Employment Law Cases
Postponement of employee's termination date
An employee was not unfairly dismissed when his employer extended his termination date multiple times to give him a chance to return to work from sickness absence.
Mr Garcha-Singh worked for BA as cabin crew. BA’s attendance management policy was incorporated into his contract. He went on sick leave in August 2016. On 31 August 2017, BA gave him notice to terminate, on grounds of incapacity, with a termination date of 5 January 2018. Thereafter, BA extended his termination date on 7 occasions to accommodate management of his ongoing medical conditions and support his return to work. On 21 December 2018, BA decided not to extend the date of Mr Garcha-Singh’s termination any further and his termination took effect on that day. He brought various tribunal claims, amongst them a claim for unfair dismissal. A tribunal dismissed all his claims and he appealed.
The appeal was dismissed.
Mr Garcha-Singh argued that the extensions to his termination date were a breach of BA’s absence management policy and therefore a breach of his contract. The EAT held that whilst the policy was contractual and did therefore form part of his contract of employment, the fact that the policy did not expressly provide for the extension of a termination decision, did not mean that a decision to extend was a breach of the policy. Even if the decisions to postpone had been a breach of the policy, it did not necessarily follow that this made the dismissal unfair. In determining a case of unfair dismissal, the tribunal must consider whether the procedure fell outside of a range of reasonable responses. Whether a contractual policy has been followed is a factor in this but is not determinative in itself. The purpose of the absence management policy was not to cover every eventuality. It therefore did not prevent a manager from postponing a termination date for the employee’s benefit, as had happened with Mr Garcha-Singh. There was no substantive unfairness to Mr Garcha-Singh and in fact each of the extensions was to his advantage.
Mr Garcha-Singh also argued that that he had not been given the right to appeal against the termination on 21 December 2018 and should have been since the circumstances had changed significantly since his last right to appeal against the decision to terminate his employment. The EAT held that the decision on 21 December 2018 was a decision not to postpone the termination and was not itself a decision to terminate and there was not therefore a need for a right to appeal. On the tribunal’s findings, he had been given a right to appeal which he initiated in July 2018 and which was determined in October 2018.
This is a useful reminder that if policies are incorporated into contracts, then this does give employees the ability to claim breach of contract. All policies of this kind should be expressly stated to be non-contractual and capable of amendment at any time.