A former airport logistics agent for British Airways who was dismissed after an illness affecting his eyes, has won an unfair dismissal claim at an employment tribunal and been awarded more than £19,000.
Mohinda Sandha worked for BA from 29 May 1995 until his dismissal on 10 March 2016. His role included driving duties in the vicinity of aircraft. He was dismissed due to his inability to carry out his role after suffering back, knee and eye injuries.
Judge Bloch told the Watford Employment Tribunal, on 5 and 6 December 2017, that BA did not give Sandha “fair or proper warning” that he may be dismissed, and did not not act reasonably in treating incapacity as sufficient reason for his dismissal within the meaning of the Employment Rights Act 1996.
Following a knee and back injury, which occured while he was at work in December 2014, Sandha was signed off until 15 January 2015. BA’s performance manager at the time, Ms Scheider, sent him a letter that day informing him of a proposed meeting on 26 January 2015 to discuss his sickness absence.
In the letter, Scheider said BA would support him back to work within a “reasonable” period, and may consider termination of his employment “as a last resort.”
On 4 February, BA’s occupational health service advised BA that Sandha was fit to return to work from 17 February 2015.
Following his return, another review meeting took place on 13 April, the outcome of which was that Sandha would remain at work.
Management of Sandha’s absence was then transferred to people services manager Ms Dhaliwal around July 2015. There was no review meeting, possibly due to Sandha’s absence abroad and the fact the case had transferred to Ms Dhaliwal.
Sandha subsequently developed an eye infection after returning from holiday, which meant he was unable to conduct driving duties that were part of his role. He was signed off sick on 20 October 2015, and was referred to occupational health that same day.
In a further conversation with Dhaliwal on 12 November 2015, he said that one of his eyes was “blurry”. During a telephone examination with occupational health adviser Maddie Davidson, Sandha said he did not feel he could drive at night due to experiencing glare. Davidson, however, concluded he was fit to return with no adjustments.
Sandha saw a doctor at Moorfields Eye Hospital, who confirmed through a letter dated 24 November 2015 that it was legal for him to drive and safe for him to return to work as long as he avoided night driving until the glare ceased. There was an issue as to when that letter was first given to the respondent.
He drove to work in the dark that same day, but when he was almost involved in an accident, he informed management and left work.
Another review meeting took place between Dhaliwal and Sandha, and his trade union representative Ian Tiller, on 17 December 2015. Sandha was not informed that dismissal was a possible result of this meeting and Tiller had emphasised that BA could look for alternative duties for Sandha.
Tiller stated that the claimant needed to go back to occupational health if he was struggling to drive in the dark. He added that cargo agents could work anywhere. When Ms Dhaliwal asked whether the claimant was able to work, he said it was a struggle.
Sandha’s dismissal was confirmed by a letter from Dhaliwal on 23 December 201 which stated that he had taken 106 sick days since 2010. The letter included the statement: “Given that [occupational health] declared you fit for all duties, 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.”
Sandha appealed the decision to dismiss him. An appeal meeting was held on 1 March 2016, presided over by BA’s World Cargo department general manager Matthew Burton.
Before the appeal meeting, Tiller submitted to BA Sandha’s medical certificate. This said he could return to work if he could be taken off driving duties. Dhaliwal asked why Sandha had not mentioned it previously, to which he said he did not think to do so.
Burton dismissed the appeal because Sandha’s absence record was “unacceptable and unsustainable.”
Sandha submitted his claim to the tribunal on 27 July 2016. Following the tribunal hearing in December 2017, employment tribunal judge Bloch allowed Sandha’s unfair dismissal claim, saying it was “wholly insufficient” for BA to rely on the references to dismissal in the earlier meetings, when it had not warned him at the later meeting.
“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 [...]. However, the respondent did not act reasonably in treating that reason as a sufficient reason for dismissal,” said Judge Bloch.
There was also found to be “no proper consideration” of the possibility of Sandha only driving during daylight, or assuming alternative duties. “This was the ‘elephant in the room’, with both Dhaliwal and Burton seeming to ignore it.”
The Judge said that the respondent had a “closed mind” and BA’s belief that the claimant was fit to work because he had seen an eye specialist was unreasonable.
Bloch added that Sandha’s actions showed significant culpability, including the delay in disclosing the medical certificate and the hospital letter, and his “resistance” towards alternative duties.
Sandha was awarded £19,074.88, composed of a £10,687.50 basic award, compensatory award of £17,510.50, and £400 for his loss of statutory rights - subject to a 33 per cent deduction because of Sandha’s own conduct.
Rachel Harfield, employment team leader at Slater and Gordon, told People Management the case was a stark reminder to employers to fulfill their duty to make reasonable adjustments for employees who are unwell.
She said it showed the importance of “fully considering whether an employee can be given adjusted duties or alternative duties” as an alternative to dismissal.
Allison Whiston, head of employment and commercial at DAS Law, said employers must know the company’s absence 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 British Airways spokesperson said: “We are disappointed with the decision and believe we have acted reasonably throughout. We are considering whether an appeal is appropriate.”