Claimant v British Airways plc — 2019

The tribunal found that the respondent knew, or ought to have known, from 1 February 2016 that the claimant was disabled by reason of low mood, anxiety symptoms, depression and panic attacks. It rejected all allegations of direct disability discrimination, finding that the relevant managers would not have treated a hypothetical non-disabled comparator differently in the matters alleged.

The tribunal found discrimination arising from disability in the issuing of a written warning on 12 April 2016 and the dismissal on 16 June 2016. Those acts were because of the claimant's disability-related inability to attend work, and the respondent did not show that they were proportionate means of achieving its legitimate aim. The tribunal also found that the respondent failed to make reasonable adjustments during the claimant's phased return, particularly after the GP's recommendation that she work three days a week and shorter hours.

The harassment complaint succeeded in part. The tribunal found that dismissing the claimant, failing appropriately to assess her disability, continuing direct contact after being told by her consultant psychiatrist that she was not up to receiving calls, keeping her under notice after the appeal, and criticising her lack of engagement in the appeal outcome letter amounted to harassment related to disability. Other alleged acts, including alleged rude or aggressive conduct, the handling of the 10 October meeting, and contact about return-to-work arrangements, were not upheld.

For unfair dismissal, the tribunal held that the claimant was dismissed under section 95(2) ERA 1996 and that capability was a potentially fair reason, but the respondent acted outside the range of reasonable responses by dismissing before receiving the occupational health report and then failing to reinstate unconditionally when that report said she was fit to return with a temporary restriction. In the alternative, the tribunal found that the respondent's conduct amounted to a repudiatory breach of the implied term of trust and confidence, that the claimant resigned at least partly in response to it, and that she had not affirmed the contract.

The tribunal rejected reductions for contributory conduct and Polkey, and declined to increase compensation for breach of the ACAS Code. Remedy was left to be determined at a later hearing.