Ms Cathryn Hulme v British Airways plc — 2022

The claimant was employed as cabin crew and had fibromyalgia, which the respondent accepted amounted to a disability. She had a history of substantial sickness absence, including earlier disability-related absence and later stress-related absence which was not advanced as a disability. The respondent dismissed her for capability after considering her attendance history, occupational health advice, her return to work, and the prospects of sustained attendance.

On unfair dismissal, the tribunal held that capability was a potentially fair reason and that the respondent was entitled to consider the whole pattern of absence and likely future attendance. It rejected the argument that the absence management policy had been misapplied, found that the review and appeal formed part of a substantially fair process, and concluded that dismissal was within the range of reasonable responses.

On discrimination arising from disability, the tribunal accepted that dismissal was unfavourable treatment and that the claimant's earlier fibromyalgia-related absence had been taken into account, so there was a link for s15 purposes. However, it accepted the respondent's legitimate aim of maintaining and sustaining regular attendance and found that considering all of the claimant's recurring medical conditions and absence history was proportionate. The reasonable adjustments claim was withdrawn and dismissed upon withdrawal.