An employment tribunal hearing recently took place in Watford, UK, when Mohinda Sangha, an airport logistics agent, accused British Airways of unfair dismissal.
The judgment favoured Mr Sangha and awarded him over £19,000 in compensation – taking into account a deduction of 33.33% in respect of the claimant’s own conduct.
Mr Sangha had been employed by British Airways between May 1995 and his dismissal in March 2016. His duties included driving in the vicinity of aircraft.
Whilst at work on 9 December 2014, Mr Sangha suffered a knee and back injury, which resulted in him being signed off work until 15 January 2015. He was sent a letter that day, from his performance manager, informing him that a meeting would take place on 26 January 2015 to discuss his sickness absence. The letter also stated his performance manager would support his return to work within a reasonable period and that his termination may be considered as a last resort.
If an employee’s absence, or inability to carry out their duties to the required standard, is likely to be long-term, their line manager will seek health advice from British Airways Health Services (BAHS) asking for an informed opinion on the employee’s ability to do their job to a reasonable standard in the foreseeable future. If BAHS advises that they will not – due to medical incapacity – they may advise on whether an employee would be able to do an alternative job.
On 4 February 2015, BAHS stated that Mr Sangha would be fit to resume work from 17 February 2015 – which he did – and at a review on 13 April it was agreed that Mr Sangha would remain at work. Following this, he was informed in writing that his performance would continue to be managed and reviewed in three months or before, if necessary.
Around July 2015, management of Mr Sangha’s performance was transferred to a different person who was not as experienced as the previous performance manager and the three-month review did not take place.
Around this time, Mr Sangha went on holiday and on his return he developed an eye infection affecting his ability to drive. He was signed off sick on 20 October 2015 and he was referred to BAHS.
In November 2015 Mr Sangha had a conversation with his performance manager during which he told her that his eye was blurry and during another conversation with an occupational health advisor, he said that he could not drive at night due to experiencing glare. She, however, decided he was fit to return without adjustments.
Mr Sangha was seen at Moorfields Eye Hospital who confirmed that he was fit to drive but should avoid night driving until the problem of the glare had ceased. However, there was a question over when he received that letter.
Following his conversation with the occupational health advisor he drove to work that day - in the dark - but was involved in an accident and having informed management, he left work.
In December 2015 another review took place between Mr Sangha and his performance manager, where Mr Sangha eventually produced a certificate stating that he was fit to resume work provided he was taken off driving duties, but his performance manager stated that she had already told him that he was being dismissed and the certificate was only produced after that decision. This meeting was attended by a union representative.
The dismissal was confirmed by letter to Mr Sangha on 23 December 2015 and included the statement:
“Given that BAHS have declared you fully fit for all duties on 20 November 2015 yet you have remained off sick I do not believe there are any changes that could be made that would significantly improve your attendance in either your current job or a different role within the company.”
It also stated that his sickness days since 2010 amounted to 106.
Mr Sangha appealed against the decision to dismiss him and the appeal was heard by BA general manager for World Cargo. Before attending the appeal, Mr Sangha’s union representative submitted a medical certificate stating that he could return to work if taken off driving duties. When asked why this had not been submitted previously, Mr Sangha said that he had not thought to do so. The appeal was dismissed as it was claimed that Mr Sangha’s record was “unacceptable and unsustainable.”
Mr Sangha submitted his claim to the tribunal and it was heard in December 2017 before employment Judge Bloch, QC. The judge allowed the unfair dismissal claim stating:
“I concluded that whilst conduct and capability were running in parallel as reasons for the dismissal in this case, the respondent has shown that the principal reason for the dismissal was capability. He added:
“However, the respondent did not act reasonably in treating that reason as a sufficient reason for dismissal.”
Allison Whiston – Head of Employment and Commercial Law at DAS Law commented that employers must know the company’s management policy and how it operates. She said:
“Employers should confirm they follow procedure carefully and, before any decision to dismiss for capability, check that they have considered all medical evidence, whether any reasonable adjustments can be made to enable the employee to return to the workplace, and whether there are any alternatives before making any decision to dismiss. Dismissal should always be the last resort.”
A spokesperson for British Airways said:
“We are disappointed with the decision and believe we have acted reasonably throughout. We are considering whether an appeal is appropriate.”
