Mr Guest, the Claimant, was a pilot for FlyBe. He operated as a first officer and had worked for FlyBe for a period of just less than 10 years. In 2014, he completed training which he had asked to do in order to fly an Embraer jet, leaving his old plane behind. On a flight to Florence, he suddenly felt sick and dizzy. It occurred to him that this was airsickness, which he was embarrassed about. However, situations kept arising – on his drive to a flight later that year he was driving to the airport and ‘had a feeling of impending doom’ and so he called in sick.
The Claimant had further periods of anxiety over the coming months and his GP described the situation as ‘an increasing phobia and anxiety about long-distance flights and being trapped on the aeroplane’. As such, his medical certificate, required to fly, was temporarily suspended while the Claimant sought help.
Following some behavioural cognitive therapy sessions, the medical certificate was reinstated but the same issues began to crop up again and he was forced to sign off as sick for a second period. All therapy received by Mr Guest came to the same conclusion – he needed shorter flights in order to return to work. Nevertheless, the doubt remained and there was worry about whether his condition could deteriorate in any event.
The HR advisor and the Claimant’s line manager took the report on board and were prepared to allow Mr Guest to return to work. However, the report soon came to the Chief Operating Officer’s attention. He set up a meeting to determine whether Mr Guest could return to work, unbeknownst to the Claimant. Further medical reports were obtained by FlyBe, but Mr Guest was nonetheless invited to a disciplinary meeting. The COO was not chairing the hearing, but made it clear to the disciplinary officer that the Claimant should be dismissed because the airline could not afford to take the risk of having a pilot afraid of flying. The Claimant was dismissed.
At the Employment Tribunal, FlyBe was found to have one of the 5 potentially fair reasons to dismiss – namely, capability. However, they had not followed a fair procedure in any way, shape or form. The relevant decision maker was the COO, and not the disciplinary officer. Because Mr Guest never even met the COO, he was never able to address the relevant decision maker to put his case forward for why he should not have been dismissed. To further compound the matter, the COO had made his decision having not seen the latest medical evidence or reports which suggested that the Claimant could have flown some shorter flights. Finally, the appeal officer directly reported to the COO and was part of the meeting discussing the Claimant’s inability to fly and so was not impartial.
It should be noted that the Tribunal found that, if a fair procedure had been followed, there was a high chance that Mr Guest would have been fairly dismissed.
What does this mean for you or your business, and what should you be doing now?
This case strongly reiterates that, regardless of whether the reasoning behind the dismissal is fair, the process taken is absolutely fundamental.
In particular, decisions should be unbiased and should be the decision of the actual disciplinary officer. The employee needs to be able to put their case to the person making their decision, and the decision maker must then make a fair decision based on the evidence available to them. When going through a disciplinary process, ensure that the disciplinary officer has the relevant information and is not influenced by outside sources, such as their superiors or HR. Finally, the appeal officer must be independent and cannot have been involved without questioning the integrity of the process.
The full judgement from the Employment Tribunal can be read HERE.
These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.