When considering whether it’s unfair to dismiss an employee, tribunals must take into account the reasonableness of the employer’s decision. In Garcha-Singh v BA Plc, the Employment Appeal Tribunal (EAT) held that it was fair to dismiss an employee although BA had extended the termination date on seven separate occasions.
Basic facts
Mr Garcha-Singh had worked for BA as a member of Cabin Crew Long Haul since 1997. The company’s Absence Management Policy (AMP), which set out the procedure to be followed in the event of a medical incapacity, was incorporated into his contract, giving him the right to appeal against the decision to terminate his employment.
Following a lengthy illness, he was dismissed by reason of incapability on 31 August 2017, effective from 5 January 2018, a date that was subsequently extended to facilitate his return to work. When BA gave him notice again that his contract would end on 31 July 2018, he appealed that decision unsuccessfully. However, his contract was subsequently extended again to allow a further review meeting to take place.
In October 2018 he was admitted to hospital with a suspected stroke and was subsequently signed off work by his GP until the end of November 2018 with anxiety and depression, work related stress, hypertension and diabetes. His contract was finally terminated in December 2018, a decision that he did not get the chance to appeal. In total, the date of termination was extended seven times.
Mr Garcha-Singh lodged a claim for unfair dismissal, among other things, arguing that BA had either failed to apply its own absence management procedure or was in breach of the policy as it did not provide for a termination date to be set and then varied.
Tribunal decision
Rejecting his claim, the tribunal held that although BA’s approach was “unusual”, that did not mean it was unfair to dismiss him as the reason for extending the termination date was to allow him the opportunity to show that he was fit enough to return to work. He had, in any event, been given the opportunity to appeal, which he had exercised. It concluded that the procedure followed by BA was one that any reasonable employer might adopt.
Mr Garcha-Singh appealed, arguing that the successive extensions to his termination date constituted a deviation from the AMP and were therefore a breach of his contract. In addition, he argued that BA had further breached his contract when it failed to provide him with a right of appeal from the December 2018 decision to terminate his employment.
EAT decision
The EAT held that although the AMP only incorporated a procedure for a single decision with regard to terminating an employee’s contract, that did not mean that a manager could not postpone a termination date for the employee’s benefit, as had happened in this case. Clearly, the AMP could not cover every eventuality nor identify every step that a reasonable manager might take. The proposition that a manager could only do what was expressly spelt out in the procedure without committing a breach of contract was therefore unsustainable as an argument.
However, even if the successive postponements of the termination date had amounted to a breach of contract, the EAT held that would not have rendered the dismissal unfair. The tribunal still had to ask itself whether the procedure adopted by BA was within the range of reasonable responses for an employer. It was quite clear from the tribunal findings of fact that Mr Garcha-Singh had not suffered any substantive unfairness, not least because each of the extensions was to his advantage.
With regard to the argument that he should have been allowed to appeal the decision to terminate his contract in December 2018, the EAT held that Mr Garcha-Singh had little, if anything, to add to his earlier appeal and could not therefore undermine BA’s reason for terminating his employment.