Miss J Anderson v BA CityFlyer Ltd — 2019

Miss Anderson was employed by BA CityFlyer Ltd as cabin crew from 5 June 2017 until 20 November 2017. The tribunal had already struck out her ordinary unfair dismissal complaint at a preliminary hearing because she had not been employed for two years, so statutory unfair dismissal fairness did not form part of the final decision. It found that she was a disabled person for the purposes of the Equality Act 2010 by reason of bipolar disorder, which the evidence showed was a long-term mental impairment controlled by medication but likely to deteriorate without it.

The tribunal found that the respondent knew, or could reasonably be expected to know, that the claimant was disabled by July 2017 from the pre-employment occupational health process, medical reports, and repeated discussions about her need for good sleep and fewer night stops. It identified the relevant PCP as requiring crew to be available for at least 3 night stops a week, and found that this placed the claimant at a substantial disadvantage because poor sleep away from home exacerbated her fatigue, anxiety and risk of destabilising her condition. The claimant had repeatedly asked for fewer night stops and had asked for roster changes, but the tribunal found that the respondent did not meaningfully engage with those requests.

The reasonable adjustments claim succeeded. The tribunal held that a roster with a maximum of 2 night stops in a week, and/or minimum night stops, was a reasonable adjustment that would have alleviated the disadvantage. It found that the respondent did not prove that such an adjustment would have been unreasonable or ineffective. The tribunal also found that the claimant was entitled to a remedy for the successful claims, but it did not assess compensation in this judgment and said that a separate remedy hearing would be listed.

On section 15 discrimination arising from disability, the tribunal found that the claimant's fatigue, anxiety, sickness absence, and the decision on 1 September 2017 to do only one sector back to London City Airport were things arising in consequence of disability. It held that those matters, together with the respondent's view that she was unsuitable for a touring airline because of her disability-related requests and absences, were the main reasons for dismissal. It also found that the later reference describing the reason for leaving as 'Dismissal - during probationary period/unsatisfactory work' was partially true but was also based on something arising from disability. The respondent did not establish justification.

The direct discrimination claim under section 13 failed. Although the tribunal found that one manager was dismissive of the claimant's requests, it did not find facts from which it could infer that the dismissal or the reference were because of disability as such, rather than because of the consequences of the claimant's condition. The judgment therefore distinguished the unsuccessful direct discrimination claim from the successful reasonable adjustments and section 15 findings.