Is it Unfair to Push Back an Employee’s Termination Date?

After two years of continuous employment, an employee acquires the right to not be unfairly dismissed. For a dismissal to be fair, the employer must show that one of the five potentially fair reasons for dismissal applies, that the employer acted reasonably in dismissing the employee for that reason, and that the employer followed a fair dismissal process.

One of the potentially fair reasons for dismissal is capability. If an employee is unable to perform their role because of long-term illness or physical impairment, then their employer may be able to fairly dismiss them – although the dismissal must also be procedurally fair if the employer wants to fairly dismiss.

In Knightley v Chelsea and Westminster Hospital NHS Foundation Trust, the Employment Appeal Tribunal (EAT) held that the scope of an appeal process, including failing to provide a right of appeal whatsoever, is relevant to determining the procedural fairness of an employee’s dismissal. However, as set out by the Court of Appeal in Westminster City Council v Cabaj, a failure to follow a contractual appeal procedure will not automatically mean that a dismissal is unfair; the key question is whether the employee is denied the opportunity to show that the real for their dismissal was insufficient.

In Garcha-Singh v British Airways plc, Mr Garcha-Singh was employed by BA as cabin crew. In August 2016, he went on sick leave – this continued until 31 August 2017, at which point BA served him notice, informing him that his employment would terminate on 5 January 2018. However, his line manager told him that this was “not set in stone”, and that the termination date was “the date by which he should he aim to return to work”.

Subsequently, Mr Garcha-Singh’s termination date was extended a total of seven times – predominantly to give him extra time to return to work. In July 2018, he raised a grievance regarding the most recent decision to extend his termination date, alleging race and disability discrimination. BA treated this as an appeal against the decision to terminate his employment – this appeal was not upheld.

A final capability review meeting took place on 7 November 2018. Further to an occupational health report, which stated that Mr Garcha-Singh remained unfit to fly, BA confirmed that his termination date would remain 13 December 2018 – as had been previously set by the sixth extension on 12 September 2018. However, his manager confirmed that if there were any changes regarding his health before then, they would review the situation and the termination date.

Although no further health information was provided by Mr Garcha-Singh before 13 December, the termination date was extended one final time to 21 December, to allow for without prejudice discussions to take place. On 21 December 2018, it was confirmed to Mr Garcha-Singh that this was his last day of employment.

BA’s absence management policy (AMP) was contractual and contained a right of appeal against a decision to terminate employment. It did not refer to the possibility of postponing termination dates, as had been the case with Mr Garcha-Singh.

Mr Garcha-Singh brought tribunal claims for wrongful and unfair dismissal and for race and disability discrimination, but these were all dismissed by the Employment Tribunal. He appealed to the EAT in respect of his unfair dismissal claim only, arguing that, by serving him notice of termination before repeatedly extending the termination date, BA had deviated from the AMP and breached his contract of employment, not being actions that a reasonable employer would take. Further, he argued that BA’s failure to grant him a right of appeal in relation to the 21 December decision was also a breach of contract, which affected the reasonableness of the dismissal.

The EAT’s judgment can be split into two sections – one to consider the extensions to the termination date, and one to consider the right of appeal against BA’s final decision.

Extensions to the termination date

The EAT did not consider that the extensions to the termination date amounted to a breach of contract. Although the AMP envisaged a single decision to terminate employment and set out the steps to be taken beforehand, it did not purport to cover all scenarios, nor did it identify all steps that a reasonable manager might take. It would be an extremely limiting interpretation if a manager could only avoid a breach of contract by strictly following what was explicitly set out in the AMP. The manager was therefore not prevented from deciding to postpone the termination date, even though the AMP did not expressly provide for this.

The EAT did say that the position would be different had BA acted in a way which was positively inconsistent or contrary to the AMP – but that was not the case here. In any event, even if there had been a breach of the AMP, the parties had agreed to extend the termination date each time, thereby affirming the contract.

The EAT then went on to say that, even if the postponements to the termination date did amount to a breach of contract, that did not automatically make the dismissal unfair. The question remained whether the procedure adopted by BA was within the reasonable range of responses. It was clear from the evidence that there had been no substantive unfairness towards Mr Garcha-Singh. Each of the extensions had been to allow him a further opportunity to return to work, which was clearly to his advantage. Because of this, the extensions to the termination date did not render the dismissal unfair.

No appeal against final decision to dismiss

The AMP entitled Mr Garcha-Singh to appeal against a decision to terminate his employment. The EAT found that the decision to terminate was taken on 31 August 2017, when notice was originally served. The final decision on 21 December 2018 was a decision not to further postpone the termination date, and was not, in of itself, a decision to terminate employment – there was therefore no right of appeal against this.

Applying Cabaj, the EAT found that Mr Garcha-Singh had not been denied the opportunity to show that the reason for his dismissal was insufficient – he had been granted a right to of appeal in July 2018. Addressing Knightley, the EAT considered that procedural fairness did not require BA to grant Mr Garcha-Singh a second appeal, and that it was open to the Tribunal to find that BA had adopted a procedure that was within the range of reasonable responses.

Ultimately, the EAT rejected the appeal, upholding the Tribunal’s finding that the dismissal was fair.

This is a relatively unusual case, with a unique set of facts. Although the extensions to Mr Garcha-Singh’s termination date did not make the dismissal unfair, there is always a risk when extending a termination date, or making it conditional on set circumstances, that notice will not have been given in accordance with the employee’s contract. As set out in Société Générale, London Branch v Geys, notice must be “clear and unambiguous”. Notice which is expressed to be “not set in stone” or conditional on an employee’s ill health continuing might not meet the Geys requirement. However, this was not an issue before the Tribunal or EAT in this case.

While the lack of a right to a second appeal was not unfair here, employers should be cautious regarding appeals where the termination date is a long time after the initial decision to dismiss. New information and circumstances may arise which might make it appropriate to offer a further right to appeal. This was not the case here, in part because Mr Garcha-Singh’s appeal took place in July 2018, about a year after the decision to dismiss, and only a few months before his eventual termination.

If you need help drafting your sickness absence procedure, or would like advice on managing sickness absence or handling dismissals, please get in touch at [email protected]