTLE LATER THAN NORMAL. I DISCONNECTED THE AUTOMATICS AND CONTINUED FOR A MORE STABLE APPROACH WITH FLAPS 40 SELECTED. THE APPROACH BECAME SLIGHTLY HIGH AND BUMPY DUE EXCESS HEAT AND AIRCRAFT RAAS CALL-OUT “TOO HIGH”. I WAS VISUAL WITH THE RUNWAY AND NOTICED I MAY HAVE TO DESCEND AT A RATE OF 1000FT OR MORE NEELW 1000FT. THIS WAS NOT BRIEFED AND THE DECISION TO GO AROUND WAS ELECTED AT AROUND 700FT. THE SECOND ATTEMPT WAS SUCCESSFUL AT FLAPS 30 WHICH CREATED MORE STABLE APPROACH. STANDARD SOP CALLS DURING GO AROUND WAS MADE TO BOTH CABIN CREW AND PASSENGERS.’

[193]A go-around is a recognised manoeuvre in which a pilot abandons the approach to land and climbs the aircraft away from the runway to attempt another approach or follow air-traffic-control instructions. It is carried out whenever continuing the approach would be unsafe or unstable, such as in poor visibility, incorrect aircraft configuration or wind shear.

[194]This was a detailed account of a go-around, which included a RAAS callout ‘TOO HIGH’; the Claimant recalled all the details and reported them all. There was no formal review in relation to this go-around; we think the likely explanation for that is because the account given by the Claimant was in line with his reporting obligations. We are satisfied that the Claimant knew at all material times what did and did not need to go into an ASR; it would be deeply concerning if he did not. Safety monitoring

[195]The Respondent has a Safety Office as an independent function within its business, which reviews ASRs. Reports are anonymised before the Safety Office reviews them to ensure honest reporting.

[196]Operational Flight Data Monitoring (OFDM) forms part of Ryanair’s Safety Management System and involves post-flight data being captured and analysed to support aviation safety. The recorded data is contained in a Line Operations Monitoring System file, processed by Flight Operations Quality Assurance (FOQA) before being returned to the Safety Office for safety oversight. FOQA is an external company, which provides independent safety monitoring to Ryanair; it provides the Safety Office with alerts, when it detects deviations from the Respondent’s Standard Operating Procedures (referred to as SOPs), based on OFDM data.

[197]The Safety Office reviews ASRs daily and may initiate a Formal Review where OFDM or ASR material indicates a relevant event. The review is carried out by the Base Captain; however, he cannot initiate a Formal Review; only the Safety Office can do that.

[198]In a Formal Review, the Base Captain examines the OFDM data, compares it with the ASR, interviews the crew, and submits findings to the weekly Safety, Security and Fatigue meeting, chaired by Mr O’Mara. Recommendations are then provided to the Chief Pilot.

[199]Most OFDM exceedances (deviations from the required standards) are treated as routine trend-monitoring items, and relatively few lead to Formal Reviews: between February and December 2023 Ryanair processed 11,632 ASRs; there were 171 Formal Reviews.

[200]The Respondent maintains that OFDM operates as an objective safety tool, intended to reconstruct flights factually and verify the completeness of reporting rather than to discipline pilots, except where significant reporting deficiencies are found.

[201]The Claimant maintains that, in his case, OFDM was used punitively and selectively, in a manner inconsistent with normal safety practice. He asserts that minor exceedances were escalated to disciplinary proceedings, to engineer a misconduct finding rather than to improve safety. The flight into Podgorica on 13 November 2023

[202]On 13 November 2023, the Claimant captained flight RK8288 from London to Tirana in Albania with a First Officer, who we will refer to as FO/P After two unsuccessful go-arounds at Tirana (because of weather conditions), the flight was diverted to Podgorica in Montenegro (‘the Podgorica flight’). The landing in Podgorica was eventful.

[203]On 14 November 2023, the Claimant lodged four ASRs, one of which (ASR 1811) dealt with the descent into Podgorica; that is the only relevant ASR for these purposes: 'DURING FINAL APPROACH INTO LYPG ILS FOR RUNWAY 36 WHILST DESCENDING TO PLATFORM ALTITUDE OF 1200FT, LOC WAS CAPTURED WITH AIRCRAFT BELOW THE GLIDE PATH BUT MISSED APPROACH ALTITUDE WAS SET TO 2400FT BEFORE GLIDE SLOPE CAPTURE (NOT AS PER STANDARD SOP). THIS RESULTED TO AIRCRAFT BEING HIGH ON APPROACH AFTER RE-ESTABLISHING ON GLIDE PATH. CAPTAIN TOOK CONTROL TO RECOVER AT A MAXIMUM OF 1000FT RATE OF DESCENT BUT STILL SLIGHTLY HIGH ON APPROACH SO A GO AROUND WAS INITIATED AT AROUND 700FT. CAPTAIN CAME IN FOR A SECOND ATTEMPT TO LAND WITH NO FURTHER ISSUES.'

[204]In the course of his evidence, the Claimant estimated that, in his career, he had carried out eight or nine go-arounds before the Tirana/Podgorica flight, when there were three go-arounds in a single flight.

[205]The Claimant agreed in cross-examination that the only adverse event he mentioned in his ASR was in relation to something done by the FO/P, not by him: the setting of the missed approach altitude (i.e. the altitude to which the aircraft will climb during a go-around; the correct pre-setting of it is safetycritical).

[206]The day before, on 13 November 2023, the Claimant had texted FO/P: ‘C: Hi [FO/P], I have watched the video on CEFA, so what happened was you dialled the missed approach 2400 before GS capture. We have to capture GS first before setting missed approach […] I am sure I did not call GS capture as aircraft was so low the profile that a double capture was impossible. I suggest you watch the CEFA video.’

[207]FO/P asked to see the Claimant’s ASR. The Claimant replied: ‘I don't think we are allowed to share notes. I suggest you write your ASR if you feel the need to. I know Ryanair's just culture would not punish anyone for being honest if they make a genuine mistake. Trying to wiggle out of it might pissed [sic] them off. Only my two cents.’

[208]Also on 14 November 2023, the Claimant spoke by phone with Mr McGrath about the flight. In his witness statement for this hearing, the Claimant’s evidence was that he raised concerns about: ‘[FO/P’s] inadequate CRM [Crew Relationship Management] and the way this contributed to the error chain […] During our discussion, I informed SM of my intention to file a Captain’s Special Report addressing [FO/P’s] impulsive and overbearing behaviour on the flight deck. SM discouraged this, stating that the matter could be considered subjective unless FO/P’s conduct had been “categorically unsafe.”’

[209]In a file note prepared two days after the conversation (on 16 November 2023), Mr McGrath gave a very different account of this discussion: ‘ODOUJAD [the Claimant] called me at 1350 on 14/11/23. The primary purpose was to report [FO/P] in confidence. He explained that [FO/P] was not following his instructions and was disobedient. I offered ODUJAD the option to report him formally in writing. I explained that [FO/P] had a “right to reply” and explained this concept. I also explained that there was no such thing as “in confidence” as I have a duty of care to safety and regulatory compliance, therefore if he reported anything which entered this sphere it was no longer in confidence by default. ODUJAD said there was no safety issue with [FO/P] and that he did not want to report him formally. ODUJAD suggested I target [FO/P] to fly with specific captains so they could view his behaviour with [FO/P] being aware. I in [sic] ODUJAD that this was not only unfair but undermined the regularly approved training and checking system. I explained to FO/P [presumably, ODUJAD] that there was an approved training program in place which trained and assessed CRM issues, and to expose [FO/P] to any extra scrutiny, especially in the absence of any formal report, was unnecessary and unjust. ODUJAD accepted this. During the conversation I became aware that as part of the complaint about [FO/P] he had conducted 3 go-arounds in the one flight. This was obviously highly unusual and would of course have to be investigated. I became concerned, by the way ODUJAD was explaining the sequence of events, that part of the reason for ODUJAD reporting [FO/P] was to pass some of the blame for any crew errors that day firmly onto [FO/P]. So I requested ODUJAD to fill in ASR as was required and that it would be investigated as per normal procedures. Call ended.’

[210]We accept the accuracy of that contemporaneous note. We find that Mr McGrath acted properly in relation to both pilots: he did not seek to discourage the Claimant from raising a formal complaint about FO/P; what the Claimant could not do was to make an off-the-record complaint, which would have been unfair to FO/P. In a file note of a later discussion on 27 February 2024, Mr McGrath recorded the Claimant alleging that FO/P ‘consistently “disobeyed his lawful commands”’.

[211]On 15 November 2023, the safety review panel considered the Podgorica ASR and requested OFDM data from FOQA (the external agency) for the flight.

[212]On reviewing the report, the Safety Office decided that the OFDM data should be analysed, and there should be a Formal Review. As was standard, the Formal Review was conducted by the pilots’ Base Captain, Mr McGrath.

[213]On 11 January 2024, Mr McGrath completed the Formal Review into the Podgorica flight, identifying multiple safety concerns, including: 213.1. the aircraft flew 1.8 nm to the east of the published outbound radial before turning to approach the runway; 213.2. FO/P entered a ‘missed approach’ altitude of 2,400 ft at the wrong moment, so that the Claimant had to take over the controls; 213.3. during the go-around, the Claimant flew at the wrong bearing (50 degrees rather than 18 degrees) for 2.5 nm, towards high ground; 213.4. also during the go-around, the Claimant flew the aircraft 800 ft higher than had been authorised by air traffic control (an ‘altitude/level bust’); 213.5. according to the Claimant, FO/P ‘froze’ during the go-around and he had to prompt him for gear and flaps.

[214]On 12 January 2024, the Claimant met Mr McGrath to discuss the Podgorica flight. The Claimant covertly recorded the meeting; he accepted in crossexamination that this was particularly objectionable because the meeting was about air safety events which are highly confidential.

[215]Mr McGrath began by saying that flight was not well handled, but ‘I think you know that’; the Claimant suggested he did not know what Mr McGrath was talking about. They went through the flight data. Mr McGrath closed the discussion by saying: ‘I know you believe it was all [FO/P’s] fault. I know, you’ve told me that, and that’s fine. I mean, from my perspective, what I would say to you is you were the captain of the aeroplane, you’re supposed to be in charge. So you do have to accept responsibility for it, even though I know you probably don’t want to. But that’s the way it is, you know. We’re paid a six-figure salary to be in charge and we are responsible no matter what happens.’

[216]Mr McGrath then submitted the Formal Review later that day.

[217]On 12 February 2024, the Weekly Safety, Security and Fatigue meeting reviewed the Podgorica flight and recommended a series of remedial steps.

[218]On 28 February 2024, the Claimant emailed Mr McGrath his response to their discussion about the Podgorica flight the previous day. He maintained that FO/P’s ‘lack of experience, insubordination and exacerbated [sic] by lack of CRM’ had destabilised the aircraft and contributed to a chain of errors. He asserted that both crew members were startled, that FO/P froze during a critical phase, and that these matters should have been considered from a CRM perspective. He accepted formal responsibility as Captain but maintained that FO/P’s actions were the root cause of the issues that arose. He stated that the downward leg (near the high terrain) was under radar vectors (i.e. on the instructions of ATC). He compared this route to that of another flight. The Tribunal was shown that comparator flight; it was clear to us (from the materials produced by the Claimant himself) that the comparator flight was plainly flying at a much higher altitude.

[219]On 28 February 2024, Mr McGrath contacted FO/P about the Podgorica flight. ‘[FO/P] informed by BC STN [Mr McGrath] that the purpose of the call was to debrief on UKFR27. BC read out the findings and conclusions of FR27. [FO/P] confirmed he understood and agreed with everything recorded. He understood there was an aspect of disagreement between his version of events and the captains version of events which is outlined in the FR and accepted that for what it is. [FO/P] pointed out that ODUJAD has made complaints against him and blames him for the outcome of this incident and as such asked could he have a "no fly" roster with ODUJAD. BC STN said that all crew are trained and expected to fly together, and that it is unlikely that this event would reach the "high bar" of a no fly roster. However, BC STN agreed to pass on the request to flight safety officer/FOPS BM. BC STN advised [FO/P] to remain professional during the upcoming sim event with ODUJAD which form part of the closing actions of this FR. [FO/P] undertook that he would take a professional attitude in his dealings with ODUJAD.’

[220]On 29 February 2024, the Claimant undertook remedial simulator training in relation to the Podgorica flight, which he recreated without any problems.

[221]At a subsequent meeting on 14 March 2024, the Claimant alleged that FO/P had repeatedly disobeyed his lawful commands and suggested this reflected a wider pattern between FO/P and other Captains, although he declined to pursue any formal grievance. He subsequently retreated from that position. In his evidence to Mr Elbert at the appeal hearing, he reduced the issue to a mere ‘difference of opinion’ about whether a monitored approach was required. In his witness statement in these proceedings, however, he again asserted that when he suggested that he should perform the landing FO/P ‘again stated no’, which, if true, would have amounted to a direct refusal to comply with a command. In cross-examination, however, he denied that he had ‘ever said that he disobeyed my lawful commands’.

[222]The Claimant’s account shifted over time, advancing a serious allegation of insubordination against his colleague when it suited his position but subsequently diluting or abandoning it. That inconsistency undermines the reliability of his evidence on this and other issues and suggests a willingness to make allegations which he knew could not be maintained. The failure to report for duty on 28 November 2023 (Issue 6(x))

[223]Meanwhile on 28 November 2023, the Claimant had been rostered to fly to Ouarzazate in Morocco. His report time was 05.35. He did not report for duty at the scheduled time. At 5.55 am, he called Crew Control. A transcript of the call, which was recorded, shows that he said: ‘I forgot to set my alarm’. The flight to Morocco was delayed by 57 minutes; the return flight was delayed by just over an hour.

[224]Ryanair’s disciplinary policy lists the following as examples of gross misconduct:• ‘failure to report for duty without an acceptable reason or adequate notice’;

• any act that deliberately or unnecessarily delays passengers;

• breach of trust (includes making false or deliberately misleading statements)’.

[225]On 5 December 2023, the Claimant was notified of an investigatory meeting to be held on 7 December regarding this incident. The meeting was conducted by Mr Declan Ryan. The Claimant covertly recorded the meeting, using his phone. His Captain’s contract contained the same prohibition as set out above (para 93). The Claimant told the Tribunal that he did it ‘to protect myself’.

[226]At the meeting he gave a different explanation for his lateness: that he had overslept because he had taken two ibuprofen tablets the night before, which caused unexpected drowsiness and made him ‘totally unable to wake up’; he said that this was what he said he told Crew Control; he denied having said that he forgot to set the alarm; on the contrary, he said that he had set ‘three alarms’. That was untrue.

[227]On 2 January 2024, Mr Jason Whiteside (Flight Operations Base Manager) invited the Claimant to a disciplinary meeting, which (after some rearrangement) took place on 12 January 2024. At that meeting the Claimant said he had set ‘two alarms’; he said he was ‘confused’ and ‘in a state of shock’ when he spoke to Crew Control. Mr Whiteside told the Claimant that he had listened to the recording of the call, in which the Claimant had stated in a matter of fact tone that he had forgotten to set his alarm. The Claimant responded that he felt as if he were being ‘harassed’ by Ryanair.

[228]Mr Whiteside was satisfied that the Claimant had failed to report for duty on time on 28 November 2023, caused delays to two flights, and then given shifting and contradictory explanations for his lateness; he accepted no responsibility, was evasive, obstructive, and attempted to deflect blame onto the company, rather than acknowledge the effect of his lateness on passengers and operations. Failing to report for duty without an acceptable reason, unnecessarily delaying passengers, and breach of trust were all examples of gross misconduct in Ryanair’s policy; he concluded that a final written warning was justified.

[229]On 2 February 2024, the Claimant appealed the final written warning. He attended an appeal meeting, which was conducted by Mr Rogers on 28 February 2024. Mr Rogers explored the Claimant’s explanations, including the suggestion that medication-induced drowsiness had caused the lateness, but found inconsistencies in the Claimant’s account and noted the absence of supporting medical evidence. He also relied on the recording of the contemporaneous Crew Control call. Mr Rogers concluded there were no new facts or mitigation sufficient to disturb the original decision, and he upheld the final written warning, communicating that outcome to the Claimant on 3 April 2024.

[230]At the hearing before the Tribunal, the Claimant maintained that his lateness was, in fact, Ryanair’s fault. His reasoning was this: the way Crew Control allegedly manipulated the roster before his six days off had caused him to be ‘ill’; asked by the Judge what the nature of the illness was, he clarified that he meant tired; because he was tired, he could not do any form of exercise during his first three days off; he then tried to make up for lost time at the gym, overexerted himself and pulled a muscle; he was advised to take ibuprofen, which he did; the Ibuprofen he took at 20:00 the night before caused him to be unable to wake up.

[231]Asked by the Tribunal if he was going to be inviting the Tribunal to make a finding that it was Ryanair’s fault that he overdid it at the gym, the Claimant accepted that he was not; thus, the elaborate chain of causation which the Claimant had constructed was broken. In case there is any doubt, we take judicial notice of the fact that ibuprofen in ordinary doses does not cause drowsiness, which is why it is commonly taken during the day for headaches.

[232]The fact that the Claimant advanced such an implausible account (with a view to avoiding responsibility, while blaming others) further damaged his credibility. The flight into Tangier on 3 January 2024 (Issue 6(xi))

[233]On 3 January 2024, the Claimant captained flight RK1377 from London to Tangier (‘the Tangier flight’); we will refer to his First Officer on that flight as FO/T. There were a number of issues with this flight: 233.1. the flight was too fast and too high on the approach to the airport: at 10 nm from the airport, it was travelling at 241 knots (41 knots faster than the recommended speed); 233.2. the crew failed to set the missed-approach altitude at 1,000 ft to prepare for a go-around; 233.3. the aircraft flaps were set late: they should have been selected at 10 nm from the airport and were not selected until 7 nm.; 233.4. during the descent, two non-routine RAAS warnings were heard:(i) a Class 2 RAAS alert for being too high on approach; and

(ii) a Class 3 RAAS alert (the most serious category of alert) for instability; 233.5. the aircraft significantly exceeded Standard Operating Procedure guidelines for appropriate approach speeds, lateral path, and rate of descent, resulting in two ‘Class 2 OFDM events’ being triggered for high rate of descent, one passing 935 ft and the other at 491 ft.; 233.6. although not compliant with stable-approach criteria, the aircraft flew through the published approach minimum height (750 ft) and the final landing gate (500 ft above the runway); 233.7. the Claimant decided to initiate a go-around very late, at 378 ft above the ground.

[234]The Claimant accepted in cross-examination that many things went wrong before the go-around was initiated.

[235]On 4 January 2024, the Claimant filed ASR 1971. He wrote: ‘ON FINAL APPROACH INTO VOR RUNWAY 10 AT TNG, CREW EXPERIENCED A TAILWIND RESULTING IN AIRCRAFT BEING HIGH ON APPROACH. RAAS CALL OUT “UNSTABLE” WAS HEARD AND CREW EXECUTED A GO AROUND. SECOND ATTEMPT WAS SUCCESSFUL.’

[236]Among other things, the Claimant did not mention the Class 2 RAAS alert - which the Operations Manual states must be reported - for being too high at 888 ft, even though that was a loud call-out which he accepted he heard in the cockpit. His explanation was that he had received the disciplinary letter the night before ‘and my whole state of mind was severely affected’. We observe that, if that were true, he ought not to have been flying at all. He also did not mention the fact that the go-around was initiated after the landing gate and at only 378 ft above the ground. He accepted in oral evidence that even the passengers would have been aware of that; plainly, it is a fact which he ought to have recorded.

[237]On 5 January 2024, the safety panel considered the Claimant’s ASR and closed it.

[238]On 14 January 2024, FOQA flagged the Tangier flight on the basis of an orbit below 3,000 ft (an event which it was later established was unproblematic, because the crew had air traffic control permission for it). As usual, FOQA did not know the identity of the pilots concerned, only a code for the flight.

[239]On 14 February 2024, the monthly OFDM Review meeting requested further data relating to the Tangier flight. The Claimant accepted that it was the analysis of that data which led the safety team to conclude that a formal review was required.

[240]On 22 February 2024, the Tangier ASR was reopened. On 26 February 2024, OFDM analysis was completed and Mr McGrath was instructed to carry out a Formal Review.

[241]On 27 February 2024, Mr McGrath had a phone conversation with the Claimant, the first part of which related to the Podgorica flight. Mr McGrath recorded his account of the conversation in an email to Mr Declan Ryan at 17:02 the same day. The email records that in the second part of the meeting he raised the Tangier flight and told the Claimant that it had been opened to a Formal Review. ‘BC STN [Mr McGrath] advised that UKASR1971 had been opened to a formal review. When the ASR was initially reviewed after the event, the review team took ODUJAD’s [the Claimant’s] version of events at face value and closed the report. However, when a monthly report was sent to the RUK Safety Manager for all the flights in January, this event was flagged as a flight of interest as it appeared to have some unusual aspects to it. The safety manager requested the OFDM report which arrived last week. After review it has now been opened as a formal review. The ASR appears to have significant underreporting which also needs to be addressed. BC STN explained that he would need to complete an FR and address the key points which are:• the underreporting of the event

• the reason why the approach was not identified as unlikely to be successful before the 10 mile gate was reached

• crossing the 10 mile gate and not configuring flaps until 7nm

• review any other opportunities to trigger a go around BC STN pointed out that the ultimate decision to go around was made and this was a positive outcome.’

[242]Mr McGrath specifically flagged up the issue of under-reporting. The Claimant denies that there was a discussion about the Tangier flight. We find that there was: the next passage in the email quotes the Claimant’s own response: ‘Initial report is that ODUJAD recalls there was a tailwind. He said the tailwind would have resulted in them being high and fast. BC explained the 10 mile gate still needs to be adhered to and that this was the reason it existed. ODUJAD started talking about the TAS being really important to this event. The BC STN was aware this was nothing to do with the issues being raised but decided to postpone explaining the technicalities of why this was not relevant as it may take some time. This could be done at the subsequent meeting.’

[243]On around 27 February 2024, FO/T provided his own account of the flight to the Claimant, for the Claimant to forward to Mr McGrath. On 29 February 2024 Mr McGrath asked to speak with the Claimant about the Tangier flight. On 3 March 2024 the Claimant left a voicemail (which was later transcribed) for FO/T. He described his meeting with Mr McGrath about the flight and said ‘yeah, he [Mr McGrath] seemed pretty chilled’: ‘And he said he was gonna he was gonna close it off. Hmm, And then the orbit thing that was an error on the on the part of the OFDM guys. So yeah, it seems pretty chilled, but the only thing was he was telling me, look, you're the captain, you need to take control of this thing, blah, blah, blah. And don't give me excuses that the FO was flying. You should be on top of it. So I take it for I take it on board going forward but, really, really thank you for taking the time out even though you've left the company to speak to him, I really do appreciate it.’

[244]In his evidence in these proceedings the Claimant gave a very different account of his meeting with Mr McGrath: he described it as a ‘fault-finding exercise’. He stated that during the conversation he reminded Mr McGrath of the company’s no-blame policy in relation to go-arounds and that Mr McGrath replied: ‘management has decided to take a different approach with you’; the Claimant that ‘I immediately recognised that this was connected to the forthcoming Tribunal hearing scheduled for October 2024’. He repeated this account at the dismissal appeal hearing: ‘Okay, Steve told me, 29th February 2024, that Ryanair was taking a different approach with me, which is racially motivated, vindictive and unlawful […] I swear to God that’s what he told me and I don’t understand why.’

[245]We find that that account of the Claimant’s meeting with Mr McGrath is false: it is irreconcilable with the account he gave to FO/T, in which he described a meeting which gave him no cause for concern and at which Mr McGrath was ‘pretty chilled’; and it is inherently implausible that Mr McGrath would have told the Claimant in terms that that Ryanair was going to treat him less favourably, knowing that the Claimant had ongoing ET proceedings for race discrimination.

[246]On 29 February 2024, Mr McGrath completed the Formal Review in relation to the Tangier flight. He summarised the issues with the flight and wrote: ‘The captain submitted an ASR which did not mention the late configuration of the aircraft and the SOP issues related to the event. The ASR was initially closed by the review board but was later highlighted in a FOQA report as a flight of interest. The captain was asked why there was an element of ‘underreporting’ in the ASR. He said he had no intention to underreport, however there was no reason provided as to why the report was worded the way it was.’ The initiation of the disciplinary process (Issue 6(xii))

[247]On 19 March 2024, the Weekly Safety, Security and Fatigue meeting reviewed Mr McGrath’s Formal Review of the Tangier flight and recommended further remedial steps. The report was marked: ‘Review comments on under reporting of the event with the NPFO.’

[248]NPFO stands for Nominated Person Flights Operations, who at this point was the Chief Pilot for Ryanair UK, Mr Shane McKeon (Mr McKeon retired in 2024). As it happened both Formal Reviews (Podgorica and Tangier) were referred to him by Safety Management at the same time. He later observed that, had they not been, ‘the potential trend of underreporting may not have been immediately identified’. He decided there should be an investigation under Ryanair’s disciplinary policy into potential underreporting of safety events by the Clamant. He instructed Mr McGrath to initiate the process. The investigatory meeting into the Podgorica and Tangier flights (Issue 6(xiii))

[249]On 21 March 2024 Mr Jason Whiteside (Flight Operations Bases Manager) invited the Claimant to an investigatory meeting. The letter, which was drafted by Mr Declan Ryan, stated: ‘I refer to your overall performance over the past 12 months of employment including two recent Formal Reviews (UKFR27 and UKFR33). You are now required to attend an Investigative Meeting on 27 March at 15:00z via Microsoft Teams. This meeting will also be attended by Craig Hope (Regional Base Captain) and Kayla Cullen (HR). Details have been placed on your roster and link will be sent to your EFB email address. In accordance with the Ryanair Disciplinary Procedure (copy attached), you have the right to be accompanied at this meeting however I must advise that it is your responsibility to ensure that your chosen witness or representative can attend. If you have any queries, please don’t hesitate to contact me or raise a query via Zendesk.’

[250]The specific matters being investigated were not identified in the letter; it was unclear what was meant by ‘your overall performance’; there was no mention of underreporting; the Claimant was not sent the Formal Reviews for the two flights.

[251]Owing to an administrative error, the invitation to the meeting was not sent to him until 25 March 2024; he did not discover it until the next day, giving him only 24 hours’ notice of the meeting.

[252]On 27 March 2024, the Claimant attended the investigatory meeting, accompanied by his solicitor, who took notes. Mr Whiteside was leading the investigation for Ryanair; Mr Hope was the technical adviser and asked most of the questions; Ms Cullen (HR) attended as notetaker. The Clamant covertly recorded the meeting, despite having been told at the beginning of the meeting that this was not permitted.

[253]Near the start of the meeting the Claimant asked ‘if this meeting was to discuss his technical exam’; his confusion reflects the lack of clarity in the invitation letter. Mr Hope read out the two Formal Reviews and asked the Claimant to explain ‘why both these events were reported in a minimalistic manner’; the Claimant disputed that that was the case. He asserted that he had never received any training on report writing; that was untrue (see above at paras 163 and 186-190).

[254]No investigatory report was produced after the meeting, summarising the evidence and making recommendations as to what should happen next, including the nature of the potential disciplinary charges. According to Mr Hope’s witness statement (paragraph 43), he and Mr Whiteside had a discussion and ‘agreed that [the Claimant] had underreported serious safety events based on the two ASRs we had reviewed, which was in contravention of the Operations Manual Part A Chapter 11.3’. Mr Hope then spoke to Mr Declan Ryan and said that ‘there was evidence of underreporting (i.e. there was a case to answer).’

[255]On 27 March 2024 the Claimant was notified that he was required to attend an additional simulator training session following the Tangier flight. Although he questioned the need for it, he undertook a remedial line check on 6 April 2024. The disciplinary hearing (Issue 6(xiii))

[256]By email dated 4 April 2024, Mr Whiteside invited the Claimant to a disciplinary meeting: ‘I refer to the Investigative Meeting held of 27th March 2024, which was attended by Jason Whiteside (Flight Operations Bases Manager), Craig Hope (Regional Base Captain) and Kayla Cullen (HR). You are now required to attend a Disciplinary Hearing on 11th April 2024 at 11:00z via Microsoft Teams which will also be attended by Shane McKeon (Chief Pilot Ryanair UK) and Luke Mimnagh (HR). Details have been placed on your roster and link will be sent to your EFB email address. In accordance with the Disciplinary Procedures (copy attached), you have the right to be accompanied at this meeting however I must advise that it is your responsibility to ensure that your chosen witness or representative can attend. If you have any queries, please don’t hesitate to contact me or raise a query via Zendesk.’

[257]On 13 April 2024, the Claimant wrote to Mr Declan Ryan: ‘I thank you for your letter of invite for the 17th April 2024. Can I request for management or investigation report that would be discussed. This would allow me [to] prepare and contribute effectively to the meeting.’

[258]On 16 April 2024, the Claimant wrote to Mr Ryan, referring to the ACAS guidance and seeking confirmation that he would be provided, before the disciplinary hearing, with details of the alleged misconduct or performance issues, the evidence relied on from the investigation, any additional material to be discussed, and the potential outcomes.

[259]The day before the disciplinary hearing (which had been rescheduled to 17 April 2024), Mr Ryan emailed the Claimant, providing the Respondent’s notes from the investigation hearing but not the Formal Reviews. There was no document pack for the hearing. Mr Ryan wrote: ‘As advised in the letter, your performance as a Captain is under review. As part of that review, we are trying to understand the manner in which you reported two recent events. In both cases, they were under reported and the serious nature of the events only came to light through OFDM reporting at a later date. This is a very serious issue. As you are aware open and honest reporting is a fundamental cornerstone of the Ryanair Safety Management System. If you have any questions about the meeting, please let me know. Please note that although no outcome has been decided, possible outcomes to the process are demotion or termination in line with the disciplinary procedure.

[260]The disciplinary hearing went ahead on 17 April 2024. It was conducted by Mr McKeon, supported by Mr Declan Ryan. The Claimant was accompanied by his solicitor, who took notes.

[261]Mr McKeon began by asking the Claimant why he had underreported the events of the two flights. The Claimant asked him to be more specific; the notes record Mr McKeon saying in respect of the Podgorica flight: ‘the initial approach, the go-around navigation and the altitude bust’. The Claimant denied that there was anything wrong; he asserted that the missed approach was ‘under radar vectors’. He stated that ‘the issues were caused because of the first officer’s performance onboard this flight… the FO froze and was insubordinate’. He said that he was suffering from ‘startle factor’ following the incidents. In relation to the Tangier flight, the Claimant said that he acknowledged in his report he had deviated from SOP and, if he did underreport, it was unintentional.

[262]The Claimant asserted that Ryanair ‘had a no-blame policy for go-arounds for everyone except him’. Mr McKeon agreed that there was a no-blame policy ‘even if the go-around was not warranted’. However, the issue being investigated was not the fact that the Claimant did a go-around, but the manner in which he had reported the events.

[263]Although at the meeting the focus on under-reporting was clear, the meeting itself was unstructured and discursive, jumping from topic to topic; there appears to have been no reference to documents, other than the ASRs.

[264]On 23 April 2024, the Claimant submitted detailed questions to Mr Ryan arising from the hearing. He challenged both the technical accuracy of the Respondent’s analysis and the evidential basis for its conclusions. Effectively, he was trying to flush out the specific charges of underreporting and what policies were being relied on. Mr McKeon replied, answering the questions point by point. This was information which ought to have been provided before the disciplinary meeting, not after it.

[265]On 25 April 2024, the Claimant requested copies of the Formal Reviews.

[266]On 2 May 2024, Mr McKeon wrote inviting the Claimant to a disciplinary outcome meeting. On the same day Mr Ryan sent the Claimant the Formal Review for the Podgorica flight; the Claimant had to chase again for the Tangier Formal Review, which was provided on 7 May 2024.

[267]On 3 May 2024, Mr Ryan interviewed FO/T regarding the disciplinary investigation. On 7 May 2024, Mr Ryan met with Mr McGrath about the investigation. The dismissal (Issue 6(xiv))

[268]The Claimant attended a disciplinary outcome meeting on 8 May 2024 unaccompanied. Mr McKeon read the outcome letter out in full; it was sent to the Claimant on the same day.

[269]In relation to the Podgorica flight, the dismissal letter stated that the ASR ‘omitted significant events including’: ‘1. Incorrect navigation to comply with the initial ATC clearance provided to you. 2. An incorrectly executed missed approach procedure with an altitude bust. 3. You contended at our meeting that you were under radar vectors, however this is not correct as the aircraft was in LNAV following an incorrectly constructed approach which resulted in the aircraft being flown in closer proximity to high ground than if following the cleared instrument approach procedure. During the meeting of 17th April 2024, you claimed that on 13th November 2023, the First Officer onboard this flight was ‘causing issues’ and that he froze during the go-around. Rather concerningly, you claimed during this meeting that you intentionally chose not to submit a report regarding his substandard performance or include any mention of it in your ASR.’

[270]In relation to the Tangier flight, the outcome letter stated: ‘The ASR filed for RK1377 on 3rd January 2024 consists of only 3 short sentences which omits the following key events; 1. The high energy state of the aircraft inside 10 nms and mis-configured at this point contrary to Company SOPs. 2. The delayed configuration of the aircraft, misapplication of vertical control modes resulting in a vertical profile not matching the published approach profile resulting in RAAS TOO HIGH, and two OFDM Class II events for high rate of descent. 3. A RAAS UNSTABLE (Class III event) followed shortly thereafter by execution of the missed approach procedure at 378 ft above aerodrome level.’

[271]The outcome letter went on to conclude as follows: ‘The safety and flight operations reviews clearly show that your underreporting of onboard incidents constitutes a serious breach of operational and safety procedures, which reduced the margin of the safety of our operation. Your underreporting also compromises the Safety Management System in Ryanair UK. Your failure to include important information regarding the events is inexplicable in the circumstances, and the extent of your omissions has led me to conclude that this was a wilful violation, which will not be tolerated in Ryanair UK. I must also highlight the complete lack of responsibility you displayed in this process. Rather than accept any wrongdoing you deflected blame onto your colleagues and the company. During this disciplinary process I found you to be evasive, dishonest and misleading. For example, you claimed in the investigative meeting of 27th March that you were never taught how to complete an ASR report, yet the training department have confirmed this was part of your command upgrade training which you completed on 2nd December 2022, and a review of previous ASR reports you have submitted show that you are very familiar with the reporting systems. As mentioned above, previous reports you have submitted included much more detail regarding less serious events. This leads me to believe that the underreporting was intentional. Other examples of dishonesty included your claim again during the Disciplinary Hearing on 17th April 2024 that you were under radar vectors when you descended below minimum radar vectoring altitude on 13 November and even tried to claim that if this was wrong, then it was the ATC controller’s fault despite the fact that it is clear you could not have been under radar vectors as you were in LNAV. You also claimed in the Disciplinary Hearing that you only received your invitation letter to the meeting on the evening of 16th April, despite confirming receipt of the invitation letter in your Zendesk query to Declan Ryan of 13th April. Not once during this process did you offer any contrition or show any acceptance that you were wrong even when presented with significant evidence of the issues in question. This is far below the standards expected of a Commander in this airline, as it is clear you lack any acceptance of your failings or any remorse for your actions. I am extremely concerned that throughout the meetings, you have maintained your position that you do not believe you have underreported the flight safety events. As an Aircraft Commander you are responsible for ensuring the safety of the aircraft and accurate reporting of any events on flights you operate. This is not only a contractual obligation relating to your employment but also your responsibility as a licence holder. Your failure to accurately report safety events, as an experienced pilot, is a serious breach of company policy and aviation reporting standards. As you are fully aware, your position within this Company is one which holds a significant degree of trust and responsibility, and we must be able to rely on you as the Commander of the aircraft, to carry out your duties to the standard required, including accurate flight safety reporting which is fundamental to our Safety Management System. This is a fundamental requirement of a safety critical role in the aviation industry. Your actions in underreporting flight safety events on both of these occasions, in addition to your failure to accept any responsibility or acknowledge any wrongdoing on your part during the disciplinary process, has resulted in me having to review your continued suitability to remain employed in your role as a Captain in this Company. It is clear to me that you have not learnt from these incidents and that your repeated failure to accept responsibility for your actions is not compatible with the position of Captain. The Rough Guide to Ryanair clearly lists ‘Breach of Trust’ as an act of gross misconduct, the normal sanction for which is dismissal. You have been given ample opportunity to engage with the company during this process however, you remain unwilling to accept any responsibility for your actions, and I have found that your actions have irreparably broken our trust in your safety reporting and ability as a Commander in this airline. Not once during this process did you offer any contrition or show any acceptance that you have done wrong or that you would correct your behaviour in the future. Instead, you maintained your baseless position that you have done nothing wrong and that the company is targeting and victimising you. I have no trust that in similar circumstances you would fully and transparently report flight safety events in future and this is not a risk the business can take. Furthermore, I also believe that your failure to fully report these safety events, notwithstanding training you have received, amounts to gross negligence. Notwithstanding my finding that your conduct in respect of these issues is sufficiently serious to warrant a finding of gross misconduct, I am also aware that you have a live Final Written Warning on your record which was issued on 26 January 2024. I understand that during the course of this previous disciplinary process you were also evasive, obstructive and lacked any acceptance or remorse for your behaviour. This displays a concerning pattern of behaviour which Ryanair cannot tolerate. Having carefully considered the facts of this case, I regret to inform you we have decided to terminate your contract with Ryanair with immediate effect for gross misconduct, as a result of your underreporting, in addition to the fact that you have irreparably broken our trust and confidence in you to the extent that we can no longer allow you to exercise your duties as a Commander in this airline.’

[272]Thus, the Claimant was dismissed for: 272.1. intentional underreporting of onboard incidents; 272.2. a serious breach of operational and safety procedures, amounting to a wilful violation; 272.3. compromising the safety management system in Ryanair; 272.4. dishonesty; 272.5. irreparable breach of trust; 272.6. gross misconduct; and 272.7. gross negligence.

[273]There is no express reference in the dismissal letter to the specific policies, procedures or standards by reference to which these charges were said to be made out.

[274]Mr McKeon told the Claimant of his right to appeal. The appeal against dismissal (Issue 6(xiii))

[275]On 13 May 2024, the Claimant appealed against his dismissal. The grounds may be summarised as follows: 275.1. ‘The process and manner in which the disciplinary had been conducted’: he alleged that the disciplinary process was procedurally unfair because the allegations shifted from performance concerns to under-reporting, key documents were disclosed only after the disciplinary hearing, and the Respondent departed from its alleged non-punitive approach to goarounds. He contended that the treatment was discriminatory and linked to his prior discrimination complaints. 275.2. ‘Mis-categorisation of actual event of ASR of OFDM 1971’: He argued that the Tangier event should properly have been categorised as a ‘High Energy Approach’ rather than ‘Loss of Control In-flight’. He relied on OFDM and flight data, said the aircraft remained stabilised for part of the approach, and contended the remedial training and subsequent scrutiny were pretexts for targeting him. 275.3. ‘Debunking the false allegations in Steve’s formal review and conclusion’: he challenged numerous aspects of Mr McGrath’s review. He contended the review contained inaccuracies, exaggerations, and misleading statements motivated by racial animus and an intention to prejudice the safety investigation against him. 275.4. ‘False Under Reporting allegation’: he argued that he did not underreport the incidents because he discussed the flights with Mr McGrath shortly afterwards and submitted reports identifying the unstable approach and tailwind. He contends the allegation of under-reporting was only raised later as an ‘afterthought’ and formed part of a campaign to victimise him. 275.5. ‘Motive’: he maintained that he had no incentive to under-report because Ryanair operated a ‘no blame policy’ for go-arounds and because the relevant operational matters had already been disclosed in his reports. He alleges the disciplinary action was instead motivated by racial bias, retaliation connected to his Tribunal proceedings, and hostility from management.

[276]The appeal meeting took place on 29 May 2024, chaired by Mr Elbert with Ms Lorna Reynolds of HR attending and contributing. The Claimant was accompanied by a friend; he covertly recorded the meeting.

[277]The appeal meeting was long (over three hours) and wide-ranging but it lacked structure and focus. It was conducted in a discursive manner, with extended exchanges during which Mr Elbert and Ms Reynolds explained matters to the Claimant. Insofar as there was a focus, it was on the Claimant’s grounds of appeal. It did not review the evidence (such as it was; there was still no disciplinary pack) in a structured way. At times, the discussion descended into debate or argument, reflecting the absence of a clear agenda or framework; at times the Claimant was effectively tested on his knowledge and understanding rather than invited to respond to specific charges.

[278]Between 4 and 11 June 2024, Mr Elbert conducted fact-finding meetings with Mr McGrath, Mr Moss and Mr McKeon. Neither the fact nor the content of those meetings was disclosed to the Claimant at the time; he had no opportunity to comment on what was said. The appeal outcome (Issue 6(xiv))

[279]On 20 June 2024, Mr Elbert sent the Claimant the appeal outcome. He rejected all grounds of appeal and upheld the dismissal. He concluded that the disciplinary process had been fair, that the Claimant had sufficient notice and opportunity to respond, and that key documents had been adequately conveyed through briefings even if not physically provided.

[280]He rejected the substantive challenges to the findings, including allegations that the Formal Reviews were inaccurate or that the flight data had been miscategorised. He accepted that the safety review process had been properly followed and that the OFDM data demonstrated significant discrepancies between what occurred on the flights and what was reported in the Claimant’s ASRs.

[281]Mr Elbert concluded that the Claimant had materially underreported serious safety events, omitting multiple significant incidents across both flights, and that the Claimant had provided no adequate explanation for those omissions. He found that this underreporting was intentional and constituted a serious breach of reporting obligations.

[282]He also rejected the Claimant’s allegations of discrimination and targeting, finding no evidence of bias and concluding that the disciplinary action was driven solely by objective safety concerns arising from the flight data.

[283]Finally, he considered the Claimant’s conduct and attitude during the process, finding that he had been obstructive, had failed to take responsibility, and had shown no insight. This led to a loss of trust and confidence. Given the safety-critical nature of the role, Mr Elbert concluded that dismissal for gross misconduct was justified and proportionate, and the appeal was dismissed.

[284]On 5 August 2024, the Claimant amended his claim for a third time. The law Direct race discrimination

The law

[285]S.13(1) EqA provides: A person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

[286]The question whether the alleged discriminator acted ‘because of’ a protected characteristic is a question as to their reasons for acting as they did; the test is subjective (Nagarajan v London Regional Transport

[1999] ICR 877

, per Lord Nicholls at 884). Lord Nicholls considered the distinction between the ‘reason why’ question from the ordinary test of causation in Chief Constable of West Yorkshire Police v Khan

[2001] ICR 1065

at [29]: ‘Causation is a slippery word, but normally it is used to describe a legal exercise. From the many events leading up to the crucial happening, the court selects one or more of them which the law regards as causative of the happening. Sometimes the court may look for the “operative” cause, or the “effective” cause. Sometimes it may apply a “but for” approach…The phrases “on racial grounds” and “by reason that” denote a different exercise: why did the alleged discriminator act as he did? What, consciously or unconsciously, was his reason? Unlike causation, this is a subjective test. Causation is a legal conclusion. The reason why a person acted as he did is a question of fact.’

[287]However, are two broad categories of direct discrimination cases: cases in which the reason for the treatment is indissociable from the protected characteristic; and cases which turn on the mental processes of the alleged discriminator.

[288]The distinction was identified in James v Eastleigh Borough Council

[1990] 2 AC 751

, in which the House of Lords held that, because the Council, in determining the basis for free entry to a local authority swimming pool, adopted the criterion of state pension age (then 60 for women and 65 for men), which directly discriminated between men and women, it followed inevitably that any other differential treatment of men and women which adopted the same criterion must equally involve sex discrimination. The ostensible reason for the treatment (state pension age) was indissociable from sex. Such cases were distinct from cases in which the alleged discriminator ‘is motivated by an animus against persons of the complainant's sex or otherwise selects the complainant for the relevant treatment because of his or her sex’ (per Lord Goff at p.772D).

[289]If treatment is ‘because of’ a protected characteristic, it does not matter that the discriminator did not intend to discriminate or acted from a benign motive. In Amnesty International v Ahmed

[2009] ICR 1450

, Underhill P (as he then was) drew the distinction between motive and grounds, considering Nagarajan v London Regional Transport

[2000] 1 AC 501

, Chief Constable of the West Yorkshire Police v Khan,

[2001] ICR 1065

and James. He noted (at [33]) that while some direct discrimination cases are ‘criterion’ based, requiring no subjective enquiry; others did require it: ‘In some cases the ground, or the reason, for the treatment complained of is inherent in the act itself. If an owner of premises puts up a sign saying “no blacks admitted”, race is, necessarily, the ground on which (or the reason why) a black person is excluded. James v Eastleigh Borough Council

[1990] ICR 554

is a case of this kind. There is a superficial complication, in that the rule which was claimed to be unlawful—namely that pensioners were entitled to free entry to the council's swimming-pools—was not explicitly discriminatory. But it nevertheless necessarily discriminated against men because men and women had different pensionable ages: the rule could entirely accurately have been stated as “free entry for women at 60 and men at 65”. The council was therefore applying a criterion which was of its nature discriminatory: it was, as Lord Goff put it, at p 574 f, “gender based”. In cases of this kind what was going on inside the head of the putative discriminator—whether described as his intention, his motive, his reason or his purpose—will be irrelevant. The “ground” of his action being inherent in the act itself, no further inquiry is needed. It follows that, as the majority in James v Eastleigh Borough Council decided, a respondent who has treated a claimant less favourably on the grounds of his or her sex or race cannot escape liability because he had a benign motive.’

[290]In a ‘mental processes’ case the conventional approach to considering whether there has been direct discrimination is a two-stage process: considering first whether there has been less favourable treatment by reference to an actual or hypothetical comparator; and secondly going on to consider whether that treatment is because of the protected characteristic.

[291]Latterly, the appellate courts encouraged Tribunals to address both stages by considering a single question: the ‘reason why’ the employer did the act or acts alleged to be discriminatory. Was it on the prohibited ground or was it for some other reason? This approach does not require the construction of a hypothetical comparator: see, for example, the comments of Underhill J in Martin v Devonshires Solicitors

[2011] ICR 352

at [30].

[292]A continuing policy can constitute treatment for the purposes of s.13 EqA and, in particular, can constitute discrimination in the way in which access is afforded to, or opportunities are granted to receive, benefits, facilities and services and/or a detriment, as prohibited by s. 57(2)(a) and (d) EqA.

[293]The relevant law was summarised by Brooke LJ in Rovenska v General Medical Council

[1998] ICR 85

(at p.92), in a passage endorsed by the Court of Appeal in Parr v MSR Partners LLP and others

[2022] ICR 672

at [43]: ‘It was an important part of [counsel for the General Medical Council's] case that the appeal tribunal failed to take into account the fact that the cases on which it relied were all decided in relation to section 4 of the Act of 1976 or section 6 of the Sex Discrimination Act 1975 [the predecessors to s. 13 EqA 2010] … In those cases the discriminatory act complained of is not a one-off act of refusal: it arises out of the way in which the employer affords his or her employees access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or out of the employer refusing or deliberately omitting to afford the employees access to them. In these circumstances the courts have held that, if an employer adopts a policy which means that a black employee or a female employee is inevitably barred from access to valuable benefits, this is a continuing act of discrimination against employees who fall into these categories until the offending policy is abrogated.’

[294]In Reynolds v CLFIS (UK) Ltd

[2015] ICR 1010

at [36], the Court of Appeal confirmed that a ‘composite approach’ to an allegation of discrimination is unacceptable in principle: the employee who did the act complained of must himself have been motivated by the protected characteristic.

[295]It is an essential element of a direct discrimination claim that the less favourable treatment must give rise to a detriment (s.39(2)(d) EqA). There is a detriment if ‘a reasonable worker would or might take the view that [the treatment was] in all the circumstances to his detriment’ (Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] ICR 337

at [35]). An unjustified sense of grievance does not fall into that category.

[296]A sense of grievance or injustice may amount to a sufficient detriment where a person is treated less favourably in terms of the treatment of a complaint. In Cordant Security v Singh, unreported,

UKEAT/0144/15/LA

, the Claimant raised a grievance alleging a colleague had racially abused him. The employer did not investigate his grievance but did investigate a grievance raised by a white colleague. The ET found that the employer treated the Claimant less favourably because of his race in that respect. However, it also found as a fact that the Claimant’s complaint of racial abuse was completely fabricated. At the remedies hearing, it found that he had not suffered any injury to feelings and awarded no compensation; however, it made a declaration that the Respondent had directly discriminated against him. The EAT held that a declaration that there had been a breach of section 39(2)(d) of the Equality Act 2010 involved a finding that there had been both discrimination (here, less favourable treatment because of a protected characteristic) and detriment to the employee concerned. On the facts as found by the Tribunal, the Claimant could not have suffered any detriment: the complaint was entirely fabricated; and he did not have any sense of grievance or injustice arising out of the failure to investigate it. Absent any detriment, the appeal was allowed. Victimisation

[297]S.27 Equality Act 2010 (‘EqA’) provides as follows:(1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.

(2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act. […]

[298]The Equality Act 2010 Code of Practice on Employment provides at para 9.11: ‘Victimisation does not require a comparator. The worker need only show that they have experienced a detriment because they have done a protected act or because the employer believes (rightly or wrongly) that they have done or intend to do a protected act’.

[299]Ss.2(d) covers allegations made by the claimant that the employer or another person has contravened the EqA, whether or not they are express. It is not necessary that the EqA be mentioned, but the asserted facts must, if verified, be capable of amounting to a breach of the EqA.

[300]In Durrani v London Borough of Ealing EAT 0454/12 the EAT upheld the Tribunal’s decision that references to ‘being discriminated against’ referred to general unfairness rather than detrimental action based on the Claimant’s race, although the EAT emphasised that the case should not be taken as ‘any general endorsement for the view that where an employee complains of “discrimination” he has not yet said enough to bring himself within the scope of s.27 EqA’. All will depend on the circumstances of the particular case. In Kokomane v Boots Management Services

[2025] EAT 38

, the EAT held that, when faced with a situation where the protected act is not a straightforward express discrimination allegation, tribunals should ask the question: What would the Respondent have understood the complaint to mean from the information provided by the Claimant as part of her complaint?

[301]The Tribunal must determine whether the relevant decision was influenced by the doing of a protected act. This is not a ‘but for’ test, it is a subjective test. The focus is on the ‘reason why’ the alleged discriminator acted as s/he did (Chief Constable of West Yorkshire Police v Khan

[2001] IRLR 830

). The protected act need only be a ‘significant influence’ on the decision (Nagarajan).

[302]In a leading case on the law of direct discrimination and victimisation (in s.13(1) and s.27 EqA), Chief Constable of Greater Manchester v Bailey

[2017] EWCA Civ 425

, Underhill LJ held that the test for causation in direct discrimination and victimisation is the same (at [12]): “Both sections use the term “because”/“because of”. This replaces the terminology of the predecessor legislation, which referred to the “grounds” or “reason” for the act complained of. It is well-established that there is no change in the meaning, and it remains common to refer to the underlying issue as the “reason why” issue. In a case of the present kind establishing the reason why the act complained of was done requires an examination of what Lord Nicholls in his seminal speech in Nagarajan v London Regional Transport

[2000] 1 AC 501

, referred to as “the mental processes” of the putative discriminator (see at p. 511 A-B). Other authorities use the term “motivation” (while cautioning that this is not necessarily the same as “motive”). It is also well-established that an act will be done “because of” a protected characteristic, or “because” the claimant has done a protected act, as long as that had a significant influence on the outcome: see, again, Nagarajan, at p. 513B.’

[303]The same definition of ‘detriment’ as applies in direct discrimination also applies in victimisation. The burden of proof in discrimination cases

[304]The burden of proof provisions are contained in s.136 EqA:(1) This section applies to any proceedings relating to a contravention of this Act.

(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.

(3) But subsection (2) does not apply if A shows that A did not contravene the provision.

[305]The operation of the burden of proof provisions was summarised by Underhill LJ in Base Childrenswear Ltd v Otshudi

[2020] IRLR 118

at [18]: ‘It is unnecessary that I reproduce here the entirety of the guidance given by Mummery LJ in Madarassy.1 He explained the two stages of the process required by the statute as follows: (1) At the first stage the Claimant must prove “a prima facie case”. That does not, as he says at para. 56 of his judgment (p. 878H), mean simply proving “facts from which the Tribunal could conclude that the Respondent 'could have' committed an unlawful act of discrimination”. As he continued (pp. 878-9): “56. … The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a Tribunal 'could conclude' that, on the balance of probabilities, the Respondent had committed an unlawful act of discrimination. 57. 'Could conclude' in section 63A(2) [of the Sex Discrimination Act 1975] must mean that 'a reasonable Tribunal could properly conclude' from all the evidence before it. …” 1 Madarassy v Nomura International plc

[2007] ICR 867

, CA (3) If the Claimant proves a prima facie case the burden shifts to the Respondent to prove that he has not committed an act of unlawful discrimination – para. 58 (p. 879D). As Mummery LJ continues: “He may prove this by an adequate non-discriminatory explanation of the treatment of the complainant. If he does not, the Tribunal must uphold the discrimination claim.” He goes on to explain that it is legitimate to take into account at the first stage all evidence which is potentially relevant to the complaint of discrimination, save only the absence of an adequate explanation.’

[306]The consequence of the way that s.136 works is that, if a respondent fails to show that the relevant protected characteristic played no part in its motivation for doing the act complained of, a tribunal is not obliged to make a positive finding as to whether or how it did so: indeed one of the reasons for the (partial) reversal of the burden of proof which it effects is that it can often be very difficult for a claimant to prove what is going on in the mind of the putative discriminator (per Underhill LJ in Otshudi at [44]).

[307]In Field v Steve Pye & Co (KL) Ltd and Others

[2022] IRLR 948

, HHJ Tayler noted that an Employment Tribunal should not ignore evidence that suggests discrimination. In Artem Limited v Edwins

[2024] EAT 136

, he added that it is equally important that Employment Tribunals do not ignore evidence that suggests there has not been discrimination. What must be ignored at the first stage is any exculpatory explanation for the treatment.

[308]The burden of proof provisions should not be applied by the Tribunal in an overly mechanistic manner: see Khan v The Home Office

[2008] EWCA Civ 578

per Maurice Kay LJ at [12]. The approach laid down by s.136 EqA will require careful attention where there is room for doubt as to the facts necessary to establish discrimination, but where the Tribunal is able to make positive findings on the evidence one way or another, the provisions of s.136 will be of little assistance: see Martin v Devonshires Solicitors

[2011] ICR 352

at [39], approved by the Supreme Court in Hewage v Grampian Health Board

[2012] ICR 1054

at [32].

[309]As for the ‘something more’ required to shift the burden, Sedley LJ observed in Deman v Equality and Human Rights Commission

[2010] EWCA Civ 1279

at [19]: ‘the “more” which is needed to create a claim requiring an answer need not be a great deal. In some instances it will be furnished by non-response, or an evasive or untruthful answer, to a statutory questionnaire. In other instances it may be furnished by the context in which the act has allegedly occurred.’ Unfair dismissal

[310]S.94 Employment Right Act 1996 (‘ERA’) provides that an employee with sufficient qualifying service has the right not to be unfairly dismissed by his employer.

[311]S.98 ERA provides so far as relevant:(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show – (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2) A reason falls within this subsection if it— ... (c) relates to the conduct of the employee ... (4) ... 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 a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.

[312]In Orr v Milton Keynes Council

[2011] ICR 704

at [78], Aikens LJ summarised the correct approach to the application of s.98 in misconduct cases: ‘(1) The reason for the dismissal of an employee is a set of facts known to an employer, or it may be a set of beliefs held by him, which causes him to dismiss an employee. (2) An employer cannot rely on facts of which he did not know at the time of the dismissal of an employee to establish that the “real reason” for dismissing the employee was one of those set out in the statute or was of a kind that justified the dismissal of the employee holding the position he did. (3) Once the employer has established before an employment Tribunal that the “real reason” for dismissing the employee is one within what is now section 98(1)(b), ie that it was a “valid reason”, the Tribunal has to decide whether the dismissal was fair or unfair. That requires, first and foremost, the application of the statutory test set out in section 98(4)(a). (4) In applying that subsection, the employment Tribunal must decide on the reasonableness of the employer's decision to dismiss for the ‘real reason’. That involves a consideration, at least in misconduct cases, of three aspects of the employer's conduct. First, did the employer carry out an investigation into the matter that was reasonable in the circumstances of the case; secondly, did the employer believe that the employee was guilty of the misconduct complained of; and, thirdly, did the employer have reasonable grounds for that belief.” If the answer to each of those questions is ‘yes’, the employment Tribunal must then decide on the reasonableness of the response of the employer. (5) In doing the exercise set out at (4), the employment Tribunal must consider, by the objective standards of the hypothetical reasonable employer, rather than by reference to its own subjective views, whether the employer has acted within a ‘band or range of reasonable responses’ to the particular misconduct found of the particular employee. If it has, then the employer's decision to dismiss will be reasonable. But that is not the same thing as saying that a decision of an employer to dismiss will only be regarded as unreasonable if it is shown to be perverse. (6) The employment Tribunal must not simply consider whether they think that the dismissal was fair and thereby substitute their decision as to what was the right course to adopt for that of the employer. The Tribunal must determine whether the decision of the employer to dismiss the employee fell within the band of reasonable responses which ‘a reasonable employer might have adopted’. (7) A particular application of (5) and (6) is that an employment Tribunal may not substitute their own evaluation of a witness for that of the employer at the time of its investigation and dismissal, save in exceptional circumstances. (8) An employment Tribunal must focus their attention on the fairness of the conduct of the employer at the time of the investigation and dismissal (or any appeal process) and not on whether in fact the employee has suffered an injustice.’

[313]At (4) above, Aikens LJ was summarising the well-known test in British Homes Stores Ltd v Burchell

[1980] ICR 303

at p.304.

[314]In Turner v East Midlands Trains Ltd

[2013] ICR 525

, Elias LJ (at paras 16–17) cited paragraphs (4) to (8) from that extract in Aikens LJ’s judgment in Orr and added: ‘As that extract makes clear, the band of reasonable responses test does not simply apply to the question whether the sanction of dismissal was permissible; it bears upon all aspects of the dismissal process. This includes whether the procedures adopted by the employer were adequate: see Whitbread plc (trading as Whitbread Medway Inns) v Hall

[2001] ICR 699

; and whether the pre-dismissal investigation was fair and appropriate: see J Sainsbury plc v Hitt

[2003] ICR 111

[315]Even if the dismissal decision falls within the band of reasonable responses, it may still be unfair, if the Respondent has not followed a fair procedure. The Tribunal must evaluate the significance of the procedural failing, because ‘it will almost inevitably be the case that in any alleged unfair dismissal a Claimant will be able to identify a flaw, small or large, in the employer’s process’ (Sharkey v Lloyds Bank Plc

UKEATS/0005/15/JW

at [26]).

[316]When considering whether the employer acted reasonably, the Tribunal has to look at the question in the round and without regard to a lawyer’s technicalities (Taylor v OCS Group Limited

[2006] ICR 1602

at [48]). This need for a holistic approach has been reiterated in later cases, notably Sharkey v Lloyds Bank Plc

UKEATS/0005/15/JW

and NHS 24 v Pillar

UKEATS/005/16/JW

[317]Circumstances will dictate how extensive an investigation is required. In Shrestha v Genesis Housing Association Ltd

[2015] IRLR 399

at [23], the Court of Appeal held (per Richards LJ): ‘To say that each line of defence must be investigated unless it is manifestly false or unarguable is to adopt too narrow an approach and to add an unwarranted gloss to the Burchell test. The investigation should be looked at as a whole when assessing the question of reasonableness. As part of the process of investigation, the employer must of course consider any defences advanced by the employee, but whether and to what extent it is necessary to carry out specific inquiry into them in order to meet the Burchell test will depend on the circumstances as a whole.’

[318]In looking at whether dismissal was an appropriate sanction, the question is not whether some lesser sanction would, in the Tribunal’s view, have been appropriate, but rather whether dismissal was within the band of reasonable responses. The fact that other employers might reasonably have been more lenient is irrelevant (British Leyland (UK) Ltd v Swift

[1981] IRLR 91

[319]There is no requirement in the unfair dismissal analysis to determine whether conduct amounts to gross misconduct, which involves a separate contractual concept. That was made clear by Langstaff J in West v Percy

UKEAT/0101/15

at [24-26 and 28]: ‘[…] By contrast, gross misconduct is a contractual concept. Where there is misconduct, an employee may be dismissed, and he may be dismissed either with or without notice: but if without notice, there is likely to be an issue as to whether the misconduct is or is not gross. That is a contractual, not statutory, issue upon which the payment of the sum otherwise due during a notice period would depend if an action for wrongful dismissal were to be brought (no such action was brought in the present case). Whether there has been gross misconduct is a finding of fact dependent upon what actually happened. By contrast, a decision in respect of section 98 depends not upon what happened but upon asking what the employer thought had happened, which is a different enquiry. […] It may be more usual that a dismissal is held fair where there is something that might be described as gross misconduct contractually, and as such within the terms of the employer's disciplinary procedure (especially if that is contractual) it would be held unfair. It may be unusual that a dismissal is held unfair where there is no gross misconduct. But in neither case is the presence or absence of gross misconduct, as such, determinative. Gross misconduct is, rather, a label that is applied by the courts in determining contractual issues, and though it may be a trigger for other actions, to proceed to determine a claim under section 98(4) by asking whether the label is appropriate or not is to take a completely unnecessary step. The question is whether what the employer thought had happened, in the circumstances in which the employer thought the conduct to have occurred, was or was not sufficient to justify the employer's actions so as to be held not unfair within section 98(4).’

[320]In Hope v BMA EAT/2/21/000187 Choudhury P held at [32]: […] that contractual context was merely one of the circumstances to be taken into account in determining whether the employer had acted reasonably or unreasonably in treating that reason as sufficient to dismiss. An employer that seeks to stipulate seemingly trivial or minor misconduct as gross misconduct warranting summary termination can expect careful scrutiny by the tribunal to determine whether dismissal for such misconduct was within the band of reasonable responses. Of course, there may well be situations where the employer is, as a result of the particular requirements of the industry or the environment in which work is carried out, justified in treating what might appear to the outside observer as minor matters as warranting summary termination. However, in general, the real question is and remains the statutory one of whether the employer acted reasonably or unreasonably in all the circumstances in treating the conduct as sufficient reason to dismiss.’

[321]It is a basic proposition in disciplinary proceedings that the charge against the defendant or the employee facing dismissal should be precisely framed, and that evidence should be confined to the particulars given in the charge. Care must be taken with the framing of a disciplinary charge and the circumstances in which it is permissible to go beyond that charge in a decision to take disciplinary action are very limited (Strouthos v London Underground Ltd

[2004] IRLR 636

[322]The question is not what charges the employer may have been entitled to charge on the material provided to the employee; it is what charges have in fact been made (Sattar v Citibank NA

[2020] IRLR 104

at [56]).

[323]Strouthos and other cases in this area have recently been considered in Lamb v Teva UK Ltd

[2026] UKEAT 8

. HHJ Tayler emphasised that the question whether an employee knows the charge is a matter of substance rather than form (see [61]).

[324]An employer should normally provide all relevant evidence, including statements, to the employee (A v B at [83]). Further, if someone responsible for the investigation does not share a material fact with the decision-maker, this can render the dismissal unfair (Uddin v Ealing LBC

[2020] IRLR 332

at [78-87]).

[325]In deciding whether the employer carried out such investigation as was reasonable in the circumstances, the relevant circumstances include the gravity of the charges and their potential effect upon the employee. In serious cases, where the finding could affect the employee’s reputation and prospects of securing future employment in their chosen field, the allegations must be the subject of the most careful and conscientious investigation. The investigator should focus no less on potential evidence that may favour the employee than on evidence directed towards proving the charges (A v B

[2003] IRLR 405

at [58, 60 and 64]).

[326]If the investigation is defective, it is no answer to say that it made no difference to the decision (A v B

[2003] IRLR 405

at [86]). Polkey

[327]Where a Tribunal finds that a dismissal was unfair, it must go on to consider the chance that the employment would have terminated in any event, had there been no unfairness (the Polkey issue). Guidance as to the enquiry the Tribunal must undertake was provided in Whitehead v Robertson Partnership UKEAT [2002] 7 WLUK 539 at [22]. ‘[…] it is, we think, incumbent upon the Employment Tribunal to demonstrate their analysis of the hypothetical question by explaining their conclusions on the following sub-questions: 1. what potentially fair reason for dismissal, if any, might emerge as a result of a proper investigation and disciplinary process. Was it conduct? Was it some other substantial reason, that is a loss of trust and confidence in the employee? Was it capability? 2. depending on the principal reason for any hypothetical future dismissal would dismissal for that reason be fair or unfair? Thus, if conduct is the reason, would or might the Respondent have reasonable grounds for their belief in such misconduct even although the Employment Tribunal found as a fact that misconduct was not made out for the purposes of the contribution argument; alternatively, if for some other substantial reason, was that a sufficient reason for dismissal: similarly, capability. 3. even if a potentially fair dismissal was available to the Respondent, would he in fact have dismissed the Appellant as opposed to imposing some lesser penalty, and if so, would that have ensured the Appellant's continued employment?’

[328]In Hill v Governing Body of Great Tey Primary School

[2013] IRLR 274

the EAT (Langstaff P presiding) noted that a Polkey reduction has the following features: ‘First, the assessment of it is predictive: could the employer fairly have dismissed and, if so, what were the chances that the employer would have done so? The chances may be at the extreme (certainty that it would have dismissed, or certainty it would not) though more usually will fall somewhere on a spectrum between the two extremes. This is to recognise the uncertainties. A Tribunal is not called upon to decide the question on balance. It is not answering the question what it would have done if it were the employer: it is assessing the chances of what another person (the actual employer would have done) … the Tribunal has to consider not a hypothetical fair employer, but has to assess the actions of the employer who is before the Tribunal, on the assumption that the employer would this time have acted fairly though it did not do so beforehand.' Contribution

[329]S. 123(6) ERA provides, in relation to the compensatory award: Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding

[330]In order for a deduction to be made, the conduct in question must be culpable or blameworthy in the sense that, whether or not it amounted to a breach of contract or tort, it was foolish or perverse or unreasonable in the circumstances (Nelson v BBC (No.2)

[1980] ICR 110

[331]S.122(2) ERA provides, in relation to the basic award: Where the tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce that amount accordingly.

[332]The EAT in Langston v Department for Business, Enterprise and Regulatory Reform, EAT 0534/09 confirmed that the same criteria (‘culpable or blameworthy’) apply to deductions from the basic award.

[333]The Court of Appeal in Rao v Civil Aviation Authority

[1994] ICR 495

(at 502F) held that the deduction from the basic award for contribution may not be the same as the deduction from the compensatory award for contribution, if there has already been a deduction by reason of the Tribunal’s conclusion as to the likelihood of the employee remaining in employment (the Polkey issue). The EAT in Lenlyn UK Ltd v Kular EAT 0108/16 at [81] confirmed that, where there is a significant overlap between the factors taken into account when making a Polkey deduction, and when making a deduction for contributory conduct: ‘the ET should have considered expressly, and did not, whether, in the light of that overlap, it was just and equitable to make a finding of contributory fault, and if so, what its amount should be. That overlap means that there is a real risk, which, I consider again, the ET did not take into account, that the Claimant was being penalised twice for the same conduct. I allow the cross-appeal on this point and remit this case for the ET to consider again, after it has reconsidered the Polkey issue, what deduction, if any, for contributory fault is just and equitable, in the light of that overlap.’

[334]However, the principal of moderating a reduction for contribution in the light of a reduction already made for Polkey cannot apply to the basic award, which is not affected by the Polkey principle: Granchester Construction (Eastern) Ltd v Attrill, EAT 0327/12, per Langstaff P at [19]. The Devis v Atkins principle

[335]A tribunal may also reduce compensation when it can be demonstrated that the employee was liable to dismissal anyway for a reason unknown to the employer at the time of the dismissal (Devis v Atkins

[1977] ICR 662

). A reduction of this type is made under s.122(2) ERA (to the basic award) and s.123(1) ERA (to the compensatory award). Wrongful dismissal

[336]A complaint of wrongful dismissal is a common law action based on breach of contract and is quite different from a statutory complaint of unfair dismissal. The EAT considered the distinction in Enable Care and Home Support Ltd v Pearson EAT 0366/09, where both were claimed. In a wrongful dismissal claim the Tribunal was concerned not with the reasonableness of the employer’s decision to dismiss but with the factual question: was the employee guilty of conduct so serious as to amount to a repudiatory breach of the contract of employment, entitling the employer to summarily terminate the contract?

[337]In Neary v Westminster

[1999] IRLR 288

at [33], Lord Jauncey reviewed the authorities on the question of when summary dismissal is justified, concluding: ‘the […] cases demonstrate clearly that conduct amounting to gross misconduct justifying dismissal must so undermine the trust and confidence which is inherent in the particular contract of employment that the master should no longer be required to retain the servant in his employment.’

[338]In Mbubaegbu v Homerton University Hospital

UKEAT/0218/17

, an unreported 2018 case, the EAT held that it is possible to justify summary dismissal on the basis of a series of a series of acts demonstrating a pattern of conduct to be of sufficient seriousness to undermine the relationship of trust and confidence between employer and employee (per Choudhury P at [32]).

[339]In answering the question of whether an employer is entitled to dismiss an employee without notice, by reason of his repudiatory breach of his contract of employment, the employer is entitled to rely not only on the misconduct for which the employee was dismissed, but also on misconduct of which it was unaware at the time but which would have allowed it to terminate the contract: Boston Deep Sea Fishing Ltd v Ansell

(1888) 39 Ch D 339

. Conclusions: direct race discrimination The burden of proof

[340]The Claimant relied on several matters as material from which the Tribunal could reasonably conclude that Ryanair’s treatment of him was materially influenced by his race.

[341]He first asserts that out of around seven hundred pilots at Stansted in 2021, only five were Black, which he says demonstrates racial bias in recruitment. The Claimant has not identified the source of those figures, and Ryanair does not collect diversity statistics. Even if the figures were accurate, in the absence of any contextual statistics (the proportion of Black pilots across the industry more widely; the proportion of Black applicants to Ryanair; and the proportion of those applicants who were successful), the assertion is not probative of a discriminatory approach to recruitment by Ryanair.

[342]The Claimant asserts that, in 2021, only three pilots were stopped or held back from commencing CU training, of whom two were Black (himself and a Somalian pilot) and one was Eastern European. He asserts that this meant all Black pilots qualified for CU training at that time were held back, whereas a large number of white pilots progressed, despite his having significantly greater experience than most of those who did progress. Mr McGrath refused to give approval to 15 pilots to proceed with CU; almost all of them had attendance issues. The two pilots the Claimant specifically refers to both had no-shows, like the Claimant. None of the pilots who were progressed had no-shows; they were in materially different circumstances from the Claimant and the Somalian pilot, both of whom were later promoted.

[343]The Claimant also relies on a Black Nigerian pilot, whom we will refer to as HC, who he says had previously been held back from CU training despite meeting the criteria, and that the delay in that case was widely known. Mr Rogers’ evidence was that HC joined in 2005, was only promoted to Captain after a second CU attempt in 2015, was later demoted following line incidents; he subsequently resigned. HC did not complain of discrimination, either internally or to the ET. There was no evidence before us that - at the point when he was not promoted - HC met the criteria, nor as to how he performed in the assessment and interview parts of that recruitment exercise, nor that there was anything improper in the way that he was assessed for promotion.

[344]In our judgment, none of these matters constitutes facts from which the Tribunal could reasonably conclude that there was a pattern of Ryanair discriminating against Black pilots because of race and/or that it discriminated against the Claimant because of his race. Issue 2(i) (direct race discrimination): Steve McGrath retrospectively imposing bars on continuation of CU training by reference to the no-show’. Issue 2(ii) (direct race discrimination); Steve McGrath’s cancellation, withdrawal, delay, deferral and/or suspension of CU training. The Claimant avers that this constitutes a continuing state of affairs with effect from September 2021.

[345]In his witness statement (paragraph 89) the Claimant wrote this: ‘For clarity, I do not believe that the initial reason I was stopped from entering the CU was related to my race or ethnicity; I remain certain that the original decision was based solely on the mistaken belief that I had participated in strike action. However, I believe that my race became a significant factor in the company’s subsequent reluctance to put me forward or to rectify their mistake once it was clear that I had not gone on strike.’

[346]The direct race discrimination claim fails in relation to the initial decision not to offer him an interview because of this concession.

[347]We do not accept the Claimant’s contention that he was singled out or removed from the process because the Respondent believed he had been a striker and that no-shows were a proxy for striking pilots. There is no credible evidence that the Respondent ever believed the Claimant had participated in strike action, still less that any such belief was operative on the relevant decisions; the Claimant relies on statements made to him by Mr Eoin Ryan; we have found they were not made (para 66); the Claimant’s own contemporaneous statement indicated that he did not believe Mr Declan Ryan thought he had gone on strike (para 79); the data does not support the theory (para 76).

[348]Given that the Respondent never believed that he had gone on strike, there was no point at which they were disabused of the fact and - as he alleges in the passage from his witness statement quoted above - ‘race became a significant factor’ (why that was, he does not explain); the Claimant’s theory simply has no foundation.

[349]We accept Mr McGrath’s explanation that, in the context of a heavily oversubscribed CU process following the pandemic, attendance and punctuality were treated as relevant factors when sequencing eligible candidates. It is consistent with the relevant section of the Rough Guides stating that ‘attendance records will be considered when assessing suitability for permanent employment and promotion’ (above at para 50). That was a non-discriminatory, criterion to adopt. Under it, the Claimant’s December 2020 no-show was taken into account initially and it remained the operative factor. We have already rejected the Claimant’s reliance on the treatment of his Somalian or Nigerian colleagues as a basis for drawing an inference that race was a factor (paras 342-344). We are satisfied that the Claimant’s race played no part in the treatment.

[350]The claim of direct race discrimination does not succeed. Issue 2(iii) (direct race discrimination): a failure by Declan Ryan [and Diarmuid Rogers] to adequately investigate the grievance [and/or grievance appeal]

[351]The Claimant alleged that Mr Declan Ryan failed properly to investigate the grievance and that this was direct race discrimination. Mr Ryan had no involvement in investigating the grievance or the grievance appeal. The Claimant withdrew the allegation of race discrimination at the hearing; it is dismissed.

[352]We have concluded that there was no failure by Mr Rogers in his investigation of the appeal. In our view, he sought properly to understand and examine the issues in the grievance. He was hampered in those attempts by the fact that the Claimant made generalised assertions without providing cogent supporting evidence.

[353]There was no evidence from which the Tribunal could reasonably conclude that his investigation was influenced in any way by race. The claim of race discrimination is not well-founded and is dismissed. Issue 2(iv) (direct race discrimination): ‘Someone in Ryanair senior management giving cause for Dr Orton to suspect that continued pursuit of grievances and/or legal action would jeopardise the Claimant’s employment’

[354]This claim fails on its facts: we have found that the remarks were not made (para 84 onwards). In any event the claim is long out of time; the Claimant had access to union advice at all times; there is no good explanation for the delay in bringing proceedings; it is not just and equitable to extend time. Issue 2(v)(direct race discrimination): Diarmuid Rogers’ rejection of the grievance and grievance appeal both in general and in the terms set out at [29] ET1

[355]Mr Rogers did not deal with the grievance; the claim in respect of that process must fail.

[356]As for his rejection of the grievance appeal, there was no evidence from which we could reasonably conclude that Mr Rogers’ decision to dismiss the appeal, or the language used in doing so, was in any way influenced by the Claimant’s race. The Claimant did not raise race as an issue during the grievance appeal process itself, and nothing in the contemporaneous documents or the hearing notes supported an inference of racial motivation. We are satisfied that the Claimant’s race played no part in Mr Rogers’ rejection of the appeal.

[357]The claim of direct race discrimination does not succeed. Issue 2(vi) (direct race discrimination): Diarmuid Rogers imposing a bar on resumption of CU training until after July 2022 Issue 2(vii) (direct race discrimination); Steve McGrath and Diarmuid Rogers failure to arrange a CU interview from 29 December 2021 onwards

[358]We take these two issues together: Issue 2(vii) does not add anything materially distinct to Issue 2(vi). The Claimant was absent on sick leave and then annual leave until his return on 7 February 2022. The appeal outcome was provided two weeks later, on 21 February 2022. The complaint essentially concerns Mr Rogers’ indication in his outcome letter that the Claimant could not be considered for a CU course until after July 2022 (para 118).

[359]We reject the Claimant’s allegation of direct race discrimination in relation to this decision. Although we conclude below (paras 380-385) that the assignment of the 1 July 2022 date amounted to victimisation, we were not satisfied that the decision was influenced to any extent by the Claimant’s race. There was nothing to justify an inference that Mr Rogers acted because of race, as opposed to reacting adversely to the Claimant’s protected acts.

[360]The claim of direct race discrimination is dismissed. Issue 2(viii) (direct race discrimination); Ross Dickie and Diarmuid Rogers not appointing the Claimant to the SFI role.

[361]The Claimant withdrew this allegation against Mr Dickie and Mr Rogers at the hearing; it is dismissed. Conclusions: protected acts (victimisation) Issue 5(i) (protected act): The Claimant’s grievance via the Respondent’s online portal alleging he had received less favourable treatment by Steve Mcgrath on 15 October Issue 5(ii) (protected act): Representations made by the Claimant with regards to discriminatory treatment “he was being treated differently to everyone else” and that “he felt personally attacked”

[362]Although the Claimant complained in his written grievance of being singled out, treated unfairly and denied equal opportunities, the grievance contained no express allegation of discrimination under the Equality Act and made no reference to race or any other protected characteristic. Nor did it amount to an implicit allegation of Equality Act discrimination: despite the references to equal opportunities and the equality officer, the grievance did not identify, even indirectly, any protected characteristic; it challenged the Respondent’s decision in terms of fairness and consistency.

[363]At the grievance meeting, the Claimant did not develop the complaint by reference to race or any protected characteristic. Nor are we satisfied that Mr Whiteside, or any other manager, regarded the grievance as raising, or foreshadowing, a complaint of unlawful discrimination.

[364]We have concluded that neither the grievance itself, nor the representations made at the grievance hearing were protected acts. Issue 5(iii) (protected act): The Claimant’s grievance appeal on 14 December 2021 “I have suffered less favourable treatment, bullying and lack of opportunity” and “Ryanair’s treatment of applying a non-published procedure and stopping my training abruptly constitutes bullying and harassment”

[365]We concluded that the grievance appeal of 14 December 2021 constituted a protected act. Although the Claimant did not refer to race, he stated that the selection of younger and less experienced pilots ‘could be construed as age discrimination’, which we consider sufficient to amount to an Equality Act allegation.

[366]Mr Milford made a late attempt in his closing submissions to argue bad faith. However, he acknowledged that this was not pleaded, there had been no application to amend and it was not put to the Claimant in cross-examination. Accordingly, we did not permit Ryanair to rely on this defence. Issue 5(iv) (protected act): Representations made by the Claimant during the grievance appeal hearing on 20 January 2022 that he was treated less favourably to others

[367]The Tribunal concluded that, although the Claimant did not mention discrimination at the hearing, he had mentioned it in his written document which, we have already concluded, was a protected act. Further, we are satisfied that Mr Rogers believed that the Claimant might do another protected act because he explicitly asked him during the meeting whether the appeal was being pursued with a view to legal action. Given the nature of the grievance - and the express reference to discrimination in the grievance document - we think it likely that Mr Rogers believed that the Claimant might bring an Equality Act discrimination claim in the ET. Issue 5(v) (protected act): A letter from the Claimant’s solicitors of 11 March 2022

[368]The Respondent accepts that the letter of this date from the Claimant’s solicitor was a protected act. Issue 5(vi) (protected act): The contents of Claimant’s ET1 presented on 19 May 2022.

[369]The Respondent accepts that the ET1 was a protected act. Conclusions: victimisation Issue 2(ii)/6(i) (victimisation): Steve McGrath’s cancellation, withdrawal, delay, deferral and/or suspension of CU training. The Claimant avers that this constitutes a continuing state of affairs with effect from September 2021.

[370]Mr McGrath’s decision not to pass the Claimant to interview is not relied on as an act of victimisation (at that point the Clamant had not done a protected act).

[371]The Claimant says that his focus is on the subsequent failure to rectify the situation. However, the allegation is made against Mr McGrath. He was not the decision-maker in the grievance or the grievance appeal. It was not Mr McGrath who decided in February 2022 that there should be a further pause in the Claimant’s progress; that was Mr Rogers.

[372]The claim of victimisation does not succeed. Issue 2(iv)/6(i) (victimisation): ‘Someone in Ryanair senior management giving cause for Dr Orton to suspect that continued pursuit of grievances and/or legal action would jeopardise the Claimant’s employment’

[373]The claim fails on its facts: we have found that the remarks were not made (para 84 onwards). Issue 2(iii)/6(i)(victimisation): A failure by Declan Ryan and Diarmuid Rogers to adequately investigate the grievance and/or grievance appeal Issue 2(v)/6(i)(victimisation): Diarmuid Rogers’ rejection of the grievance and grievance appeal both in general and in the terms set out at [29] ET1

[374]Given the concession that Mr Ryan had no involvement in the grievance or appeal, there was no longer any factual basis on which the allegation could be maintained as a claim of victimisation; it is dismissed.

[375]Mr Rogers did not deal with (or reject) the grievance; the claims in respect of that process must fail.

[376]As for his investigation of the grievance appeal, the claim of victimisation fails on its facts because there was no failure to investigate for the reasons given above (para 352).

[377]We have already recorded our conclusion that, as at the date of the appeal meeting, Mr Rogers believed the Claimant might do a protected act (para 367); his adverse reaction to this was evident.

[378]In terms of the outcome, we have concluded that the substantive decision to dismiss the appeal was unobjectionable and not influenced by the protected act or the potential for Tribunal proceedings.

[379]However, the language used in the outcome (‘very serious and disappointing’ and ‘disingenuous’, a term which we find connotes dishonesty) went beyond what was necessary to determine the appeal. In reprimanding the Claimant in this way, we have concluded that Mr Rogers was showing hostility to the Claimant; we are satisfied that this hostility was in part because of his belief that the Claimant might issue proceedings. In doing so he subjected the Claimant to a detriment: we are satisfied that the Claimant’s sense of grievance was, in this instance, justified. This case can be distinguished from the Cordant Security case (on which Mr Milford relied), in which the EAT found that the claimant had not suffered any justifiable sense of grievance or injustice.

[380]This claim of victimisation succeeds against the First Respondent. Issue 2(vi)/6(i) (victimisation): Diarmuid Rogers imposing a bar on resumption of CU training until after July 2022 Issue 2(vii)/6(i) (victimisation): Steve McGrath and Diarmuid Rogers failure to arrange a CU interview from 29 December 2021 onwards

[381]As above, we take these two allegations together; their focus is on Mr Rogers’ decision in his grievance appeal outcome letter that the Claimant could not be considered for a CU course until after 1 July 2022.

[382]In view of our finding that Mr Rogers had shown hostility towards the Claimant through the language used in the grievance outcome letter, and our conclusion that this was in part because he believed the Claimant might bring an ET Equality Act claim, there were facts from which the Tribunal could reasonably conclude that his decision to stipulate that the Claimant could not even be considered for a CU course until 1 July 2022 amounted to a further act of victimisation. The burden passed to Mr Rogers to provide an adequate nondiscriminatory reason for the decision.

[383]Mr Rogers’s explanation for that decision is set out above at paras 120-121. By the time the outcome letter was written, the Claimant had already returned to flying duties. In those circumstances we did not accept that he required a further period to settle in or recover, still less a further four months before even being eligible for consideration. As the Claimant pointed out, if he was fit to fly aircraft, he was fit to engage with the CU process.

[384]The wording of the letter, in particular the phrase ‘subject to’, and the fact that the Claimant would not be considered at all before 1 July suggested a form of probationary period, rather than a supportive step. We also took into account that the decision was later reversed, which undermined the plausibility of the explanation offered. We were not satisfied that the Respondent had discharged the burden of proving that the decision was in no sense whatsoever motivated by the Claimant’s protected acts.

[385]The effect of the decision was that there was a period of a month (between 21 February and 22 March 2022) when the Claimant believed that he would have to wait a further four or five months before he could even be considered for progression. In our judgment, that was something about which the Claimant had a justified sense of grievance; there was a detriment.

[386]We therefore concluded that the imposition of the 1 July 2022 bar on consideration for CU was a further act of victimisation. The claim succeeds against the First Respondent. Issue 2(viii)/6(i) (victimisation): Ross Dickie and Diarmuid Rogers not appointing the Claimant to the SFI role.

[387]In relation to the allegation of victimisation arising from the failure to appoint the Claimant to the SFI role, we considered the Claimant’s submission that the proximity between his grievance appeal and the interview decision, together with Mr Rogers’ seniority and displeasure (which we have found amounted to victimisation), is sufficient to shift the burden of proof. However, there is no evidence that Mr Rogers had any involvement in, or influence over, the decision not to appoint the Claimant to the SFI role. The uncontested evidence, which we accept, is that the decision was Mr Dickie’s alone. Consequently, the allegation of victimisation against Mr Rogers must fail.

[388]Nor was there any evidence that Mr Dickie knew that the Claimant had carried out a protected act or believed that he might do so. In those circumstances, his decision cannot have been an act of victimisation.

[389]Even if the burden of proof were to shift, we are satisfied that the Claimant was not appointed because he performed poorly at interview in the respects identified by Mr Dickie. The Claimant accepted that he applied shortly before the interview, regarded the role as a fallback, and considered himself overqualified; we think it likely that he was overconfident and underprepared; that is a non-discriminatory explanation for the outcome. For the avoidance of doubt, it does not follow (as the Claimant maintains it should) from the fact that he may have scored highly in those categories on other occasions that only a high score would have been plausible on this occasion.

[390]The claim is not well-founded and is dismissed. Issue 6(ii) (victimisation): Steve McGrath requiring the Claimant to undertake a fresh CU assessment flight

[391]We have concluded that the requirement for the Claimant to undertake a further CU assessment flight arose solely because his previous assessment flight had taken place more than eight months earlier and was no longer valid (para 136).

[392]There is no evidence from which the Tribunal could reasonably conclude that these matters were influenced by any protected act; this allegation of victimisation is not made out. Issue 6(iv) (victimisation): Robin Tormey allocating the Claimant to a Manchester base

[393]We accept the Respondent’s explanation for the allocation of the Claimant to a Manchester base. Base allocation depended on availability at the time; Stansted was unavailable at the relevant point while direct entry roles were being filled (para 147). The Claimant was offered a range of alternative bases; he was allocated Manchester because that is the base he chose; it was common for pilots to accept a base other than their preferred choice in order to secure promotion.

[394]We are satisfied that was the sole reason for his allocation; the victimisation claim does not succeed. Issue 6(iii) (victimisation): Ryanair Legal seeking to impose a precondition denying the existence of prior claims and resisting efforts to vary that term until escalation by the Claimant’s solicitor, thereby causing a delay in CU training

[395]Mr Milford relies on Khan and Aziz in submitting that that(i) the test of causation in s.27 EqA is one of subjective motivation; and

(ii) that the Claimant must show the fact that his acts were done under or by reference to the EqA must have motivated Ryanair to act in the way alleged.

[396]As to the inclusion in the CU training agreement of the clause, requiring the Claimant to confirm he had no active legal claims against Ryanair (para 152 onwards, above), Mr Milford submits that this was a standard term in Ryanair’s training agreements. The evidence of Mr Ryan and Mr Rogers was that the clause was routinely included in all such agreements and had been introduced to identify potential claims at the outset. Therefore, the ‘reason why’ the clause was included in the contract sent to the Claimant had nothing to do with the fact that the Claimant had brought any claim, let alone a claim under the EqA; it was simply because it was included as a matter of course in all agreements of that type.

[397]As to the refusal initially to vary the clause, Mr Milford submits that this was also unconnected to any protected act. The evidence was that the company ordinarily insisted on agreements being signed in unamended form because they were relied upon, in particular, for the recovery of training costs, and variation was generally resisted as a matter of policy. The initial refusal was therefore a standard, ‘boilerplate’ response which would have been applied in any case.

[398]Further, Mr Milford submits that the period complained of was short, approximately three weeks between 14 July and 5 August 2022, at which point the clause was removed. During that time, there is no evidence that Ryanair’s position was motivated by the Claimant’s claim, nor that it would have acted more quickly absent a discrimination claim. Ryanair acted reasonably in taking time to consider the position and to obtain advice, following which it did in fact amend the agreement to carve out the Claimant’s claim.

[399]Accordingly, the Respondent submits that neither the inclusion of the clause nor the initial refusal to amend it was an act of victimisation.

[400]We were not persuaded by these submissions.

[401]The test of causation in direct discrimination and victimisation is the same ‘because of’ test: see Bailey (above at para 302).

[402]In the context of direct discrimination, it is well established that there are two types of claim: ‘criterion’ based cases, where the conduct is inherently discriminatory (for example, a sign saying ‘free entry for women at 60 and men at 65’, as in the Eastleigh case, above at para 288) and cases where it is not; in the latter type of claim, the subjective motivation of an individual discriminator is determinative; in ‘criterion’ cases it is not: see Ahmed at para 289. For recent confirmation of this see the Court of Appeal’s judgment in Omooba v Michael Garrett Associates Limited and another at [38(b)]: ‘Except in “criterion” cases (where the position should be obvious from the criterion used to discriminate), a subjective enquiry is required, usually involving inference rather than direct evidence.’

[403]Where a contractual term operates by its very nature to the detriment of those who have brought EqA claims, the necessary causal link is established, irrespective of the mental processes of the individual who has included that contractual term in a template document, or of the individual who adopts that template in a particular case. By way of example, if a company has an express policy of not employing people who have brought a discrimination claim in the Employment Tribunal, it cannot escape liability for the acts of the manager who applies that policy and rejects a candidate, by arguing that s/he was merely (and innocently) following an established policy.

[404]We accept that this was a standard term included in all Ryanair’s training agreements. However, we do not accept that it functioned simply to flush out the existence of claims: rather, it required confirmation that no claims existed, as a precondition of access to CU training and, thereby, promotion. Any doubt as to that was dispelled when the Claimant crossed out the clause and his progress was again stalled.

[405]The inclusion of the clause necessarily placed any pilot with a legal claim against Ryanair at a disadvantage; it erected a barrier to their promotion and/or had the potential to deter them from continuing in their claims. It does not matter that the clause did not refer explicitly to EqA claims because they were necessarily caught by it. By analogy with the example given by Underhill P in Ahmed, the clause could entirely accurately be stated as: ‘pilots will not be promoted if they have legal claims against Ryanair, including claims under the Equality Act 2010.’

[406]The Claimant had live discrimination claims. Even if Ryanair had not known that, requiring him to accept the clause (which he could only honestly do by withdrawing the claims) was inherently an act of victimisation. As it happened, the Respondent did know that he had live discrimination claims in the Employment Tribunal, which made the refusal to remove the clause from his agreement the more egregious.

[407]Mr Rogers’ explanation for Ryanair’s reluctance to remove the ‘legal claims’ clause made no sense at all: removing it would have no effect on Ryanair’s ability to enforce a quite separate clause about recouping training costs, as was shown when it was later removed, without prejudicing Ryanair’s position as to that.

[408]The inclusion of the clause - and the refusal to remove it - subjected the Claimant to a detriment: the effect was further to delay his progression, causing him to miss the August CU course and defer to September; even if that had not been the case, he had a justified sense of grievance that his employer was effectively requiring him to withdraw his Tribunal case, if he still wished to be promoted.

[409]The Claimant was subjected to these detriments because he had done a protected act by claiming discrimination under the EqA in the Employment Tribunal.

[410]The victimisation claim succeeds against the First Respondent.

[411]We can think of no credible justification for the inclusion of a clause of this sort in a modern employment contract; certainly, none was advanced in this case. In our view, it represented a misuse by Ryanair of its bargaining power. We were told that Ryanair continues to include the clause in its standard agreements, notwithstanding its removal in the present case (we infer, on advice). We can only conclude that it is willing to run the risk of victimisation claims such as this, to retain the clause’s chilling effect. Issue 6(v) (victimisation): Steve McGrath increasing the complexity and difficulty of the Claimant’s assessment and training flights to increase his chances of failing the CU course

[412]We have found as a fact that there was nothing improper or untoward in Mr McGrath’s conduct during this flight (para 138 onwards). There was certainly no evidence of his seeking to sabotage the Claimant’s chances of failing the CU course.

[413]This claim fails on its facts and is dismissed. Issue 6(vi) (victimisation): Examiner Jan Michno grading the Claimant with low grades on the simulator flight despite him performing to his usual high standard

[414]It is clear that the Claimant and his simulator partner did not get on during the simulator assessment. The contemporaneous evidence shows that Mr Michno identified weaknesses in both of them. He did not single the Claimant out. His partner described Mr Michno as strict but fair.

[415]Mr Michno did not know either of them. Nor is there any evidence that he knew about any of the Claimant’s protected acts, and the Claimant accepted as much. The suggestion that Mr Michno may have been influenced in his behaviour and his assessment by others who did was entirely speculative and unsupported by any evidence. For that reason alone, the victimisation claim must fail.

[416]We are satisfied that the feedback provided reflected Mr Michno’s genuine assessment of the performance he observed. By contrast, the Claimant’s response to the assessment was to attribute fault to others, including both his simulator partner and the examiner, while declining to engage substantively with the criticisms made of his own performance. Issue 6(vii) (victimisation): Ross Dickie seeking to impose additional training and delaying the Claimant’s Command Upgrade

[417]We have concluded that the sole reason why Mr Dicke arranged additional training for the Claimant was because Mr Michno had identified weaknesses in the Claimant’s simulator performance, for which he recommended additional training. Mr Dickie accepted the recommendation. We accept Mr Dickie’s evidence that the sole purpose of the additional training was to maximise the Claimant’s prospects of success in line training. The Claimant was supported with tailored training, which he accepted and completed satisfactorily on 10 October 2022. The resulting delay (three days) was minimal. In our judgement, a reasonable employee would have regarded this as advantageous, not detrimental. There was no detriment and no causal link to any protected act.

[418]The complaint of victimisation fails. Issue 6(viii) (victimisation): Diarmuid Rogers and Ryanair(1) transferring the Claimant to Manchester in December 2022 and requiring him to transfer to Ryanair UK Limited and

(2) resisting and/or obstructing a transfer to Stansted until 1 April 2023.

[419]Issue 6(viii) was clarified, by agreement, to the form set out above on Day 13 of the hearing.

[420]The reason why the Claimant was transferred to Manchester in December 2022 was because he selected that base as his preferred option from the options which were available at that point, fully aware that, unlike the other available bases, it required a change of employer from Ryanair DAC to Ryanair UK. It was a result of the Respondent’s operational arrangements and the Claimant’s own choice; there was no evidence that the Claimant’s protected acts played any part in the decision.

[421]The Claimant’s request for an immediate transfer to Stansted was not accepted because it fell to be determined in accordance with the BALPA agreement and the Respondent’s established processes. The responses given to the Claimant reflected those arrangements and were consistent with usual practice. When a suitable opportunity arose, namely the creation of Ryanair UK captain roles at Stansted for which there was no waiting list, the Claimant transferred within a relatively short period.

[422]In the circumstances, we are satisfied that Ryanair’s conduct was entirely explained by legitimate operational and contractual considerations, and that there was no link between the Claimant’s protected acts and either his allocation to Manchester or the failure to transfer him earlier back to Stansted.

[423]The complaint of victimisation fails. Issue 6(ix) (victimisation): Ryanair cancelling and/or failing to reschedule the Wings Ceremony

[424]The Claimant led no evidence about this allegation. He was not singled out; it was a decision wholly unconnected to any protected act by him.

[425]The victimisation claim is baseless. Issue 6(xi) (victimisation): Steve McGrath and Jonathan Moss of Safety Office targeting the Claimant for formal review and/or review under the Respondent’s Operating Flight Data Monitoring (OFDM) system.

[426]The Claimant withdrew this allegation in relation to the Podgorica flight; it proceeds only in relation to the Tangiers flight.

[427]Mr McGrath had no input into the decision that there should be a Formal Review; he was merely instructed to carry it out. The claim against him fails.

[428]The evidence demonstrated that the identification of events for scrutiny came about through anonymised ASR review and externally generated OFDM alerts. The anonymisation process was a substantial safeguard, and there was no evidence that it was bypassed in the Claimant’s case. The Claimant accepted in oral evidence that it was the analysis of the data which led the safety team to conclude that a formal review was required.

[429]Finally, there is no evidence that Mr Moss knew about any of the Claimant’s protected acts, let alone was influenced by them.

[430]The Claimant has not established facts from which the Tribunal could reasonably conclude that the application of OFDM or the initiation of Formal Reviews was because of any protected act. In any event, the Respondent had a cogent and credible explanation for the decision to initiate a review: based on the data, there were significant safety concerns in relation to the Tangiers flight.

[431]The allegation of victimisation does not succeed. Issue 6(x) (victimisation): Declan Ryan, Jason Whiteside and Diarmuid Rogers issuing the Claimant with a final written warning in January 2024 and/or failing to overturn the final written warning on appeal

[432]This relates to the final warning for lateness on 28 November 2023.

[433]The allegation fails as against Mr Ryan because he was not involved in issuing the warning or dismissing the appeal.

[434]We are satisfied that Mr Whiteside issued the final written warning because the Claimant failed to report for duty on time, causing unnecessary delay to passengers; he then provided inconsistent and untruthful explanations for that failure. In those circumstances, Mr Whiteside was entitled to conclude that there had been both an operational failure and a breach of trust. There was no evidence that the disciplinary action was because of any protected act.

[435]The sole reason why Mr Rogers dismissed the appeal was because he agreed with Mr Whiteside’s conclusions. He reviewed the material, considered the Claimant’s explanations, and found nothing to undermine the original findings. He shared Mr Whiteside’s concerns about the Claimant’s inconsistent accounts. His decision to uphold the final written had nothing to do with the Claimant’s protected acts

[436]This claim of victimisation does not succeed. Issue 6(xii) (victimisation): Steve McGrath and Jonathan Moss of Safety Office instigating a disciplinary process in relation to the Claimant’s alleged under-reporting of flight safety events

[437]Neither Mr McGrath nor Mr Moss instigated the disciplinary process; that was a decision of the Chief Pilot, Mr McKeon. No claim is made against him.

[438]The claim of victimisation is dismissed. Issue 6(xiii) (victimisation): Craig Hope and Shane McKeon failing to afford the Claimant a fair disciplinary procedure including a conscientious and fair-minded investigation Issue 6(xiv) (victimisation): Shane McKeon and Declan Ryan dismissing the Claimant and/or [Mr Elbert] refusing to overturn the decision to dismiss the Claimant on internal appeal?

[439]In relation to Issues 6(xiii) and 6(xiv), we have considered together the Claimant’s claims that the Respondent subjected him to detriments, by way of the disciplinary process, dismissal, and appeal, because he had done protected acts.

[440]We begin by recognising the seriousness of the matters which gave rise to the disciplinary process. The Respondent was faced with what it understood to be a Captain who, on two separate occasions within a relatively short period, appeared to have omitted important safety information from his ASRs. In a safety-critical industry, that was, on its face, a matter capable of justifying formal disciplinary action.

[441]There were plainly substantial procedural shortcomings at each stage of the process (see below at para 449 onwards). Notwithstanding this, having considered the contemporaneous notes and the covert recordings, we conclude that each of the relevant decision-makers acted in good faith: they tried to give the Claimant an opportunity to explain his conduct. However, viewed objectively, the procedural safeguards which ought to have been in place in a case of this gravity were not observed. For the reasons set out below, we have concluded that the dismissal was procedurally unfair.

[442]That is not determinative of the victimisation claims. The authorities make clear that unreasonableness and unfairness are not, in themselves, sufficient to establish discrimination or victimisation (Glasgow City Council v Zafar

[1998] ICR 12

[443]We are satisfied, on the evidence, that Ryanair’s explanation for initiating the disciplinary process and for dismissing the Claimant was consistent throughout: it believed that the Claimant had materially underreported serious safety events and that this raised fundamental issues of trust. This was not a situation in which Ryanair’s case evolved in a manner which pointed towards a concealed retaliatory motive; rather, the core concern about underreporting was present from the point at which the Formal Reviews were considered and remained the basis of its decision-making thereafter.

[444]We have considered whether there are facts from which we could properly conclude that the protected acts had a significant influence on the conduct of the investigation, the disciplinary process, the decision to dismiss, or the rejection of the appeal. We find that there are not. The last protected act relied upon was the presentation of the ET1 in May 2022, nearly two years before the investigatory meeting in March 2024. While the mere passage of time is not determinative, in the absence of any other supporting evidence it materially weakens any inference of causal connection.

[445]We also consider it inherently improbable that the relevant decision-makers - none of whom included Mr Rogers, in respect of whom we have found acts of victimisation at an earlier stage - would deliberately (or negligently) allow procedural errors of the kind identified to occur because the Claimant had done protected acts. Those procedural deficiencies are more plausibly explained by administrative shortcomings and the absence of detailed guidance in the Respondent’s own disciplinary policy (which is rudimentary), rather than by any retaliatory motivation. In short, we consider them to be the product of incompetence or inadequate process, not victimisation.

[446]We therefore conclude that the Claimant has not established facts from which the Tribunal could properly conclude, in the absence of an adequate explanation, that he was subjected to the relevant detriments by Mr Hope, Mr McKeon, Mr Ryan or Mr Elbert because he had done protected acts. The burden of proof does not shift to the Respondent.

[447]Even if it had shifted, in relation to the decision to dismiss/reject the appeal, we would have accepted the Respondent’s explanation. We find that the sole reason why the Respondent acted as it did was that it genuinely believed that he had committed serious misconduct by underreporting safety-critical events, and that, in consequence, he could no longer be trusted to comply with the fundamental obligation of honesty and transparency required of a Captain.

[448]Accordingly, these claims of victimisation fail and are dismissed. Conclusions: unfair dismissal

[449]We are satisfied that the sole reason for the dismissal was conduct: the Claimant’s under-reporting of safety issues in the two flights and his failure to accept responsibility for that under-reporting.

[450]We have no doubt that Mr McKeon and Mr Elbert believed in the guilt of the Claimant in both respects.

[451]We are satisfied that Mr McKeon and Mr Elbert had reasonable grounds for believing that the Claimant had underreported serious flight safety events on the Podgorica and Tangier flights. Those grounds are set out in detail in the dismissal letter and the dismissal appeal letter. Both flights contained numerous serious flight safety events that the Claimant should have, but did not, report in the relevant ASRs. His reporting of those flights was not consistent with his training or with the way in which he completed other ASRs. His failure to acknowledge the underreporting, and to accept responsibility for it, provided reasonable grounds for Mr McKeon and Mr Elbert concluding that the omissions were deliberate.

[452]Ryanair’s disciplinary policy explicitly lists ‘Breaches of safety regulations / company procedures’ as a disciplinary offence. The reporting obligations in OMA Chapter 11 are mandatory. A breach of those obligations is a breach of procedure.

[453]The list of gross misconduct offences includes ‘breach of trust (includes making false or deliberately misleading statements).’ An ASR which deliberately omits important safety issues is misleading; whether it is deliberate is a matter of fact. Reference is also made to ‘breach of safety or security’ (the ASR is a key element of Ryanair’s safety regime) and ‘careless or negligent action that could endanger one’s own safety or the safety of others’ (failing to report safety issues undermines the safety regime itself).

[454]Ryanair’s Just Culture is one in which pilots are not punished for actions, omissions or decisions that are ‘commensurate with their experience and training’. Failing to report safety incidents is not commensurate with the experience and training of a Captain who has successfully completed the CU process. Further, a Just Culture can only operate safely if pilots are open and honest about errors they make and report them in full. We know that the Claimant knew this because that is essentially what he advised his First Officer after the Podgorica flight (para 207).

[455]We go on to consider the question of procedural fairness at each stage of the disciplinary process. The investigatory stage

[456]The letter inviting the Claimant to the meeting made no reference to underreporting; the Claimant was evidently confused at the start of the meeting as to what its purpose was; the reference to ‘overall performance’ was vague and uninformative; the Formal Reviews were not provided, although they were read out at the meeting.

[457]Not telling an employee the subject of an investigatory meeting in detail is not in itself unfair: it is not uncommon for an employer to seek to elicit a spontaneous response at an initial investigatory meeting. The Claimant was told that the meeting would be about the two Formal Reviews. Telling the Claimant that the meeting would be about his ‘overall performance over the past 12 months’ when it was not, was positively misleading.

[458]The meeting itself proceeded on the basis that underreporting had occurred, rather than as a genuine inquiry into whether that was so and, if so, in what respects. Mr Hope and Mr Whiteside had evidently reached a concluded view, notwithstanding later attempts to re-frame this as establishing a ‘case to answer’.

[459]No investigation report was produced. Instead, conclusions were reached informally and communicated verbally without even a basic written summary of the evidence, the applicable standards, and the alleged breaches. Mr Hope in his witness statement (para 14 onwards) set out what the specific issues were in each flight, what policies applied to the reporting of those issues and how the Claimant had failed to comply with them. A reasonable employer would have set that analysis out in an investigation report and disclosed it to the Claimant; it should then have formed the basis of the disciplinary charges. The disciplinary stage

[460]The two letters inviting the Claimant to the disciplinary hearing were wholly inadequate, assessed against basic principles of procedural fairness.

[461]The first letter did not identify the specific disciplinary charges. That was particularly necessary in this case, given that there were multiple alleged failures of reporting in both flights and the issues were highly technical.

[462]The letter did not state that the Claimant was charged with gross misconduct, nor warn of the possibility of dismissal.

[463]No evidence was attached to the letter. The Claimant had access to the ASRs and the OFDM analysis, but he had still not been sent the Formal Reviews; these were not provided until after he had been dismissed.

[464]As for the second letter, it still failed to set out the disciplinary charges with any clarity. It refers in general terms to ‘the manner in which you reported two recent events’ and asserts that ‘in both cases, they were under reported’, but it does not identify what aspects were under-reported, or what the alleged misconduct consists of in concrete terms: what was said in the ASRs, what was omitted, and why those omissions are said to be culpable. Given that the allegation depends on detailed technical comparisons between his narrative account and flight data, the absence of particulars is especially problematic; this is a matter of substance, not just of form. The Claimant was not in a position to understand (and prepare for) the precise case he had to meet.

[465]The letter does not attach (or even identify) the evidence relied on. There is no reference to the underlying ASRs, OFDM reports, Formal Reviews, or any witness evidence. The inclusion of the ‘file notes from the investigative meeting’ is plainly insufficient, especially in the absence of an investigatory report. The employee is entitled to know the full evidential basis of the allegations so as to prepare a meaningful response.

[466]The letter does not present the issue as an allegation to be determined; it asserts as a fact that ‘in both cases, they were under reported’ and that the issue is ‘very serious’. That suggests that a conclusion has already been reached before the disciplinary hearing has taken place.

[467]There is a total lack of clarity as to the nature of the alleged misconduct in disciplinary terms: there is no identification of the specific category (for example, misconduct or capability). There is a generalised reference to the importance of honesty, but it is not stated in terms that the Claimant was charged with dishonesty and, if so, in respect of what.

[468]After the disciplinary hearing, the Claimant sought some clarity as to the precise charges (para X); Mr McKeon responded with information which a reasonable employer would have provided before the hearing. The dismissal

[469]The case advanced at the disciplinary stage concerned underreporting of specific flight safety events. The matters for which the Claimant was dismissed went far beyond that, including as they did dishonesty, breach of trust and gross negligence.

[470]Those were serious findings which carried significant weight in the decision to dismiss, yet they had never been clearly identified as disciplinary charges. A reasonable employer would have articulated those matters explicitly, given their gravity, and afforded the Claimant a fair opportunity to respond to them.

[471]The Tribunal also finds that aspects of Mr McKeon’s reasoning, such as reliance on the Claimant’s attitude during the process and his failure to show insight or contrition, were treated not merely as aggravating factors (which might have been appropriate) but as freestanding reasons for dismissal.

[472]In those circumstances, the Claimant was dismissed, at least in part, for matters which had not been fairly put to him. That procedural defect is a very significant one: it deprived the Claimant of a proper opportunity to understand and answer the case against him; charges of dishonesty and breach of trust are of the utmost seriousness. We reject Mr Milford’s submission that these were not new charges but merely ‘new ways of characterising the same issues’. The appeal stage

[473]The Claimant argues that Ms Reynolds of HR ought not to have been on the appeal panel because she had had some involvement at an earlier stage: she had received two emails about the Formal Reviews. We agree with Mr Milford that that was nothing improper in her being involved at the appeal stage; there was nothing in those emails which gave rise to bias (or the appearance of bias).

[474]The Respondent contends that any defects in the earlier stages were cured by the appeal which Mr Milford characterises as ‘effectively a de novo hearing at which the Claimant had the chance to raise any issue he wanted’; Mr Milford argues that, although the Claimant had not had the detailed charges before the disciplinary hearing, he knew the issue was underreporting; that it was considered a serious issue; he had the ASRs and OFDM data and the Formal reviews had been read out to him; by the time of the appeal the Claimant had copies of the Formal Reviews; he also had the notes of the investigatory meeting.

[475]Moreover, Mr Milford argues: ‘C knew at the appeal hearing exactly what the company considered to be the most important issues of underreporting, because they were set out fully in the disciplinary letter. He had (and accepted he had) a full opportunity to address each one.’

[476]We do not accept that submission. We remind ourselves that Tribunals are discouraged from making too much of the distinction between a review and a re-hearing; it is substance, not form, which matters. Nonetheless, since it is raised by the Respondent, we find that it was certainly not a de novo hearing: it cannot have been a fresh hearing in circumstances where the disciplinary charges still had not been clearly set out before the hearing. Further, Mr Elbert told the Tribunal that he was not even aware when he conducted the hearing that the disciplinary charges had not been set out in any detail before the disciplinary hearing.

[477]The dismissal letter could not properly stand as the charge sheet. By way of example, dismissal was in part on the grounds of gross negligence; the dismissal letter did not identify the gross negligence in question; Mr Elbert, who heard the appeal, could not tell the Tribunal what the gross negligence in the dismissal letter consisted of.

[478]In any event, we consider that an employer does not act reasonably if he dismisses an employee, in part at least, for matters with which he has not expressly charged him - and then expects him to defend those additional charges at an appeal hearing. That is not the purpose of an appeal.

[479]Further interviews were conducted after the appeal hearing but the fact and content of them were not disclosed to the Claimant before he was dismissed; he had no opportunity to comment on them. He was still not provided with copies of the Formal Reviews.

[480]We have set out above what the Tribunal considers to be material failures in the procedure adopted. They may summarised as follows: 480.1. giving a misleading indication of the purpose of the investigatory meeting; 480.2. failing to produce an investigation report (or any written record) setting out the basis of the decision to proceed to a disciplinary hearing; 480.3. failing to set out the disciplinary charges before the disciplinary hearing with sufficient clarity; 480.4. failing to provide all relevant documents for both the disciplinary and appeal hearings; 480.5. the hearings proceeded on the premise that there had been underreporting, the issue having been predetermined; 480.6. the Claimant was dismissed for disciplinary offences with which he had not been expressly charged: dishonesty, breach of trust and gross negligence; 480.7. the charges still had not been properly formulated before the appeal hearing took place; for example, the nature of the gross negligence was never identified; 480.8. the Claimant was not told about the fact and content of Mr Elbert’s interviews after the appeal hearing.

[481]Having regard to the disciplinary process as a whole, we have concluded that, by the objective standards of the hypothetical reasonable employer, the decision to dismiss the Claimant did not fall within the band of reasonable responses which a reasonable employer might have adopted in response to the misconduct. The authorities are clear that, if the investigation is defective, it is no answer (at the liability stage) to say that it may have made no difference to the outcome.

[482]Accordingly, the dismissal was procedurally unfair. Conclusions: Polkey

[483]We then turn to the question of whether there was a chance that, had the Respondent adopted a fair procedure, it could fairly have dismissed the Claimant and, if so, whether it would have done so.

[484]The Tribunal has now heard the Claimant’s detailed response to the central disciplinary allegations of deliberate under reporting and breach of trust. He has had a full opportunity to advance his case, test the Respondent’s evidence in cross examination, and explain the discrepancies between the events that occurred and what he recorded in his ASRs. Having considered that evidence, we are satisfied that, had the charges been properly formulated and fairly put, the Respondent could have fairly dismissed for conduct and/or some other substantial reason.

[485]Candid reporting is fundamental to Ryanair’s safety culture and regulatory obligations; a failure in that regard, particularly by a Captain, goes directly to the question of trust. The material before the decision-makers in this case was capable of supporting a number of conclusions: that there were two separate instances of materially deficient reporting within a relatively short period; that the omitted matters concerned significant safety-critical events; that the Claimant failed to comply with clear and well-understood reporting obligations contained in the Operations Manual; that his explanations for the omissions were inadequate and, in some instances, untruthful; that his failures were deliberate; and that he failed to take responsibility for his actions, consistently seeking to blame others.

[486]Taken together, Ryanair could reasonably have concluded that those matters constituted misconduct (making deliberately misleading statements: see para 453 above) and/or fundamentally undermined the Respondent’s ability to trust the Claimant (some other substantial reason) and it could fairly have dismissed the Claimant for either or both reasons. The existence of a live final written warning could also have been relied upon.

[487]We then considered the separate question of whether the Respondent would in fact have dismissed the Claimant following a fair process. We recognise that, in principle, there were circumstances in which a lesser sanction might have been imposed: had the Claimant accepted responsibility for his actions, demonstrated insight, and shown genuine remorse, we consider that the Respondent might have taken a different approach (as Mr Declan Ryan had done in January 2021).

[488]It follows that we must go on to assess the likelihood that the Claimant would have conducted himself in that way; we consider it to be nil. On the evidence before us, including his approach to the earlier disciplinary matter resulting in the final written warning (see para 223 onwards) and his approach at the hearing before the Tribunal, the Claimant’s consistent stance (with the exception of the 2021 incident) has been to deny responsibility and, where possible, to seek to blame others. He has not at any stage, including in these proceedings, demonstrated the level of insight or acceptance which might have mitigated the seriousness of the misconduct. At one memorable point in the Claimant’s crossexamination of Mr Hope, Mr Hope pointed out that the Claimant did not report the Class 2 RAAS alert (which the Operations Manual states must be reported) for being too high at 888 ft, in response to which the Claimant retorted (in a tone of exasperation): ‘so this is about reporting every blessed thing?’ In our view, that showed a shocking lack of insight.

[489]In those circumstances, we find that the Claimant would have maintained the same positions even in a fair process. Given the seriousness of the matters relied on by the Respondent, and in the absence of any meaningful mitigation, we conclude that there was a 100% chance that the Respondent would have dismissed the Claimant on conclusion of a fair disciplinary process. We consider that a fair process could have been conducted within the same timescale as the actual process, which took place between 21 March and 8 May 2024, a period of just over seven weeks.

[490]It follows that any compensatory award is extinguished on a Polkey basis. Findings and conclusions: contribution and the principle in Devis v Atkins

[491]We then considered whether the Claimant contributed to his dismissal by his own blameworthy conduct. We had regard to the following matters.

[492]On 28 November 2023, the Claimant did not set his alarm and failed to report for duty, causing unnecessary delay to two flights. Instead of acknowledging his error and accepting responsibility, the Claimant made elaborate and implausible excuses for his conduct, which he maintained up to the hearing before us (para 223 onwards). We find that the outcome of the disciplinary process was wholly attributable to the Claimant’s own conduct. Had he maintained his original straightforward explanation to Crew Control, and accepted responsibility at an early stage, a lesser sanction may have been imposed. Instead, the incident contributed to Ryanair’s ultimate lack of trust in the Claimant’s honesty.

[493]In relation to the Podgorica flight on 13 November 2023, the Claimant made no reference in his ASR to important safety issues which had occurred, including the fact that, having taken over the controls from the Frist Officer, the Claimant flew at the wrong bearing for 2.5 nm, toward high ground; that there was an altitude bust; that both pilots were startled; and that (according to him) his First Officer ‘froze’.

[494]The Claimant did not accept responsibility for his own part in the events of the Podgroca flight. Rather, he sought to blame the events entirely on his First Officer, seeking first to persuade FO/P voluntarily accept the blame (paras 207- 207), then seeking to implicate him to Mr McGrath, accusing him of insubordination (para 208 onwards); there was no mention of insubordination in the ASRs which (if true) there ought to have been.

[495]We record that, in his oral evidence before us, the Claimant denied ever having said that FO/P was insubordinate; he said that ‘both of us froze’ but he ‘never knew’ that he should report this, notwithstanding the fact that it was something which had an obvious and serious impact on the safety of the aircraft. The Tribunal found that completely implausible.

[496]The Claimant told Mr McGrath in his email of 28 February 2024 and Mr McKeon at the disciplinary hearing that he was under radar vectors; that was untrue (above at para 261; see the disciplinary outcome letter at 271).

[497]His explanation before us for the under-reporting was that ‘I can only write what I can remember’. We think it implausible that the Claimant would not remember the altitude bust and the loss of situational awareness, if nothing else. He also blamed the fact that he was ‘not experienced at writing reports’, which we do not accept: he had been trained in report writing; he had been a Captain for 11 months and we saw numerous, detailed reports produced by him before the Podgorica and Tangier ASRs (para 192).

[498]As for the Tangier flight, among other things the Claimant did not mention the Class 2 RAAS alert (which the Operations Manual states must be reported) for being too high at 888 ft, even though that was a loud call-out which he accepted he heard in the cockpit. His explanation was that he had received the disciplinary letter the night before ‘and my whole state of mind was severely affected’. We find that explanation implausible. He also did not mention the fact that the go-around was initiated after the landing gate and at only 378 ft above the ground. He accepted in oral evidence that even the passengers would have been aware of that.

[499]We find that by omitting serious safety issues from his ASRs the Claimant was providing misleading information. Further, we find that he did so deliberately. A recurrent theme of the Claimant’s evidence was that he had no motive to underreport because Ryanair had a no-blame policy for go-arounds. That is to ignore the key fact that the Claimant was not dismissed for doing a go-around (for which there was a no-blame policy); he was dismissed for deliberately providing misleading ASRs, which omitted serious safety issues (for which there was not). Insofar as a motive is required, we have concluded that he simply wished to avoid being blamed for his own failings. The failure to provide a full and frank account of the flights was a serious breach of trust in a safety-critical industry.

[500]That conduct was blameworthy. It caused the Claimant’s dismissal.

[501]Given our finding that there was a 100% chance that the Claimant would have been dismissed in any event, there is no compensatory award remaining; only the basic award.

[502]The Tribunal has considered whether there is any impermissible overlap between the findings on contributory conduct and the Polkey reduction. We recognise that they both arise from the same underlying conduct. However, as confirmed in Granchester (see above at para 334), the principle of moderating a contribution deduction to avoid overlap with Polkey does not apply to the basic award. In those circumstances, the Tribunal is satisfied that it is just and equitable to make a reduction for contribution in respect of these matters.

[503]We went on to consider, pursuant to s.122(2) ERA 1996, whether it would also be just and equitable to reduce the basic award to reflect the Claimant’s covert recording of meetings. There was an express prohibition on such conduct in the Claimant’s contract (para 93); he disregarded express warnings at the beginning of meetings not to record (para 252); he had no good excuse for doing so (para 95).

[504]In our judgment, this was a further serious breach of trust, amounting to gross misconduct. We are satisfied that it is just and equitable to make a further reduction to the basic award on this basis.

[505]Taking into account the very extensive procedural unfairness, for which Ryanair was entirely responsible, we considered that it would not be just and equitable to extinguish the basic award altogether. However, having regard to the seriousness of the misconduct of which the Respondent was aware, and the additional misconduct of which it was not aware at the time, we assess the appropriate reduction to the basic award at 75%. Conclusions: wrongful dismissal

[506]For the purposes of the wrongful dismissal claim, the Tribunal is concerned with whether the Claimant was in fact in fundamental breach of contract such as to justify summary dismissal. All the matters relied upon by the Respondent may properly be taken into account; issues of procedural fairness do not arise.

[507]Having regard to our findings above, we are satisfied that the Claimant’s conduct, singly and cumulatively, amounted to gross misconduct, having regard to the deliberate under-reporting of serious flight safety events, his failure to accept responsibility for that conduct and his covert recording of meetings in breach of an express contractual prohibition.

[508]Accordingly, the wrongful dismissal claim is dismissed.

Remedy

[509]Remedy is likely to be confined to the reduced basic award (with the potential for an ACAS uplift) and an award for injury to feelings in respect of the successful victimisation claims, plus interest on the latter award only. The parties are encouraged to seek to agree remedy, if possible. If they are unable to do so, they shall write to the Tribunal within 28 days of the date on which this judgment is sent to them, providing proposed directions (agreed if possible) for a one-day remedy hearing, together with their dates to avoid for the following six months.