Repeated extensions of a dismissal date were ‘unusual but not unfair’: Charles Pigott considers absence management & the band of reasonable responses test
- The Employment Appeal Tribunal has declined to overturn an employment tribunal ruling that repeated extensions of the dismissal date set under a contractual capability procedure was unusual but not unfair.
- It also rejected an argument that this approach—which was not expressly provided for in the procedure—amounted to a breach of contract.
A recent case, Garcha-Singh v British Airways PLC [2023] EAT 97 involved an appeal against an employment tribunal’s decision that setting a dismissal date as part of an absence management process and then extending it on seven separate occasions had not resulted in an unfair dismissal. As part of its assessment of the decision, the Employment Appeal Tribunal (EAT) also considered the relationship between the wording of the procedure and its application in practice.
The capability process
The claimant was a cabin crew member working for British Airways (BA) who was finally dismissed in December 2018, having not flown for more than two years.
