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In a recent case, Garcha-Singh -v- British Airways plc, the Employment Appeal Tribunal (EAT) shed light on the complexities of employee dismissals related to medical incapacity. The case concerned the postponement of an employee’s termination date on multiple occasions, leading to questions about the fairness of the dismissal.

Mr. Garcha-Singh, a cabin crew member, went on sick leave on 26th August 2016. British Airways plc (BA) decided to terminate his employment on 5th January 2018. However, instead of implementing the termination on the designated date, BA postponed it seven times, each time in an attempt to accommodate Mr Garcha-Singh’s health and support his return to work. In December 2018, BA decided not to postpone the termination date any further and the termination of Mr Garcha-Singh’s employment took effect.

Mr Garcha-Singh bought various claims, including a claim for unfair dismissal. The Tribunal found that he was not unfairly dismissed and the Claimant appealed against the Tribunal’s decision to the EAT.

Absence management Policy

BA’s Absence Management Policy (which was contractual) outlined the procedures to be followed in cases of employee medical incapacity. The Policy did not explicitly address postponing termination dates, but rather focused on setting a dismissal date and conducting review meetings before finalising the termination decision.  Mr Garcha-Singh argued that BA had breached the contractual Policy by extending his employment on multiple occasions, which wasn’t provided for under the Policy.

The EAT noted that the extensions were to Mr Garcha-Singh’s advantage and pointed out that in December 2018, his main complaint was that the termination date had not been extended further.  As such, it did not agree with his subsequent complaint that it had been unfair to extend the date on previous occasions or that that was a breach of his contract of employment.

The employment tribunal acknowledged the unconventional nature of BA’s approach in setting a termination date and then rescheduling review meetings. However, it pointed out that BA had only given notice of termination to Mr Garcha-Singh a year after he had gone on sick leave. The tribunal concluded that this approach, though unusual, did not render the dismissal unfair, as it provided Mr Garcha-Singh with additional opportunities to return to work.

Significance of reasonable responses

The EAT upheld the tribunal’s decision and stressed that the focus should not solely be on whether the postponement constituted a breach of contract. Rather, the tribunal must ascertain if the employer’s procedure falls within the range of reasonable responses. In this case, it was clear from the tribunal’s findings that the repeated extensions were intended to accommodate Mr Garcha-Singh’s medical conditions and facilitate his potential return to work.

Appeal and contractual breach

Mr Garcha-Singh argued that the absence of a second appeal against the 21 December 2018 decision was a breach of contract, impacting the reasonableness of his dismissal. The EAT, however, rejected this claim. It clarified that according to the Absence Management Policy, the right to appeal was only applicable to the original decision taken on 31 August 2017. Since Mr Garcha-Singh had already been given a full and fair appeal against that decision, the failure to provide a second appeal did not breach the Policy.

Practical implications for employers

  • It is important to adopt a balanced and reasonable approach in employee dismissals related to medical incapacity.
  • Deviations from traditional policies and procedures, as long as they are intended to support the employee and provide additional opportunities for their return to work, may not necessarily render a dismissal unfair.
  • This is an unusual case, and a different outcome might have been reached if Mr Garcha-Singh’s condition had changed between the original decision to dismiss and the ultimate dismissal date which was over a year later.
  • The case also serves as a reminder that it is best practice to ensure policies and procedures are non-contractual, so as to avoid potential breach of contract claims when deviating from the written policy.
Please note that this information is for general guidance only and should not substitute professional legal advice. If you have specific concerns, we recommend consulting with one of our legal experts.


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