Mrs J Trustram v EasyJet Airline Company Ltd: 3312511/2023 and 3313179/2023
EMPLOYMENT TRIBUNALS
Case No 3312511/2023, 3313179/2023
Between
Mrs J TrustramClaimantEasyJet Airline Company LtdRespondent
Before
Employment Judge Alliott
Members
Mrs G Bhatt MBEMr S WoodwardIn person for claimantMs Katya Hosking (instructed by counsel) for respondentDate 8 April 2025
JUDGMENT
[1]The judgment of the tribunal is that: 1. The claimant’s claims of unfair dismissal, wrongful dismissal, discrimination arising from disability and victimisation are dismissed. Approved by: Employment Judge Alliott 8 / 4 / 25[2]JUDGMENT SENT TO THE PARTIES ON 10 May 2025 FOR THE TRIBUNAL OFFICE Notes Reasons for the judgment having been given orally at the hearing, written reasons will not be provided unless a request was made by either party at the hearing or a written request is presented by either party within 14 days of the sending of this written record of the decision. If written reasons are provided they will be placed online. All judgments (apart from judgments under Rule 51) and any written reasons for the judgments are published, in full, online at https://www.gov.uk/employment-tribunaldecisions shortly after a copy has been sent to the claimants and respondents. If a Tribunal hearing has been recorded, you may request a transcript of the recording. Unless there are exceptional circumstances, you will have to pay for it. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings and accompanying Guidance, which can be found here: www.judiciary.uk/guidance-and-resources/employment-rules-and-legislationpractice- directions/[3]Case Number: 3312511/2023 3313179/2023 1 EMPLOYMENT TRIBUNALS Claimant: Mrs Janice Trustram Respondent: EasyJet Airline Company Limited Heard at: Watford Employment Tribunal On: 1,2,3 & 4 April 2025 Before:
REASONS
[1]The claimant was employed by the respondent on 23 February 2005, initially as a member of Cabin Crew. In January 2022 she moved to a Crewing Officer role at the respondent’s Luton Office. The claimant was summarily dismissed on 17 August 2023. The reason given by the respondent was gross misconduct. By two claim forms presented on 30 October 2023 and 14 November 2023 the claimant brings complaints of unfair dismissal, wrongful dismissal, discrimination arising from disability and victimisation. The respondent defends the claims.
The issues
[2]The issues were set out by Employment Judge Dick in a case summary following a preliminary hearing heard on 5 June 2024. They are as follows (excluding remedy as that is not relevant now):- “The issues the Tribunal will decide are set out below. Case Number: 3312511/2023 3313179/2023 2 1. Unfair dismissal1.1 Was the claimant dismissed? The parties agree that she was.1.2 What was the reason or principal reason for dismissal? The respondent says the reason was conduct. The Tribunal will need to decide whether the respondent genuinely believed the claimant had committed misconduct. The claimant suggests the reason(s) are as set out in paragraph 37 above. [Paragrah 37 sets out: “The claimant denies that she was responsible for the shift changes – she suggests it must have been someone using her account. She makes a number of criticisms of the investigation, the dismissal process, the outcome and the appeal. These are set out at some length in the agenda for the hearing which the claimant prepared. I have not reproduced them in the list of issues, though it will assist the Tribunal if the document (or a version of it) is put in the agreed file. The claimant says that the dismissal in fact had to do with a number of other things: the previous Employment Tribunal claim; the personal injury claim; that by the time of the investigation she was on long-term sick leave as a result of her disability; that she had asked to be redeployed as she was struggling with the work.”]1.3 If the reason was misconduct, did the respondent act reasonably or unreasonably in all the circumstances, including the respondent’s size and administrative resources, in treating that as a sufficient reason to dismiss the claimant? The Tribunal’s determination whether the dismissal was fair or unfair must be in accordance with equity and the substantial merits of the case. It will usually decide, in particular, whether:1.3.1 there were reasonable grounds for that belief;1.3.2 at the time the belief was formed the respondent had carried out a reasonable investigation;1.3.3 the respondent otherwise acted in a procedurally fair manner;1.3.4 dismissal was within the range of reasonable responses. The claimant has set out the particular reasons why she says the dismissal was unfair in the agenda for the preliminary hearing. …[3]Wrongful dismissal / Notice pay 3.1 Was the claimant guilty of gross misconduct? If so, the respondent was entitled not to pay her in lieu of notice. If not, the respondent will be Case Number: 3312511/2023 3313179/2023 3 liable for notice pay.[4]Discrimination arising from disability (Equality Act 2010 section 15)4.1 The parties agree that the claimant was disabled at the material time pursuant to s.6 of EqA as a result of her migraine condition.4.2 Did the respondent treat the claimant unfavourably by:4.2.1 Subjecting her to disciplinary proceedings.4.2.2 Dismissing her (including not allowing her appeal).4.3 Did the following things arise in consequence of the claimant’s disability: 4.3.1.1 Being off on long-term sick leave.4.4 Was the unfavourable treatment because of that?4.5 Was the treatment a proportionate means of achieving a legitimate aim? …4.6 The Tribunal will decide in particular:4.6.1 was the treatment an appropriate and reasonably necessary way to achieve those aims;4.6.2 could something less discriminatory have been done instead;4.6.3 how should the needs of the claimant and the respondent be balanced?4.7 The respondent accepts that it knew or could reasonably have been expected to know that the claimant had the disability at the material times.[5]Victimisation (Equality Act 2010 section 27)5.1 Did the claimant do a protected act as follows: 5.1.1 Present Employment Tribunal claim 3309868/2022?5.2 Did the respondent do the following things:5.2.1 Subjecting the claimant to disciplinary proceedings.5.2.2 Dismissing her (including not allowing her appeal).5.3 By doing so, did it subject the claimant to detriment?5.4 If so, was it because the claimant did a protected act?” The law Case Number: 3312511/2023 3313179/2023 4 3. Ms Hoskings helpfully provided us with a note on the law which we record we have taken into account. 4. Section 98 of the Employment Rights Act 1996 provides as follows:- “98 General. (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. … (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.” 5. As per British Homes Stores v Burchell it is for the employer to demonstrate that that had a genuine belief in the reason for dismissal and that that belief was based on reasonable grounds following a reasonable investigation.
The law
[6]Any decision to dismiss must fall within the band of reasonable responses of a reasonable employer. Disability discrimination[7]Section 15 of the Equality Act 2010 provides as follows:- “15 Discrimination arising from disability (1) A person (A) discriminates against a disabled person (B) if— (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.”[8]There needs to be a causal connection between the something arising and the Case Number: 3312511/2023 3313179/2023 5 unfavourable treatment. Victimisation[9]Section 27 of the Equality Act 2010 provides as follows:- “27 Victimisation (1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act…”
The evidence
[10]We were provided with a hearing bundle of 555 pages. The claimant provided a supplementary bundle of 38 pages, some of which duplicated documents already in the main bundle.[11]During the course of the hearing we were provided with some extra documents:(i) Larger versions of pages 547 and 554.(ii) A document setting out the claimant’s sickness absence record.(iii) A respondent’s note on the law.(iv) A complete version of page 547 (claimant’s supplementary bundle page 16A).(v) Emails referencing an investigation into Danny Cuipuliga and any changes he had made to Christopher Lee’s rostered flights.[12]We had written statements and heard evidence from:(i) The claimant (two statements)(ii) Mr Billy Manning, Network Duty Manager at the time, who dismissed the claimant (two statements).(iii) Ms Gill Baudot, Head of Operations Control kat the time, who heard the claimant’s appeal against dismissal (two statements).(iv) The claimant provided written closing submissions.
The facts
[13]The respondent is a well-known multinational airline headquartered at London Luton Airport.[14]The claimant was employed by the respondent on 23 February 2005 as Cabin Crew. In January 2022 she moved to a Crewing Officer role at Luton Integrated Case Number: 3312511/2023 3313179/2023 6 Control Centre.[15]As might be expected, the respondent has a disciplinary policy. This provides as follows:- “Gross misconduct The following are examples of gross misconduct which may result in your dismissal without notice or payment in lieu of notice. Please note that this list is not exhaustive and may include where you are an accessory to an act of gross misconduct by another person.• Theft; dishonesty; and defrauding or attempting to defraud EasyJet, its employees, customers or suppliers.• Committing an act inside or outside of work, or being convicted of a criminal offence, which is liable to seriously undermine the performance of your contract of employment, or which does or has the potential to bring EasyJet into serious disrepute.”[16]The respondent operates about 2,000 flights per day and consequently, with six cabin crew per flight, has to coordinate about 12,000 cabin crew for those flights.[17]A separate rostering department was responsible for rostering cabin crew for flights well in advance. We were not told how long in advance but clearly at least a month (as some of the changes recorded were done 30 days before).[18]The claimant’s Crewing Department role was to roster cabin crew within the “crewing window” which was three days before the flight (or could be stretched to five days if it was a weekend or with permission). In effect, the claimant’s role was to manage last minute changes to cabin crew for whatever reason in order to ensure that a flight had the correct compliment of cabin crew and so was not cancelled.[19]A crewing officer could also change the roster outside the “crewing window” for operational reasons and with managerial signoff.[20]Each shift was 12 hours long and there was 24 hour cover. 13 crewing officers would be on each shift.[21]The roster was managed on a system called “AIMS”. A crewing officer would have to log on to the respondent’s system using a username and password. The crewing officer would then have to log on to the “AIMS” system using a username and password. There was some dispute as to whether access to the “AIMS” system could be obtained remotely. The respondent’s position is that it could via a ”Citrix” gateway. The claimant asserted that it could not or only via a company laptop and that, in any event, she had never done so. As it turns out, the issue became irrelevant when it became clear following the claimant’s appeal against dismissal that every change to the roster had occurred when she was on shift and at work. Case Number: 3312511/2023 3313179/2023 7[22]The claimant worked part-time doing seven shifts a month. She did two days and then five days.[23]The claimant was disabled within the meaning of the Equality Act 2010 at all material times by reason of migraines. This is accepted by the respondent.[24]On 27 May 2022 the claimant notified Acas of a potential claim and the early conciliation certificate is dated 8 July 2022. She presented a claim to the employment tribunal on 28 July 2022. It is accepted that that was a protected act, and that the respondent would have become aware of the claim at that time.[25]The amount of flights and what flights cabin crew were rostered to work on directly impacted their pay. Some flights had higher pay than others.[26]The claimant began as a Crewing Officer in January 2022. She received “on the job” training with an experienced “Wingman” sitting with her. On 4 July 2022 she finished her training and was signed off as competent.[27]The claimant had non-disability related health issues in late 2022 and was off sick from 10 October until 28 December 2022 (but she worked on 8 November 2022).[28]The claimant’s line manager was Katy Gray. It was the claimant’s evidence that during 2022 Katy Gray was really supportive of the claimant and we have seen emails and welfare call notes that demonstrate this.[29]The claimant returned to work on 28 December 2022 on a night shift and her first day shift was on 5 January 2023.[30]On 5 January 2023 the claimant had a catch up meeting with Katy Gray. Katy Gray sent a follow up email which records that the claimant had concerns about the role. The following is recorded:- “We also discussed the role itself, you do have concerns that you will just never feel you get it… You’ve confirmed that you couldn’t have asked for any more support than you have had, and are thankful for it, I have asked you if there is anything else we can do and you don’t see that there is, you know it is something from within yourself. You did mention that if you can’t do the role what if you need to find another job. I confirmed that we could speak to HR to see what options there are for this. As you are signed off and probation passed in our eyes you are capable of the role. Also that possibly isn’t something to discuss now, lets get you back into the role and back on shift refamiliarising things and looking at where you have any gaps in knowledge so that we can support you. I can most certainly have a conversation with HR about that later down the line if we need to.”[31]On 5 January 2023 the claimant replied confirming the email as accurate, stating:- “I do confirm that this is accurate and a true reflection of where I am at. Case Number: 3312511/2023 3313179/2023 8 This is no reflection on the support I have been given by yourself and the department but I am struggling and although I keep being told that there is no issue with my work I do feel overwhelmed. I do think you are right and it’s a lot to do with the 50 % pattern and lack of consistency and lots of time off. I am struggling with the role but I am keen to move past this and gain confidence. I am not in a good place at the moment and I am worried about my future and I am grateful that you have offered so much support and guidance.”[32]On 6 January Katy Gray offered to refer the claimant for counselling.[33]By 9 January 2023 the claimant was reported to be in a better place and had enjoyed the last three shifts. Additional support was offered.[34]On 4 February 2023 the claimant emailed Katy Gray to say she was feeling much better, that she had started counselling, that she had applied for a parttime role in rostering and that she had been enjoying her shifts.[35]It is about this time that the claimant alleges that, in effect, management decided to get rid of her. She suggests that Katy Gray became frustrated with her as she kept needing support which took experienced staff away from doing their job and/or that her attitude changed when she became aware of her migraines. We reject that evidence. We find that it is contradicted by the contemporaneous documentation demonstrating concern and support for the claimant’s return to work in an office which was, apparently, short of staff. Further, we find that such an assertion is far-fetched and improbable.[36]On 18 April 2023 a cabin crew called Hannah Pilgrim sent an email complaint to Jaz McShane, a People Support Manager. It states:- “A while ago I kept losing flights and the same cabin manager kept replacing me. It happened mostly on extra long flights. Katy and Laura were looking into this for me but crewing came back saying it was “operational reasons” but there was no logical reason that it kept happening. Well I believe it happened again. Christopher Lee keeps ending up on my flights that I seem to lose for no reason, and I believe Janice Trustram is once again changing him. I will forward you the old email I had with Laura which has screenshots of when I was changed also and I’ll attach the new ones. It’s very upsetting as someone who has friends upstairs in rostering/crewing can bend their roster to what suits them, yet other people are losing out on sector pay and commission…”[37]Hannah Pilgrim attached screen shots showing she had been taken off a flight to Malaga, replaced by Christopher Lee and placed on early standby.[38]The claimant asserts that this email is suspicious and insinuates that Hannah Pilgrim may have been put up to making the complaint and had access to internal information.[39]As it happens, the roster change data only shows Hannah Pilgrim having one other change before 18 April 2023, on 30 August 2022. Case Number: 3312511/2023 3313179/2023 9[40]In a later investigation meeting, Hannah Pilgrim stated:- “Question: Do you know if JT and CL have a close relationship? HP: Yes they do which is why I raised the issue as having friends in crewing and being old school crew together was giving him an advantage over getting the longer more profitable sectors which is just not fair to the other crew. And CL went to JT’s wedding so they are pretty good friends I would say.”[41]It is clear to us that gossip amongst cabin crew about rostering was rife and we have seen references to “Galley FM.” We find that Hannah Pilgrim probably got wind of the fact that Christopher Lee had a contact in the crewing office who changed rostering to favour him and that it was the claimant. We find that the complaint was entirely genuine.[42]As it happens, the claimant told us that the information that Christoper Lee had attended her wedding was inaccurate. This further reinforces that the source was likely to be gossip.[43]The complaint was referred to Crewing Enquiries and on 20 April 2023 a reply was sent as follows:- “I have looked at the roster of Christopher Lee 18305 and found that Janice has made a large proportion on his roster changes, many of them so far in advance there is no reason that she should be making changes. In fact, it will be against procedure of monitoring days 1-3. Most of the changes involved Janice removing the crew member from a standby and placing them on flights. Based on the complaint from crew member it would appear that something is happening. I found only a very small number of changes to the roster of Chris Lee that were made by other crewing officers.”[44]The email response attached screenshots of changes made attributable to the claimant by virtue of her username and password having been used.[45]The last shift the claimant worked was a night shift 17/18 April 2023. On 29 April 2023, the claimant’s next scheduled shift, the claimant called in absent with vertigo and on 6 May 2023 she provided a Med 3 fit note signing her unfit for work due to migraines and vertigo. The claimant’s disability related sickness absence began from 29 April 2023, and she remained off sick until dismissal on 17 August 2023. Accordingly, that sickness absence was something arising in consequence of her disability.[46]Kelly Valentine, Network Operations Manager, was appointed to conduct an investigation. IT provided her with a “changes made report” which set out all the changes made to Christopher Lee’s roster by someone logged on with the claimant’s username and password between 18 April 2022 and 18 April 2023. This demonstrated that 85 changes had been made and that 57 of them were outside the five days “crewing window”. The data had a column setting out the Case Number: 3312511/2023 3313179/2023 10 date and time that the change had been made. This column turned out, as ascertained by Gill Baudot following the appeal hearing, to be inaccurate. In fact what was recorded was the time the change had been accepted by Christopher Lee. The dates were all correct and the times were generally within minutes or a few hours of when the change had actually been made.[47]Kelly Valentine interviewed Hannah Pilgrim, Christopher Lee and the claimant.[48]The claimant was invited to an investigation meeting on 31 May 2023. The following exchanges are recorded:- “KV: Can you tell me what your understanding of the implications of removing a crew member from a duty? JT: Yes, I have been crew before. People lose money on it – its not fair. It is done in a fair way unless there is a massive reason for changing people’s rosters. … KV: Do you know a cabin crew member by the name of Christopher Lee? JT: I know him, he was an ex-East Midlands base. I know what this is about. I can show the text messages. KV: Are you friends? JT: I wouldn’t say friends, we are more colleagues – known each other 18 years. He is not someone I speak to outside of work. This situation I think you are talking about, he was away on holiday. … KV: Have you ever made changes to Christopher’s roster outside of the network control window? JT: No, not that I can think of. KV: Since April 2022 we have evidence of 85 roster changes that you have made to Christopher’s roster of which 57 are outside of our window, can you tell me why you’ve made those changes? JT: I would know if I had done that. No, that is huge, I know that I have not done that. KV: You don’t remember? JT: I would know if I had done that. KV: Have you given your AIMS log in to anyone? JT: No, I am text savvy. This is not one or two. There is something going on that I can’t explain. My sister in law works for the company, you could look at her roster and see I have not made any changes. If I was ever going to do this, it would be for someone like her.” Case Number: 3312511/2023 3313179/2023 11[49]Christopher Lee was interviewed on 5 June 2023. The following is recorded:- “KV: Do you know a crewing officer by the name of Janice Trustram? CL: Janice used to be cabin crew, yes remember her. KV: If yes, are your friends? How would you describe your friendship? CL: I used to fly with her now and again. We are friends on Facebook otherwise not close friends. Nice person, don’t see her as such. KV: Have you ever asked Janice Trustram in particular to make roster changes for you? CL: No, I don’t see Janice. I don’t ask her to make changes.”[50]In addition, Kelly Valentine obtained an audio recording of a call between the claimant and Christopher Lee from 4 June 2022. The transcript is as follows:- “Transcript call between Christopher Lee (CL) and Janice Trustram (JT) 4th June 2022. CL: Hello? JT: Hi is that, Chris? It’s Janice. CL: (inaudible) You alright love? JT: I just… I know you said before about umm if you didn’t have “willing to fly” to give you a call. CL: Oh bless… I missed what you said just then darling, what was it? JT: I know you haven’t got “willing to fly” but I know you said before to give you a call. CL: Oh yeah. Absolutely yeah, but ahh I’m off (inaudible) … is it for today darling or tomorrow? JT: Yeah, yeah, no, it’s for today. CL: Today? Oh bless you. Eh… what time is it that you need darling? JT: Umm, I’ll just have to look at what we’ve got. CL: I’m doing the ride now for Paul and I won’t really get home until a bit later on so I think I’ll stick it today. JT: Yeah, no worries. CL: I could do tomorrow darling, if you want? JT: I’ll pop it on there for you, “willing to fly”, but I just thought I’d give you a call just before I phone anyone else. Case Number: 3312511/2023 3313179/2023 12 CL: Oh bless you, you’re really kind darling. I’m so sorry I’m letting you down. JT: No, you’re not, you’re not at all, I just thought I’d try you first. CL: Oh you’re a star, I love you loads. Babes you know what, I know you can’t listen, but I will help, you know, and I will send you a “you know what”. JT: Darling… we will sort it out, but that’s not what it is about. Ok? Alright, take care sweetheart.”[51]We have heard the call.[52]We make clear that we place no reliance on the somewhat flowery terminology used by Christopher Lee such as “love”, “darling”, “babe” etc which is clearly just how Christopher Lee addresses people.[53]However, we find the content is highly relevant.53.1 The claimant does not have to explain who she is – Christopher Lee clearly knows her.53.2 Despite not having marked himself as “willing to fly”, pursuant to some earlier communication between them to call him nevertheless, the claimant has done so.53.3 The claimant states she is doing so before she calls anyone else which suggests she is doing him a favour. The claimant told us that this was not the first call, but we reject that evidence.53.4 The reference to “I’ll just have a look at what we’ve got” suggests there was more than one flight involved.53.5 The final exchange is Christopher Lee expressing gratitude for the call, refers to him helping by sending the claimant a “you know what” and the claimant immediately shutting him down stating, in reference to the “you know what”, that that’s not what it is about.[54]The claimant sought to explain, both in the disciplinary process and to us that the “you know what” was a reference to Christopher Lee sending her links to buy fairground equipment. The claimant claimed that the extent of their relationship was a common interest in fairground equipment as they both had sideline businesses in that sector. She has evidence of some such links on Facebook. We do not accept the claimant’s evidence about the “you know what” being a link to fairground equipment advertisements. We find that this is a clear reference to a “tit for tat” relationship in that Christopher Lee would, in some way, reward the claimant materially for preferential treatment in being rostered for flights.[55]Kelly Valentine produced an investigation summary report dated 30 June 2023. It states:- Case Number: 3312511/2023 3313179/2023 13 “JT did not know why she made the changes and was surprised there was so many. JT confirmed she has not given her log in details to anyone else and would always lock her computer when leaving her desk as she takes IT security very seriously.”[56]The first line of that quote is not quite accurate as, as has been already quoted, the claimant stated she had not made the changes and did not say that she didn’t know why she had made the changes.[57]It is fair to say that the report has been predicated on the basis that the claimant had indeed made the changes. The claimant complains that no investigation was made to see if anyone else cold be detected as having logged on to AIMS using her username and password. We had no real evidence that IT could have done this. Indeed, Gill Baudot told us that whilst an IP address might be obtainable for the initial log on to the respondent’s system, it would not identify the computer used and, in any event, an IP address could not be obtained for the ”AIMS” system.[58]The investigation report recommended formal action on the grounds of gross misconduct. We find that the allegation was serious enough to constitute gross misconduct. The claimant accepted in oral evidence that whoever made the changes it would violate safety regulations, was a breach of a position of trust, was unfair to other cabin crew, and was tantamount to dishonesty.[59]Billy Manning was asked by Employee Relations to chair the claimant’s disciplinary hearing. The claimant complains that he lacked experience. Billy Manning was acting up in his position and accepted that he had limited experience of conducting disciplinary hearings but that he had had training and had been involved as a notetaker and investigator before.[60]On 14 July 2023 the claimant was sent an anonymous email that she later discovered was from someone call Carl Orru. This stated:- “Just to give you the heads up that you are being investigated and it’s very much Galley fm news. All I know is Chris Lee is being interviewed by Kerry Bray at Liverpool this week and it’s being said that you have made over 100 changes to Chris. Apparently he has an agreement with a few people in crewing for changes. Danny Ciupuliga has made changes and you should ask them to investigate some of his staff travel flights that he swapped crew and one of them being Chris and was overheard by other crew. Lots being leaked by the managers and your name is out there so want to warn you as apparently you was dragged out of the office for a meeting end of May and sent home under investigation”[61]Billy Manning forwarded that email for consideration, and, when it appeared that Danny Ciupuliga had only changed Christopher Lee’s roster three times, no further action was taken.[62]On 20 July 2023 the claimant was invited to a disciplinary hearing. The invitation letter says as follows:- Case Number: 3312511/2023 3313179/2023 14 “At the hearing we will discuss allegations that have been made against you regarding your conduct contrary to EasyJet’s disciplinary policy. These allegations are:• Intentional misuse of your role responsibilities making changes to a crew member’s roster outside of the Crewing Team’s 5-day maximum window. … You are entitled to be accompanied by a companion or a trade union representative (including a trade union official) of your choice. … We have received a medical certificate advising that you are currently signed off from work and to support the next steps we have sought Occupational Health guidance. The Occupational Health report received on 17 July confirmed that you are currently unfit for work however you are able to attend formal meetings following your investigation hearing. The Occupational Health report recommends for consideration to support this process, such as a video call, accompanied by a companion and frequent breaks at the meeting should they be required. This meeting has been arranged via a Teams call and we are able to support both other recommended adjustments. … Please be advised that the allegation is considered to be gross misconduct and if found to be proven, your employment may be immediately terminated in accordance with the Disciplinary Policy”.[63]The disciplinary hearing was heard on 27 July 2023. Due to the incorrect data on the time the changes had been made, the claimant was able to show that on two occasions, 23 August and 8 November 2022, she was not at work when the change had apparently been made.[64]The claimant read out a prepared statement which included:- “Given the serious nature of these allegations and the potential implications on my reputation and career, I urge the company to conduct a thorough investigation into the access logs, security measures, and any other relevant information to determine the true identity of the individual responsible for the changes. The changes have clearly been made but it wasn’t me and can prove that I wasn’t there on occasions so someone somewhere was logging in as me. Who? Again I have an email suggesting a crewing officer might be to blame and it is not something I can personally investigate but I’m sure you can.”[65]The meeting was adjourned and reconvened on 10 August 2023. The following is recorded:- “Claimant: Lots of people have laptops and everyone has access. They can see when I was in, making it an easy thing to do. That’s something that IT can check, have you looked into that? B: Not yet these meetings are to follow up with questions, that seems quite specific and something they would have to do out of malice. Case Number: 3312511/2023 3313179/2023 15 JT: Yes, it would be specific action for me to take. I can provide several reasons to support the fact that I was not present. B: Is there anyone you suspect of doing this? JT: I can only speculate, and I see no reason for me to do it. I am unsure whether it is malice or if someone has ulterior motives, making me an easy target.”[66]On 17 August 2023 the claimant was informed that she had been dismissed.[67]The disciplinary outcome letter includes the following: “[Commenting on the claimant’s relationship with Christopher Lee] Based on the evidence and meeting notes I believe you have a friendship which includes a common interest outside of EasyJet working with one another. I believe that this friendship is the reason why you are making these changes. … Someone using your AIMS account During the disciplinary hearing, your explanation for all of the changes to Christopher’s roster outside of the maximum time window was that someone else must have used your log in details and password to access your account and make the changes. You said you had never shared your log in and password details with anyone but have regularly had IT issues. I asked you if you could provide who you believe may have done this and why however you were unable to, therefore I am unable to investigate this and it leads me to the conclusion that the changes have been made by yourself due to the evidence discussed with you. … I have also explored the possibility of logging into AIMS and other devices, and I can conform that it is possible to log in on devices outside of the desktops in the academy. This means that it would be possible to misuse and make changes from any device via Citrix gateway and single sign on, this includes personal devices”.[68]The conclusion is as follows:- “Conclusion In summary I believe you have intentionally manipulated Christopher Lee’s roster. I perceive your actions will have been for a gain to both yourself and/or Christopher and are to the detriment of the other crew members who were removed from the flights. I believe you have been dishonest, resulting in a lack of trust and confidence in you as an employee. We cannot condone this kind of behaviour from any employee at EasyJet and this goes against our core values as a business. During this process you have not presented a response that removes the concern of the intentional misuse of your role responsibilities and dishonesty in line with the evidence provided. As explained in your disciplinary invite letter, the allegation is considered to be gross misconduct and if founded, your employment may be immediately terminated in Case Number: 3312511/2023 3313179/2023 16 accordance with the disciplinary policy.”[69]We find that the reason for dismissal was gross misconduct.[70]We find that Billy Manning genuinely believed that the claimant had committed gross misconduct.[71]We accept that the times of the changes at that time were incorrect. However, we find that the dates were accurate, and that the claimant had had every opportunity, which she took, to investigate whether she could show she was not at work at the material time.[72]We find that Billy Manning rejecting at that stage the explanation for the 23 August that she was in a taxi and could not have made the changes remotely, was unjustified but we do not find that that was due to bias or because the claimant was on sick leave or had done a protected act. We accept that Billy Manning did not know the claimant had brought a previous employment tribunal claim. We find that Billy Manning’s belief was based on reasonable grounds in that the fact that the changes had been made using the claimant’s username and password was never in dispute and that the call of 4 June 2022 was significant. We find that Billy Manning had reasonable grounds to conclude that the claimant had made the changes.[73]We find that the respondent conducted a reasonable investigation. We find that, in the circumstances, there were no realistic further investigations that could have been made to see if someone else had logged on to use the claimant’s ID to make the changes. Managers would be highly unlikely to recall specific dates and times when the claimant may have taken lunchbreaks etc. It appears that IT could not assist further. Further, given the strength of the evidence already obtained, including the telephone call, such further investigation may not have been warranted.[74]The claimant appealed. The appeal was heard by Gill Baudot on 21 September 2023. The hearing notes are 12 pages long and the meeting lasted from 10.35 to 13.20. The meeting was thorough, and the claimant was able to advance her arguments.[75]Gill Baudot adjourned to make further enquiries. She specifically checked the changed times with IT and discovered the error in the data. The corrected times confirm that the changes were all made when the claimant was at work. In essence, the case became stronger against the claimant.[76]Gill Baudot did not disclose the new data to the claimant before deciding to reject her appeal (it was sent with the appeal outcome letter).[77]We have considered whether that has rendered the appeal procedure unfair. Gill Baudot accepted in hindsight that it would have been better if she had reconvened having given the claimant the revised times data. We find that it did not render the appeal procedure unfair. The claimant was not prejudiced. She already had the dates, and the timings were not so different as to mean Case Number: 3312511/2023 3313179/2023 17 she was deprived of the opportunity to investigate to see if she could show she was not at work at the time. She had already had that opportunity.
Conclusions
[78]We find that the reason for dismissal was gross misconduct.[79]We find that subjecting the claimant to the disciplinary process and dismissing her and not allowing her appeal were unfavourable treatment and detriments.[80]We find that the unfavourable treatment was not because of her sickness absence.[81]We find that the detriments were not because she had done a protected act.[82]We find that the respondent had reasonable grounds for believing that the claimant had committed gross misconduct and that was based on a reasonable investigation.[83]We find that the decision to dismiss was within the range of reasonable responses of a reasonable employer.[84]We find that on the balance of probabilities the claimant did make the changes and was in fundamental breach of her contract of employment entitling the respondent summarily to terminate her employment.[85]For the above reasons the claimant’s claims are dismissed. Approved by: