Mr N Azarkevich v easyJet Airline Company Ltd: 6023269/2024

EMPLOYMENT TRIBUNALS

Case No 6023269/2024

Between

Mr N AzarkevichClaimant

easyJet Airline Company LtdRespondent

Before

Employment Judge Morton

In person for claimant

Mr R Wayman (instructed by Counsel) for respondent

Date 8 March 2026

JUDGMENT

[1]The claimant was fairly dismissed by the respondent for a reason falling with s 98(1)(b) Employment Rights Act 1996.

[2]The claimant’s claim of unfair dismissal does not succeed and is dismissed.

REASONS

[1]The Respondent is a very high profile short-haul airline that operates out of 28 base locations across Europe. The claimant was employed by the respondent from 26 March 2018, latterly as a First Officer (Pilot). He began his employment in Berlin, and was then transferred to the base at London Gatwick from 11 February 2019, where he worked until his dismissal on 15 October 2024. The decision to dismiss was taken after the claimant had been charged by the police with rape and sexual assault and was awaiting trial. On 16 June 2025 the claimant was acquitted of the charges after the Crown Prosecution Service decided to discontinue the proceedings.

[2]The claimant contacted ACAS on 16 October 2024 and the early conciliation certificate was issued on 21 October 2024. The claimant submitted a claim for unfair dismissal to the Tribunal on 27 December 2024 and it is not in dispute that the claim was brought in time.

[3]The respondent defended the claim and asserted that the claimant was dismissed for some other substantial reason or misconduct under s 98 Employment Rights Act 1996 (“ERA”). Its principal grounds for resisting the claim were set out on paragraph 16 (a) and (b) of its grounds of resistance and were:a. the serious nature of the criminal offences with which the claimant has been charged and the fact that the claimant was due to stand trial at a Crown Court in May 2025, which had the potential to bring respondent’s brand and reputation into serious disrepute should it have allowed the claimant’s employment to continue; and

b. the impact of the alleged acts committed given the nature of the claimant’s role on the trust and confidence that must exist between an employee and employer during the employment relationship.

[4]A preliminary hearing for case management took place before EJ Leith on 13 October 2025. The final hearing before me took place by CVP and I was satisfied that all participants could see and hear clearly, had access to the documents and witness statements in the case and were able to participate effectively.

[5]I heard evidence from the claimant himself and on behalf of the respondent from:a. Tina Stephens, Regional Flight Operations Manager who oversees four of the respondent’s bases, including London Gatwick;

b. Alex Jones, base captain based in Bristol, who took the decision to dismiss the claimant; and

c. Brendan Booth, Flight Operations Manager – Safety, who dealt with the Claimant’s appeal against his dismissal.

[6]I was provided with a bundle of documents consisting of 450 pages and two supplemental bundles. Reference to pages numbers in these reasons are references to page numbers in the main bundle and references to page numbers with the prefix “SB1” or “SB2” are references to page numbers in the supplemental bundles. Both parties provided me with helpful submissions at the end of the evidence, for which I was grateful.

[7]I wish to commend the claimant on the intelligent and courteous way in which he conducted the case and the skilful way in which he cross examined the respondent’s witnesses. Although I have ultimately found that his dismissal was fair, I also find, as set out below, that at times he was treated very unfairly by the respondent. I am not able to make comprehensive findings as to why this was the case (and nor ultimately would such finding be relevant to my conclusions on the issues). But it seemed to me that some of those charged with managing this difficult and sensitive situation, which carried the risk of grave consequences for the claimant certainly once he had been charged with the offences, were illequipped to do so, made some poor decisions and failed to document their actions adequately. The claimant was also not given answers about this poor handling when he should have been. This made a difficult situation much more difficult than it needed to have been for the claimant, even though, as I have found, the conduct of the case by Mr Jones and Mr Booth retrieved the situation for the respondent. An organisation of the size and with the resources available to the respondent ought to ensure that its managers understand the gravity of their actions in cases such as this, and handle them with the appropriate degree of skill and professionalism.

The Law

[8]The relevant statutory provision is set out in s98 ERA, the relevant parts of which provide as follows:(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— (a) … (b) relates to the conduct of the employee, (c) …

(3) …

(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.

[9]In order to meet the test in section 98(4) the Respondent must also follow a procedure that is fair in all the circumstances. In a case in which the employer relies on misconduct as its reason for dismissal, a fair procedure will ordinarily involve compliance with the provisions of the ACAS code of practice on grievances and discipline and with the Respondent's own written procedures. Where the dismissal is for some other substantial reason, the ACAS code of practice does not automatically apply, but the procedure adopted must still meet a test of reasonableness under s 98(4).

[10]In a case in which a dismissal is found to be procedurally unfair consideration must also be given to the principles in the case of Polkey v A E Dayton Services

[1988] ICR 142

and if it appears that the Claimant would have been fairly dismissed in any event had a fair procedure been followed then any compensation awarded must be reduced to reflect the percentage chance of that being the case.

[11]There is also case law on dismissals for some other substantial reason, and specifically on the considerations that arise when an employee is accused of a serious criminal offence, that could have an impact on the reputation of the employer. I was referred to the following cases by Mr Wayman and took those decisions into consideration when arriving at my decision: Leach v Office for Communications

[2012] ICR 1269

, L v K

[2021] SLT 897

and Lafferty v Nuffield Health

UKEATS/0006/19/SS

. Issues in the case

[12]The issues set out for determination at the hearing are those that ordinarily arise in a case of unfair dismissal where it is common ground that the claimant has been dismissed. These were identified by EJ Leith at the case management hearing on 13 October 2025 as being as follows: 1.2 What was the reason or principal reason for dismissal? The respondent says the reason was a substantial reason capable of justifying dismissal, namely the reasons set out in paragraph 16(a) and (b) of the Grounds of Resistance (see paragraph 3 above). Alternatively, the respondent says that the reason was misconduct. 1.3 If the reason was some other substantial reason, did the respondent act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the claimant? 1.4 If the reason was misconduct, did the respondent act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the claimant? The Tribunal will usually decide, in particular, whether:1.4.1 there were reasonable grounds for that belief;

1.4.2 at the time the belief was formed the respondent had carried out a reasonable investigation;

1.4.3 the respondent otherwise acted in a procedurally fair manner; and

1.4.4 dismissal was within the range of reasonable responses.

Findings of fact

[13]The following findings are made on a balance of probabilities after hearing and reading all the witness and relevant documentary evidence with which I was provided. I have not made findings of fact that it was not necessary for me to make to determine the issues that were to be decided at the hearing.

[14]The claimant was, as noted, working for the respondent as a First Officer when on 19 April 2023 he was arrested on allegations of rape (page 166). The respondent was informed of this fact by Sussex Police the following day. The claimant had been released on bail pending further investigation. The Claimant’s roster was amended and his flying duties removed pending further discussion with him and he was invited to attend a meeting with his Base Captain, Lynne Clark, on 26 April 2023. Following that meeting, it was agreed that the Claimant could resume his flying duties whilst under investigation, and his roster was amended accordingly. An email at page 171 from Captain Clark to, amongst others Tina Stephens and Jonny Petts, (who was also a Base Captain at London Gatwick and became the claimant’s line manager in February 2024) summarised the discussion as follows:• * He will update crewing and HR with his new phone number

• * He will keep us updated of any developments – good and bad

• * He will raise his hand at any time and go AMA if he feels he is affected/stressed – and then advise me on the situation by phone or email

• * He will let us know if he needs to take himself off roster more permanently if he is too distracted/stressed to perform properly and will inform his AME accordingly

• * He will contact EAP, PSP or Time to Talk to get some mental health support (I have referred him to those resources)

• * If there is adverse PR then we may need to take him off roster (he lives on a new local estate where quite a number of crew live and he was seen being arrested so there may be quite a bit of line chatter which we may need to address locally)

• * That we will maintain an open and honest dialogue throughout this period and will assume that he is innocent until proven guilty

[15]This arrangement continued until 2 May 2024 when Sussex Police informed the Respondent that the Claimant had been charged with rape and sexual assault. The Claimant also informed the Respondent (page 176). He explained that he would be required to attend the Magistrates Court on 5 June 2024 and that he had been required to surrender his passport as one of his bail conditions.

[16]As a result of the police decision to charge the claimant his status on the duty roster was changed to “SOC” meaning that he required special operational clearance and was relieved of all duties. Ms Stephens issued the instruction (page 179), which was to remain in place until 30 June 2024. Mr Petts was identified as his point of contact. The reasons Ms Stephens gave for this decision in her witness statement were firstly that the situation raised welfare concerns - pilots discharge a safety critical role and crew must be in the appropriate mental state to undertake the work. Secondly the respondent has a duty of care to staff and customers. Thirdly the claimant might feel uncomfortable with is colleagues in the period running up to a trial. Fourthly, at that moment in time the claimant did not have his passport, which had been seized by the police in order to prevent flight risk.

[17]Sussex Police sought clarification of whether the respondent would allow the claimant to continue flying after having been charged, a question raised in connection with the seizure of the claimant’s passport. Ms Stephens confirmed to the police that the claimant would not be able to fly for the respondent whilst awaiting trial (pages 182-3).

[18]The claimant’s passport was returned to him after the bail hearing on 5 June 2024. On 10 June his solicitor asked the respondent whether the claimant would be able to return to flying duties (page 208). There was further correspondence from the claimant about the possibility of him returning to flying duties during July, but no definitive response from the respondent.

[19]There then ensued a series of discussions about the claimant’s airside passes, which was characterised by confusion and, the respondent concedes, error on its part. On 18 July Robert Springett, Pilot Support Manager at London Gatwick, wrote to the claimant, informed him that Mr Petts had asked him to take matters forward and discuss next steps and asked the claimant if he had handed in his Easyjet and London Gatwick (LGW) airside passes. The claimant confirmed that he had not (pages 218-9). On 22 July the claimant’s solicitor made further enquiries about the claimant being able to return to full duties. Mr Petts forwarded this to Mr Springett and to Lynda Smith-Dennis, ER specialist (page 222). Ms Smith-Dennis replied to ask whether claimant’s airside pass had been revoked and who had dealt with it. Mr Springett replied as follows: Laura [Skillikorn] has ensured his passes are revoked. That happened last week, however, he's confirmed with me he still has them in his possession. I had a video call with Fiona last week regarding NA,._ Fiona was going to arrange a catch up with lawyers as to next steps for NA, and then copy me into a meeting invite. Fiona is aware the passes have been revoked, which leaves other options a little limited.

[20]Mr Wayman submitted that the issue of the airside pass was a red herring in this case with no bearing on the eventual decision that the claimant ought to be dismissed. Clearly however the decisions made in respect of the claimant in the aftermath of his being charged had a profound impact on the claimant’s view of the respondent’s reasons for acting as it did. Given the strength of the claimant’s concerns, the respondent’s concession that it made at least one error in its handling of the situation I have considered it necessary to make findings as far as possible about what did happen in order properly to evaluate the respondent’s actions and the reasons for them.

[21]Doing so was complicated by the fact that neither Mr Springett or Mr Petts gave evidence at the hearing and not all of their decisions and interactions appear to have been properly documented which I found very surprising, giving the gravity of the matter for the claimant. For example, there were no minutes or written record of the meeting that it was common ground took place on 31 July 2024 between Mr Springett and the claimant at which he told the claimant that as he no longer held an airside pass, he was in breach of the terms of his contract and would be placed on a no fly roster with a suspension of his salary. Mr Springett also told the claimant that he was unable to hold an airside pass due to “Gatwick Airport airside laws”, a statement that the respondent admits was incorrect. It also admits that the decision to suspend the claimant’s pay was incorrect.

[22]The claimant was therefore at this point in a situation in which his airside pass had been suspended on the respondent’s instruction. It appeared from an entry in the document described as an “investigation summary report” in the second supplementary bundle at SB2 page 5 that the passes had been suspended on the instruction of Laura Skillikorn, another pilot support officer. Her reasons for giving this instruction remain obscure, but the exchange between Mr Springett and Mr Petts at pages 221-222 suggest that someone at the respondent had taken the view that the claimant ought to have his passes revoked in the circumstances, but with the basis for doing not clearly stated. In his appeal outcome letter, Mr Booth suggested that the mistake arose because base management had confused the fact of the claimant having been formally charged with offences with his having been convicted (conviction being a valid ground for suspension of an airside pass). That is certainly a plausible explanation but I was unable to determine that that was the case.

[23]From the claimant’s perspective, this was then misrepresented to him as a failure on his part to meet with airside laws set by the airport itself. This was untrue both as a matter of fact (the airside laws do not require the revocation of the pass of someone who has been charged but not convicted) and given that the revocation of the pass was initiated not by the airport but by the respondent. It was then suggested that to the claimant by Mr Springett that he was in breach of the terms of his contract as a result of the suspension of his pass and that he was not entitled to be paid, both of which were untrue. The claimant asked whether he could perform some landside duties that would not have involved flying, or required an airside pass, but also decided to investigate the position for himself with the help of his solicitor, who queried the respondent’s analysis of the rules. He also queried why his company pass had been suspended, but did not receive a response until 8 August, when Mr Petts told him in a phone call that there were no landside jobs available because of a security risk, the nature of which he did not explain. This part of the claimant’s evidence was not tested in cross examination and Mr Wayman said at the outset of the hearing that I should not assume that every element of the claimant’s 45 page witness statement that was not directly challenged was conceded by the respondent. I have borne that in mind, but the claimant’s account of these events is largely supported by the such documentation as there was and was inherently credible. The respondent’s written record of the discussions between Mr Petts and the claimant is incomplete in circumstances when those discussions ought to have been recorded through contemporaneous notes or follow up communications.

[24]The claimant eventually attended the Gatwick airport ID centre himself on 21 August and learned that it was the respondent who had requested the revocation of his airside pass, not the airport. He wrote to Mr Springett and Mr Petts that day (page 243) asking for his situation to be reviewed urgently as he appeared to have been suspended unlawfully. Mr Springett responded with a request for a timeline (page 245) which the claimant provided.

[25]What appears to have happened next is that Mr Petts sought advice from the respondent’s employment relations team. On 28 August 2024 he received the following email from Lynda Smith-Dennis (page 246): Thank you for taking the time to discuss the LGW case yesterday, as discussed I recommend the following in terms of next steps;• * Have a conversation with the pilot to advise that it is our intention to invite them to a meeting to discuss their ongoing employment based on our concerns of the potential reputational impact on the business to allow them to continue working at easyJet

• * There are two options for them to consider; o * Attends the meeting, this could result in a dismissal, in which case PILON would be paid o * Takes a career break, which effectively is a resignation, he would not be paid notice, on conclusion of the criminal case and in the eventuality of being found not guilty we would re-engage him at easyJet ▪ * Flight Ops own the process of re-engaging a pilot after a career break so speak to Tina / Paul about the process – Paul has already said we would re- engage after a career break if found not guilty

• * If he chooses not to take a career break we will proceed to inviting him to a meeting to discuss his ongoing employment, this may lead to dismissal for SOSR. If they are dismissed through SOSR, there would be nothing to stop them reapplying and we would have to make a decision at that time on suitability. Please let me know once you have spoken to the pilot.

[26]Mr Petts then initiated a conversation with the claimant. He called the claimant and first suggested a meeting in a café, which the claimant declined. Mr Petts then continued the conversation on the phone. I accept the claimant’s account of this conversation as once again, there is no documentary evidence of it from Mr Petts. Mr Petts told the claimant that “they” wanted to dismiss him and he had two options - a formal dismissal or a career break. Mr Petts said that the claimant was a potential reputational risk and could not remain employed at the respondent, which is a business that needs to protect its reputation. This was the first time that the respondent had expressed any concerns to the claimant about reputational risk to the organisation. As noted, this conversation was undocumented and as Mr Petts did not give evidence, it is unclear to what extent he implemented ER’s guidance in conducting the conversation. The lack of procedural safeguards or notes of the meeting are a striking failure by the respondent at this juncture to meet the standards that could reasonably be expected of a large and well-resourced organisation. It is clear that the claimant assumed that he had been given an ultimatum and was taken by surprise, having not been expected the conversation to go in that direction. He was still thinking about his airside pass and wondering whether could return to flying duties. He himself wrote to Mr Petts on 29 August remarking on the fact that none of the decisions that had been taken up to that point had been properly documented and he would like a written confirmation of the options that had been put to him on 28 August. Mr Petts then tried to call the claimant several times, without success, and there was no further contact between them after that.

[27]On 2 September the claimant wrote to Ms Stephens (page 256-7), as he was unhappy with this turn of events and the manner in which Mr Petts had handled the situation. He had informed Mr Petts that he intended to “Take the matter further with upper management” (page 255). In his email to Ms Stephens the claimant set out the background and described the events that followed his conversation with Mr Springett on 31 July, including his own discovery that the respondent was incorrect to be treating him as in breach of airside laws and that the instruction to suspend his airside pass had been issued by the respondent, not the airport. He goes on to describe how, when the raised this with Mr Springett on 21 August (page 243) and Mr Petts on 28 August (page 247), what followed was the conversation with Mr Petts on 28 August, which he described in his email.

[28]Ms Stephens initially referred the claimant back to Mr Petts (page 256), a decision I found somewhat difficult to understand given the nature of the claimant’s email. As the claimant fairly pointed out in cross examining Ms Stephens, he was raising concerns about Mr Petts and it was therefore not appropriate to refer him back to Mr Petts to address those concerns. Ms Stephens said in cross examination that she did not recognise the claimant’s email as a grievance. The claimant then wrote to Alexander Gerritsen, Chief Pilot (page 264-5), in substantially the same terms as he had written to Ms Stephens, in an effort to escalate the matter to a higher level of management. Mr Gerritsen however asked Ms Stephens to look into the matter. She then investigated the background to the airside pass issue, concluded that there had been an error, but also decided that future management of the claimant’s situation should be handled at a different base. The reasons she gave for this in her witness statement was what she understood to be the claimant’s unwillingness to consider a career break until his trial. I found that explanation somewhat disingenuous as it must have been obvious to Ms Stephens that the situation had not been well handled by Mr Springett and Mr Petts and that the claimant had not been treated fairly up to that point. I also found her explanation of the airside pass issue both to the claimant at the time and the tribunal to have been not wholly satisfactory and difficult to reconcile with the account at SB2 page 5. I do not consider that Ms Stephens’ account was, as she described it “completely transparent”.

[29]Ms Stephens wrote to the claimant on 6 September (page 263). She said: “Alex Gerritsen has passed your email to me to review further to help give some clarity on some of the points you have raised in your email regarding your ID and the current roster code of NFID which is unpaid. To be completely transparent there has been a misunderstanding regarding the temporary suspension of your ID and who took responsibility for this to be actioned. After reviewing with the Pilot management team at LGW the instruction to temporarily suspend your pass was given from the base team. I can confirm the team have taken advice from EZY ID department who have advised that there was a requirement to inform Gatwick ID centre of the charge that has been brought against you given its severity. This was not made clear and a breakdown in communication led some to believe that LGW ID had suspended your ID, for this misunderstanding I apologise. Based on the information above I will be updating your roster from NFID to SOC from 2 August 2024, I have informed HR Service Centre of the change of roster code to ensure that you receive the sector loss payment backdated to 2 August 2024 this will paid to you in September's pay. I also wanted to acknowledge that you feel that at a local level you matter has not been resolved therefore I will be assigning your case to Alex Jones Base Captain BRS who will be in touch with you shortly on the next steps.”

[30]It is understandable, given the tone and content of that email, that the claimant expected that Mr Jones was going to respond to the concerns set out in the claimant’s email to Mr Gerritsen. This is not what happened, however. On 13 September Mr Petts emailed Alex Jones, and told him where he would find the documents relevant to the situation (page 266-7). These documents were in the second supplementary bundle and were apparently compiled by Mr Springett who was not called as a witness. The “Investigation Report” was a difficult document to understand. It contained a timeline and a list of sexual offences and a brief description of what Mr Springett describes as his “investigation”, which apparently began on 29 August 2024. There is then a “Disciplinary Summary Report” (SB” page 10), which describes the details of the allegations against the claimant as “Fitness to remain employed at EasyJet while there is an ongoing investigation into concerns around the allegation and conviction (sic) by West Sussex police of sexual misconduct, following arrest on the accusation of rape on 19th April 2023 at his home.” All of this suggests that Mr Springett was confused about what was required of him and did not understand the criminal justice process very well. It is further evidence that he may confused being charged with an offence with being convicted of it. The document does however reflect the advice given by ER to Mr Petts on 28 August 2024 that there should be a conversation with the claimant about his ongoing employment given the reputational risk to the respondent. This is an important point, because the burden rests on the respondent to show that it had a potentially fair reason to dismiss. I consider that both Mr Springett and Mr Petts were confused by what was required in this situation and as noted, it is unclear how effectively Mr Petts had communicated to the claimant the advice that ER had given him. However I find as a fact that at this juncture, what was forming in the minds of the decision makers at the respondent, and in particular ER and soon afterwards Mr Jones, an understanding that the real issue was whether there was a material risk to the respondent’s reputation in keeping the claimant in its employment.

[31]Mr Jones wrote to the claimant on 24 September 2024 (page 272) inviting him to a meeting. This was the first time that the claimant was engaged with in a way that contained some procedural safeguards. He was told what the meeting was about, was provided with relevant documentation, told of his right to be accompanied and informed that dismissal was a possible outcome of the meeting. The reasons for the meeting were described as follows:• You allegedly committing an act outside of work which does or has the potential to bring easyJet brand and reputation into serious disrepute in allowing you to continue in employment

• The impact of the alleged acts committed given the nature of your role on the trust and confidence that must exist between an employee and employer during the employment relationship.

[32]I note at this point that the claimant challenged the legitimacy of appointing a base captain such as Mr Jones to make a decision about his future employment. I understand why the claimant would have made this point – it was perhaps a consequence of his justified perception that the initial handling of his case by his base level captain Mr Petts had been very unsatisfactory. But I was not persuaded that it was unreasonable for the respondent to entrust the decision to another base captain. Base captain is a role of sufficient seniority to make delegation of the decision to that level reasonable. There was nothing in the documentation that applied to the claimant that showed that this decision was at odds with the respondent’s own written procedures and internal rules. The disciplinary procedure at page 149, which applied to all UK employees, provides the respondent with broad discretion and is not prescriptive about levels at which members of management have the authority to dismiss – it merely refers to “an appropriate Disciplinary Manager”. The delegated authority document at page 103, which I find was applicable to the claimant’s employment, was also nonprescriptive and provides that the authority to dismiss staff is delegated by the Group People Director. I find therefore that Mr Jones was acting within appropriate delegated authority in conducting the formal process with the claimant that led to his dismissal.

[33]I also note that the respondent’s disciplinary policy was very clear about what might happen in the event that an employee was accused of criminal conduct outside of work. I set out the relevant section in full: Criminal Allegations If you’re arrested on suspicion of, charged with, bailed in relation to, cautioned or convicted of any criminal offence at any time during your employment with easyJet, or at any time between receiving a job offer and starting with easyJet, you must inform your Line Manager, Base Management Team or Onboarding Co-ordinator about this. Consideration will be given as to what effect the offence, charge, caution or conviction has on your suitability to do the job and your relationship with easyJet, work colleagues and customers. You’ll be required to assist us in investigations and may be asked to provide further information and/or documents. We may provide any information and/or documents gathered through the investigations and/or disciplinary to the relevant authorities. Obstructive behaviour or lack of co-operation could result in disciplinary action being taken. If we decide to take disciplinary action, we won’t usually wait for the outcome of any prosecution before deciding what action, if any, to take. This decision will be taken on a case by case basis. Where you’re unable or have been advised not to attend a disciplinary hearing or say anything about a pending criminal matter, we may have to take a decision based on the available evidence. A criminal investigation, charge or conviction relating to conduct outside work may be treated as a disciplinary matter or be considered grounds for taking action to terminate your employment, if we consider that it’s appropriate to treat it in this manner.

[34]The claimant met with Mr Jones on 27 September 2024 and the notes of the meeting were at pages 301 – 303. The claimant elected not to be accompanied at any of the meetings during this process. Mr Jones felt unable to make a decision directly after the meeting on 27 September and the meeting therefore reconvened on 15 October 2024. The notes of the reconvened meeting were at pages 304-306. The claimant purported not to really understand what the purpose of the meeting was, but I find that he ought to have understood, given the very clear terms of the letter at page 272.

[35]At the reconvened meeting the claimant continued to complain, to some extent justifiably, about the lack of documentation about his situation to date and the fact that reputational risk to the respondent had not been formally put to him by the respondent. Pausing there, although there had been a lack of formal documentation until Mr Jones became involved, as I have noted, the letter at page 272 was very clear that reputation risk was now under discussion. Mr Jones asked whether there had been any developments in the criminal proceedings since the previous meeting. The claimant said that there had not. Mr Jones then adjourned the meeting for 15 minutes. On his return the exchange was as follows: AJ - To your point, no one has told you why you have been on SOC. The reason you are on SOC is that We have duty of care to our staff and customers as you have been charged with rape. Although we live in a society of innocent until proven guilty, from an employment perspective, we must consider all possibilities. To have you on our premises on our aircraft could cause serious reputational damage in the event your case goes to trial; whether you are found guilty or innocent. I believe it is a reasonable that in this instance you have not been reinstated to ﬂying duties or offered any other duties as I believe there is a risk of serious reputational damage to the business and brand NA - I acknowledge this. This should have been provide legally in writing, as I have said. I re-iterate I want to work and I am ﬁt to ﬂy. It is up to EZY to prove these points and supply me evidence. AJ - I took the case over on the 11/09. It is my job to assess this and work out what course of action we should take. NA - The points you are imposing are only subjective. This does not stand legally. AJ - I will be dismissing you under some other substantial reason (SOSR). You will receive 3 months’ pay in Lieu including any LVE owed. This will be described in the Outcome letter. The reason I have done this is that I do believe there is potential risk of damage to the easyJet brand. Not only the potential for reputational damage but impact on trust and conﬁdence required in your role is affected, and we cannot be assured that this will be maintained. I am sorry Nikita, but that is the decision I have come to. You will receive the required paperwork for this. (The outcome letter, 3 months full pay in lieu, and Annual leave).

[36]Mr Jones sent the notes of the meeting to the claimant on 18 October 2024 (page 300), and informed him that he would have the right to appeal within seven days of receipt of the outcome letter. The letter confirming the decision to terminate the claimant’s employment was sent to the claimant on 31 October 2024 (page 309 -312). Mr Jones based his decision both on potential reputational damage and on damage to trust and confidence. He said: We have a duty of care to our customers, staff, clients, and contractors, which has led to the decision for you to remain under SOC status. You advised that you understand that easyJet wants to protect the brand reputation, you understood the impact of the image of your situation and that you understand the perceived damage that may occur to easyJet. You also stated that there is no evidence to suggest there has been brand damage, that this is a false allegation and slander and that you did not want to speculate on brand damage and that you are not aware of any brand damage or public knowledge. It is my belief given the information you have provided that you are facing serious criminal charges which you are due to stand trial for at Crown Court in May 2025. easyJet is a trusted family-friendly brand and having reviewed the serious nature of the charges against you, I believe that on the balance of probability the company would suffer serious reputational damage if it were to continue to employ you. I do not think, especially given your current role as a trusted pilot, that this would be a ‘small’ story if it were to reach the public domain, due to the nature of the allegations against you and our customer base. Such information reaching the public domain, which will be publicly available, when you are on trial, could undermine public confidence in our brand and operation. In conclusion, I believe that easyJet could suffer serious reputational damage that may have a negative impact on the easyJet brand. I therefore uphold this allegation. The impact on trust and confidence In relation to this matter, and after reviewing the evidence and notes from our meeting, I understand that your position includes the following mitigations:• You operated easyJet aircraft while under police investigation for a year before being placed under Subject to Operational Clearance (SOC).

• You maintain that you are innocent until proven guilty. However, given that you have now been formally charged, we must consider the possibility that you may not only be found innocent but could also be found guilty. You are employed as a pilot and as such, are in a position of trust when dealing with crew and customers. The charges that have been brought against you have brought into question whether the trust and confidence that must exist between an employee and employer has been impacted and I believe that it has. I have looked at the alternative options available but given the impact that your charges have had on trust and confidence, I do not feel it would be appropriate to redeploy. Equally, I do not believe that redeploying you elsewhere in the business mitigates the reputational risk to easyJet.

[37]I note that although the question of the airside pass was discussed at the meeting, it was not referred to in the outcome letter. In my judgment it would have been better if some reference had been made to it, although I accept Mr Jones’ evidence that he had taken that issue into account, concluded that it had no real relevance to the decision to dismiss and that it had in any event been dealt with by Ms Stephens’ acknowledgement that there had been a miscommunication. In any event I find that that issue and the reasons the respondent had originally contemplated terminating the claimant’s employment played no part in Mr Jones decision, which was evidently based primarily on reputational risk. He gave a clear and satisfactory account of what was in his mind in the outcome letter. He also made observations about the impact on trust and confidence. This I considered to be less obviously satisfactory as a reason and I considered it carefully. I concluded that it was not outside the band of reasonable responses for Mr Jones to conclude that trust and confidence had been eroded when the police had made a decision to bring charges. There was a material difference between the situation following the claimant’s initial arrest and the situation following a confirmation that he would stand trial. It could not be said that no reasonable employer would draw the conclusion that trust and confidence had been eroded from facts such as these. The issue of trust and confidence and how it may be impaired in such a case, is discussed in the leading authority of Leach v Office of Communications, to which I return in my conclusions.

[38]The claimant tested Mr Jones belief with some very adept cross examination about the lack of evidence of reputational damage at the time of his dismissal. It was clear from his responses that Mr Jones based its decision on what he thought had a good chance of happening and the criticism that might have been levelled at the respondent had the claimant continued in its employment as a pilot in the period running up to and during the trial. Mr Jones accepted that he could not know with certainty what would happen, but despite the claimant’s careful questioning I accepted the explanation in Mr Jones’ witness statement that a trial on allegations of rape and sexual assault involving a serving airline pilot would be likely to attract significant media interest that would clearly have the potential to be damaging to the respondent’s brand and reputation.

[39]The claimant also tested Mr Jones’ decision not to consider alternatives to dismissal. On that Mr Jones said that he was aware that the claimant had been offered and refused a career break and did not therefore offer that alternative again. He did consider alternatives such as landside duties, but concluded that a risk to brand and reputation would still ensue if that option were adopted as the claimant would still be identifiable as the respondent’s employee. These are difficult decisions for an employer and I find that Mr Jones weighed the issues up carefully before making up his mind.

[40]The claimant appealed against the decision in a letter dated 1 November 2024 (page 313). Before turning to that I will deal with a point raised by the claimant in relation to the paperwork produced after his dismissal, in which the reason for dismissal was erroneously described as “gross misconduct” (page 293). I accept the respondent’s case that this was an administrative matter, with no external visibility or ramifications, and I did not regard it as evidence of a hidden motive for dismissing the claimant. I can see that the claimant will have been left susceptible to believing that the respondent had a hidden agenda, given the way in which his situation was initially mismanaged and the respondent’s failure to provide him with a proper response to his concerns about that. But I find the suggestion inherently improbable and, in any event, accept that once Mr Jones assumed conduct of the issue, a proper process was being adopted based on genuine and properly articulated concerns.

[41]The claimant’s appeal was dealt with by Mr Booth. Mr Booth’s approach was exceptionally thorough and I could find nothing to criticise in it. In my judgment he did what he could to understand the claimant’s position and to provide him with an alternative to dismissal.

[42]The claimant appealed on three grounds: he felt his dismissal was unfair and unduly cruel, he was innocent and he had never violated the respondent’s policies or the law and he felt no reasonable alternatives were offered. Mr Booth conducted the appeal process correctly. He reviewed the relevant background documentation as described in paragraph 4 of his witness statement and he invited the claimant to a meeting (page 316 and 319) on 15 November 2024 with an appropriately drafted letter. At the meeting, notes of which were at pages 368-9, he listened to what the claimant had to say, which consisted of points about the lack of evidence of any reputational damage to the respondent, the fact that he had been open and honest with the respondent so there could be no loss of trust and confidence and the fact that he did not consider himself to be a threat to the respondents staff and customers. When Mr Booth tried to discuss the issue of reputational damage with the claimant the claimant declined to engage and said that he had said everything he wanted to say. In his evidence Mr Both said that he did not feel that the claimant was really engaging with the appeal process at all and was adhering rigidly to his prepared statement and his expressed wish to return to all duties. It is true that the claimant’s responses to Mr Booth’s questions at page 369 were short and abrupt and the claimant did not appear to want to discuss the issues in any depth. Mr Booth tried to persuade him to speak more openly. He said “Talk to me as a human being, to understand the situation? Purpose of the meeting is to explore the appeal. Talk to me about how you are feeling? What is your feeling on the outcome? Not clear what outcome you want from the 3 points highlighted. What would you like the outcome to be when you reference reasonable alternatives?”

[43]In cross examining Mr Booth, the claimant said that he had taken offence at the remark that he should talk “as a human being”. It seemed to me clear however that Mr Booth’s intention was to try to find out what outcomes might be acceptable to the claimant, which was not clear from the prepared statement and whether there was anything he would have accepted as an outcome other than a return to full duties. As this did not elicit a response Mr Booth decided to adjourn the meeting to consider his decision.

[44]The claimant then wrote to Mr Booth and said that he wished to add to his appeal. Mr Booth suggested a further meeting on 25 November 2025 and made the appropriate arrangements. He meeting was short and the claimant said that having thought about matters further he would really like to come back to flight operations. He said he would be happy to return to any temporary position or take a career break. He understood that the respondent might not consider this appropriate but his objective would be to return to the respondent once the charges had been “dropped” (as he put it).

[45]Mr Booth wrote to the claimant on 2 December 2024 (page 331) with a copy of the respondent’s “Other Leave” policy which encompasses career breaks at page 146. He said that the claimant would need to confirm by 6 December whether he wanted Mr Booth to consider a career break as part of his appeal. On 3 December the claimant responded, saying, “As discussed during the appeal meeting and the telephone conversation, the target of my appeal is to return to the flight deck to my previous position. However, I am willing to explore other temporary alternative positions, considering my academic qualification, and possibly even explore a form of voluntary resignation, for example a career break, with conditions for my full reinstatement. The offer shown in your letter does not cover the possible option I am willing to consider.” The claimant then provided Mr Booth with some information about a case involving a pilot who had been standing trial for a criminal offence but was reported to have been employed by British Airways and allegedly remained an employee at the time of his trial. The claimant also sent for two further emails to Mr Booth that day expressing concerns about his dismissal and querying why the issues that he had raised regarding his base management had resulted in a disciplinary process conducted by Mr Jones rather than an investigation into his concerns.

[46]Mr Booth invited the claimant to a further and final appeal meeting to take place on 11 December 2024 (page 341 and 344) and asked the claimant to provide him with any further material the claimant wanted him to consider. The claimant responded with a detailed account of events to date on 9 December 2024 (page 341-2) and alleged that “The reason I was dismissed is because I uncovered and dared to challenge my base management's dishonesty and poor level of management. This is something which they could not forgive. The excuse to dismiss me under "potential reputational risk" and "loss of trust and confidence" was simply a banner to hide the real reason to dismiss me”.

[47]The final meeting took place on 11 December 2024 (pages 372-378). Again, Mr Booth adopted a thorough approach. Although the notes themselves are not verbatim and are in places difficult to follow, it is evident that he listened to the claimant carefully, and went through all the materials that the claimant had submitted, including a significant number of individual emails in order to ensure that he understood the factual circumstances.

[48]Mr Booth’s outcome letter was not sent until 20 January 2025, although the decision not to uphold the appeal was communicated in a telephone call on 24 December 2024. During that call he confirmed that he had reached his decision and that would be confirming it in writing but that I would wait until 3 January 2025 before writing to the claimant to allow him additional time to confirm whether to take a career break as an alternative. As the claimant did not respond to give this confirmation he sent the outcome letter. The claimant gave an explanation for his refusal to accept the career break option in cross examination. He said that he had wanted a guarantee of reinstatement and that anything less than that was too risky for him and did not in his mind represent a reasonable alternative to dismissal.

[49]In the outcome letter Mr Booth summarised his decision in relation to the first ground, namely that the decision was unfair and unduly cruel, as follows: The formal process was complied with in determining the outcome and the reasons for your dismissal were clearly articulated in your outcome letter dated 23rd October 2024. I concur with the assessment of Alex Jones, Base Captain BRS that easyJet could potentially suffer serious reputational damage that may have a negative impact on the easyJet brand. I further support Alex Jones’ assessment that the seriousness of the charges against you does bring into question the trust and confidence that easyJet must have in its employees, especially pilots who are in a significant position of trust for our crew and customers. I accept that you may feel your outcome is unduly cruel however, for the reasons stated above, I am in agreement that the potential impact on your colleagues and the organisation is such that dismissal is the appropriate outcome and I am comfortable with the process that was followed.

[50]Mr Booth went on to address the two other grounds of appeal, noting that actual violation of the law or company procedures was not the reason for the claimant’s dismissal and his professions of innocence were not relevant to that decision. On the question of alternatives to dismissal he referred to and upheld Mr Jones decision regarding redeployment and noted that the claimant had not availed himself of the offer of a career break either initially or when it was put forward again by Mr Booth himself. He also addressed the claimant’s other concerns, about the authority of the dismissing manager and the reasons why the decision to dismiss had been taken. It was evident from the detail in which he did so that he had conscientiously considered the claimant’s concerns and investigated the background to them.in order to reach a fair and reasoned decision.

Conclusion

[51]It is first of all for the respondent to prove on a balance of probabilities that it has dismissed for a reason that is potentially fair under s98 ERA. When it defended the claim, in January 2025, the claimant had not yet stood trial and it was not until May 2025 that he was acquitted. The respondent therefore pleaded in the alternative that it had dismissed the claimant for some other substantial reason under s 98(1)(b) ERA or for misconduct under s 98(2)(b). By the time of the hearing the misconduct ground became less relevant as a result of the claimant’s acquittal. The respondent needed to show that it had dismissed for a reason that at the time amounted to some other substantial reason under s98(1) (b) ERA. I concluded that the respondent did show that it dismissed because of its concern about the implications of keeping the claimant in his role while he was on trial for such serious criminal offences. This was clear in Mr Jones’ dismissal letter and the letter from Mr Booth declining to uphold the claimant’s appeal. That reason was one that was capable of falling within s 98(1)(b).

[52]Was the decision to dismiss on this ground justified? The case of Leach v The Office of Communications is the leading case on these difficult cases, where an individual is charged with a serious offence but not yet convicted or in some other recognisable way proven to be guilty of some reprehensible conduct. In Leach the background was described by Lord Justice Mummery as follows: “In this case the breakdown in trust arose from the dilemma of the Respondent when an apparently reliable source alerted it to the Claimant's alleged activities in Cambodia: if the Respondent continued to employ the Claimant in his overseas position and the allegations were publicised in the media, that could be potentially damaging to the reputation of the Respondent as a responsible organisation entrusted with wide- ranging national and international functions. To be more specific, the Respondent decided on "breakdown of trust" as the reason for dismissing the Claimant, having been told, at a time when nothing had been proved, of serious, but untested, allegations of child sex abuse by the Claimant overseas and in circumstances where it was difficult for the Respondent to investigate the allegations for itself. The information came to the Respondent in the form of a "limited disclosure" by a specialist Metropolitan Police unit, which was neither investigating the Claimant nor in a position to make full disclosure. As we shall see, this case shows the need for an employer, to whom a third party discloses information or makes allegations, to assess for itself, as far a practicable, the reliability of what it has been told. The employer should check the integrity of the informant body and the safeguards within its internal processes concerning the accuracy of the information supplied. The employer should consider the likely effect of disclosure and whether there was cogent evidence of a pressing need for disclosure to the employer.”

[53]The Court of Appeal held that dismissal in these or similar circumstances may be justified where there is a risk of reputational damage to the employer even though the allegations have not been proved. Employers are justified in being concerned about their public reputation and may be entitled to take the view that to continue to employ a person who has been charged with a serious offence could shake public confidence in it. The Court of Appeal acknowledged in that case that to justify a claimant's dismissal on the basis of reputational risk in the absence of any established misconduct may involve a grave injustice to the individual. But the central question under section 98 is what it is reasonable for the employer and all the circumstances to do. If the claimant is in fact innocent the injustice has been caused not by the employer but by those who have falsely accused him.

[54]In this case, whose facts clearly differ somewhat from those in Leach, the respondent was concerned about the impact on its reputation of the accusations made against the claimant and the public trial that was going to follow, both of which were known to it by reason of information provided by the claimant himself and by West Sussex Police. It had no reason to doubt the truth of the claimant’s circumstances or that the claimant had actually been charged with serious sexual offences. It seems to me that despite the differences in the facts of the two cases, the situation the respondent was facing fell squarely within the guidance provided by the Court of Appeal in Leach, about when dismissal may be justified on the basis of potential reputational risk and/or brand damage. As to whether it was reasonable for the respondent to conclude that reputational risk and brand damage could be outcome of a trial involving one of its pilots, given the nature of the offences, I conclude that this was entirely reasonable, for the reasons put to the claimant in cross examination by Mr Wayman. The press is interested in cases involving individuals who have positions of responsibility or that carry high social status, including airline pilots. The press is also in general interested in any story involving sexual misconduct and the identity of the employer of a person accused of such conduct may well become public knowledge. The fact of an individual having remained in paid employment despite serious criminal charges may also therefore become public knowledge, leading to criticism of the respondent’s judgment and decision making. Where the brand is one used by a large cross section of the public, including families, these concerns must be particularly acute. The respondent therefore established the substantive reason for its decision and I find that it fell within s 98(1)(b).

[55]The claimant’s case was essentially that the respondent dismissed him as an act of retaliation when he uncovered the inappropriate handling of the issue of his airside passes. He looks to the chronology of events in support of that argument as well as the respondent’s failure to provide him with satisfactory answers to his questions about that sequence of events. He pointed out in cross examination that he was not described as a reputational risk for several months after he was formally charged, but that the question of reputational risk surfaced only after he had found out that it was actually the respondent that had sought the suspension of his passes. I can understand why the claimant saw events in that way, but as I have noted, it is inherently improbable that the respondent would have taken that step after Ms Stephens had already acknowledged that the decisions reached about the passes had been incorrect and ER had already given guidance to Mr Petts on how he should be handling the matter. What I find to have been more likely is that the respondent realised that Mr Springett and Mr Petts were not handling the situation appropriately, firstly by trying to use the airline pass issue as a reason for bringing the claimant’s employment to an end, and then by communicating the respondent’s proposed next steps to the claimant in a seemingly clumsy way that took him by surprise. At that point Ms Stephens realised the conduct of the case would need to be handed to someone else, who could effectively implement the advice given by ER. Because the communication with the claimant was not always as clear as it should have been, he conceived a different version of events in which he made a causal link between his trying to escalate the issues to upper management and his dismissal. Ultimately however it is clear that the chronology does not support his version of events, because dismissal was already a possibility in the respondent’s mind on 28 August 2024, before his raised his complaint. I therefore reject the claimant’s case that there was another “real” reason for the dismissal.

[56]The question of whether the respondent acted reasonably in treating the reason relied on as a reason to dismiss, involves a consideration firstly of the procedure adopted and secondly of whether adequate consideration was given to alternatives to dismissal. As regards the procedure, I have identified earlier in these reasons my concerns about how the claimant’s case was initially handled by his base managers. Once the matter was handed to Mr Jones matters improved significantly, communications were documented and appropriate safeguards were put in place, including clear letters that set out the matters to be discussed at the meetings that took place, a reminder of the claimant’s right to be accompanied and information about the potential outcome of the meetings. Standards set by ACAS, whether or not technically applicable, were observed. At the appeal stage, Mr Booth went to considerable lengths to consider all aspects of the claimant’s appeal and to allow him to put forward additional points in a second meeting when the claimant had had a change of heart. Again, the appropriate procedural safeguards were observed. Mr Booth also ensured that he provided the claimant with a response to all of the points he raised, whether or not they were strictly speaking germane to the reasons for dismissal. I therefore find that any unfairness to the claimant arising from the mistakes made at the earlier stages of the process were cured by the later approach by Mr Jones and Mr Booth, and in particular the very thorough approach to the appeal adopted by Mr Booth, which addressed some of the questions Mr Jones had left unanswered in his decision letter. It is regrettable that there had not been better and clearer communication with the claimant at an earlier stage about the reasons for the respondent’s actions, but overall, I find that the procedure eventually adopted was fair and not undermined by the mistakes made at the earlier stages.

[57]I also find that the respondent acted fairly in its consideration of alternatives to dismissal. Mr Jones thought about the possibility of redeploying the claimant to a role that did not involve him flying. He decided that to do so would still entail an unacceptable degree of risk to the respondent’s reputation. That was in my judgement a reasonable decision to take. As regards the possibility of a career break, whilst the offer of a career break was originally put by Mr Petts in a way that made it seem unacceptable to the claimant and was perceived by him as a form of blackmail, Mr Booth approached the question differently and put it forward in a reasonable and well documented manner. A career break gave the claimant a way of escaping the predicament he was in, allowing matters to take their course and, if the outcome of the trial was his acquittal, would have given him a good chance of returning to his role as a pilot. Mr Booth confirmed in answer to a question put by me, that had the claimant been acquitted, all other things being equal, he could expect to be re-engaged.

[58]The claimant’s decision not to accept Mr Booth’s offer of a career break on these terms, despite the fact that it was technically not available to someone who had already been dismissed was in to some extent difficult to understand. He seemed unable to recognise both at the time and in his evidence to the tribunal, as Mr Wayman observed, that the worst had already happened, namely his dismissal, and that he was in no position to negotiate the terms on which he would be permitted to take a career break as an alternative to the decision to dismiss him being upheld by Mr Booth. Instead, he gave Mr Booth no option but to uphold that decision, by insisting on a cast iron guarantee that he would be reinstated – it was not unreasonable for Mr Booth to decline to give such an assurance. The claimant also had a rigid concept of risk, which made it difficult for him to acknowledge in cross examination that in making the decision to dismiss the respondent was acting on the basis of probability and its perception of the likelihood that things that might happen, rather than hard evidence of actual harm to its reputation.

[59]I therefore conclude that in the circumstances of this case the respondent has established that it dismissed the claimant for a substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. In doing so it acted reasonably within the meaning of s98(4) ERA. Accordingly, the claimant’s claim of unfair dismissal fails and is dismissed. Approved by