Postponing termination date not unfair dismissal

The Employment Appeal Tribunal (EAT) had to consider whether the repeated postponement of a claimant’s termination date was an unfair dismissal.

The claimant was absent from work due to an illness for a lengthy period and the respondent decided to terminate his contract of employment on 31st August 2017 to take effect on 5th January 2018.

The respondent, however, decided to extend the termination date on a total of seven occasions. The effective date of termination ultimately was 21st December 2018. The termination date was postponed so that further medical information could be obtained and so that the claimant could also receive further medical treatment. Matters culminated in the respondent attempting to arrange an occupational health assessment with the claimant who was unwilling to participate. Consequently, the respondent wrote to the claimant to state that as it was not possible to assess his fitness for a return to flying duties, the termination date would not be postponed any further.

The claimant brought a claim of unfair dismissal to the Employment Tribunal, but he was unsuccessful. The ET found that on 21st December 2018 there was very little to suggest that the claimant was able and willing to return to his role. The ET were satisfied that the respondent had reasonable grounds for its belief in the claimant’s incapacity. They found that the claimant’s absence affected the respondent’s staffing levels and that after two years of absence the impact would have been significant. The ET found that they were satisfied that the decision to dismiss was within the band of reasonable responses and therefore the dismissal was found to be fair.

The claimant appealed to the EAT citing that the ET failed to recognise that the respondent’s actions were not in accordance with their Absence Management Policy (AMP). The claimant argued that the ET should have asked itself whether a reasonable employer would have consistently amended the termination date which, it was alleged, was in breach of the AMP.

The EAT found that there was no breach of the AMP as it did not stop a manager from postponing the termination date. The EAT also found that it was clear from the ET judgment that there was no substantive unfairness to the claimant as each of the postponements were to his advantage. The claimant’s appeal against the ET finding therefore failed.

Whilst it should be very rare that a termination date is postponed, this case is a useful reminder of the key points to follow before dismissing an employee who has been on long term sickness absence. These include ascertaining the employee’s medical position, consulting with the employee, considering the availability of alternative employment, and considering how long it is reasonable for the employer to wait. A fair procedure taking into account any relevant policies should also be followed.