In person For the v Respondent — 2022

By the time of the 2022 liability hearing, the race discrimination and unpaid wages complaints had already been withdrawn and dismissed on withdrawal. The live claims were unfair dismissal under section 98 ERA 1996, automatic unfair dismissal for protected disclosures under section 103A ERA 1996, disability discrimination under sections 13, 15 and 19 of the Equality Act 2010, and harassment under section 26.

The tribunal permitted the respondent to resile from its earlier concession that the claimant was disabled and found that she was not disabled at the material times. It held that the depression recorded in 2010 had been triggered by a bereavement that had long since ceased to affect her, that the later 2019 low mood was not shown to be long-term, and that PTSD was not diagnosed until 26 March 2019 and was based largely on the claimant's own account. The tribunal also found that, even if she had been disabled, British Airways did not know and could not reasonably have been expected to know of such a disability before 28 March 2019.

The tribunal found that the claimant was dismissed for capability, namely her attendance record under the respondent's absence management process, and not because she had made protected disclosures. It accepted that the respondent had applied its EG300/EN300 absence procedures and held that the dismissal decision, and the later appeal outcome, were within the range of reasonable responses of a reasonable employer. The automatic unfair dismissal claim therefore failed.

The section 15 claim failed because the claimant was not disabled within the meaning of the Act at the material time. The section 13 direct discrimination claim failed because the tribunal saw no evidence that Ms Gabriel or Mr Devlin treated the claimant less favourably because of disability. The section 19 indirect discrimination claim failed for the same fundamental reason, and the tribunal said it added nothing to the section 15 complaint. The section 26 harassment claim failed because the tribunal found no evidence of unwanted conduct related to disability and no conduct meeting the statutory purpose or effect.

The tribunal also rejected the claimant's request to extend time for the earlier Equality Act complaints. It noted that she knew about disability discrimination law, had union support throughout, and repeatedly referred to the Equality Act during the process. It therefore dismissed all remaining claims and made no monetary award.