United Kingdom Employment Appeal Tribunal

The Facts of the Case

“3.1 As stated the Claimant commenced her employment with BMED in 1999. On 1 April 2003 she was promoted to assistant purser and on 16 April 2004 she was promoted to purser (flight supervisor).

3.2 In April 2006 the Claimant was in Kazakstan due to work on an in-born flight to London the following day.  She slipped on some stairs and was told she had damaged ligaments.  One month later her knee was extremely sore and the Claimant could not bend it.  She had physiotherapy treatment.  She felt pain after prolonged standing and was signed off by her General Practitioner for 4 weeks.  She was advised by her GP she should not carry out flight duties because of the difficulties she had in walking and climbing stairs.  The Claimant was placed by BMED into an administrative role which allowed her to sit for part of the day and move around when necessary.

3.3 BMI acquired BMED in February 2007 and the integration following the acquisition took some time.  At the end of October 2007 BMED ceased to exist as an operating entity and was merged into BMI.  The Claimant formally became an employee of BMI on 1 November 2007.

3.4 The Claimant stated that Mr Thomas in a one to one meeting on 31 July 2007 said that she was not going to be offered administrative duties because it was BMI policy only to place flight staff in administrative roles in instances of pregnancy.  The Claimant was placed on long-term sick leave.

3.5 On 26 February 2008 the Respondent conducted a meeting under its Attendance Management Process (AMP) (D40-47) which was instituted at stage 2 between Mr Andy McCann, senior crew manager; Mrs Spruin-Freeborn (Mrs SF) as note taker and the Claimant.  Mrs SF was aware of the injury to the Claimant’s knee and that she had been signed off work until 12 March 2008.  As there was no sign of a return to work she decided further medical information was required regarding the Claimant’s injury and prognosis.  The Claimant signed a medical consent form and a report was requested by Dr Call Limited the Respondent’s Occupational Health Service provider.  The report (D185) indicated that the Claimant might have a crush-type injury to the cartilage was troubled by a sharp anterior knee pain following prolonged sitting, standing and walking quickly upstairs.  It said that she felt unable to continue duties as cabin crew.  It was stated that if there was no further improvement the Claimant should be seen again by Orthopedics who had discussed the possibility of keyhole surgery.

3.6 On 8 April 2008 there was a second AMP with Mrs SF and a personnel officer Amy Doherty.  At that meeting the option of her working on the ground was discussed and it had been explained to the Claimant that the Respondent did not have the capacity to create a long‑term administrative role for the Claimant.

3.7 A third AMP took place on 9 June 2008 with the same parties.  The possibility of the Claimant’s role being terminated on grounds of capability was discussed as were review of other permanent roles that were available to try and retain the Claimant.  It was agreed that Claimant would be sent copies of internal vacancies.  They were in fact also available on the Intranet.

3.8 A fourth AMP took place on 5 August 2008 with Mrs SF, Navroop Dogra personnel officer and the Claimant which had been scheduled to take place after the Claimant had seen her Physiotherapist and Consultant in July.  Under the Respondent’s sick pay scheme the Claimant was entitled to 52 weeks on full-pay while absent sick.  It was explained by Mrs SF that the Claimant had only 81 days of sick pay remaining and that also by September she would be in the final stage of the Respondent’s AMP.

3.9 A fifth AMP took place on 8 September 2008 between the same parties.  The Claimant indicated she was interested in ticketing and reservation positions.  However the Respondent’s head office was in the East Midlands and such positions in Mrs SF’s view were not realistic for the Claimant.  She was aware that the Claimant wanted to take on one of the roles on the ticket desk at London Heathrow but there were only 22 of those roles and there were no vacancies at that juncture.

3.10 A further medical report was commissioned from Dr Call Limited on 22 September 2008. This stated that she was suffering from intermittent pain in the right knee when standing or sitting for long periods of time or if she was walking long distances (D215-216).  It also said that the Claimant would be able to work in an office based administrative role if available but that she should avoid manual handling duties or positions where she is expected to stand for a long period of time.

3.11 A sixth AMP at stage 4 took place on 15 October 2008 with again the same parties.  Mrs SF said that the only potentially suitable role for the Claimant was that of customer services agent and she gave the Claimant a copy of the job description.”

“3.11 The Claimant said she didn’t wish to apply as she did not think it was suitable.  She referred to the fact that she had undertaken a similar role for another airline and this involved walking customers to and from departure gates.

3.12 On 24 October 2008 the Claimant’s sick pay ended after 52 weeks.

3.13 On 28 October 2008 the Claimant submitted a grievance (D264-265) regarding her treatment in relation to her absence from work due to sickness.  She said that she was disappointed that her employment would be terminated on grounds of capability.  It had been explained to her at the last AMP by Mrs SF that the Respondent could not allow the Claimant to remain on sickness absence for an unlimited time.  They were unable to recruit a permanent replacement while the Claimant was off on sick leave.

3.14 A seventh AMP took place on 17 November 2008.  The Respondent stated that they were unable to allow the Claimant to carry out ground duties and in particular ticketing.  This would involve intensive training.  Mrs SF said to the Claimant that as she was not capable of fulfilling her duties as a flight supervisor and there were no alternative positions for her, her contract was to be terminated on grounds of capability and she would be given 3 months pay in lieu of notice.  This was confirmed to the Claimant in writing on 20 November 2008 (D304-305) and she was apprised of her right of appeal.

3.15 The Claimant elected to appeal by letter of 24 November 2008.  The appeal was heard on 16 January 2008 and rejected by Sharon Campbell, Senior Cabin Crew Manager, by letter of 22 January 2009.  The Claimant was almost apprised that she had one final right of appeal.”

“3.16 In relation to her grievance Mr McCann senior cabin crew manager wrote to the Claimant on 24 December rejecting her grievance because he considered there was no substantive evidence of a failure on the part of BMI in their duty of care to her during her absence on sickness (D314) […]”

The remainder of the fact-finding relates to further appeals to which it is not necessary to refer.

The Employment Tribunal Conclusions

“5.1 We turn first to the claim under DDA.  The Claimant complains of discrimination by the Respondent for failing to comply with her duty to make adjustments under Section 4A DDA.

5.2 We agree with the submissions of counsel for the Claimant that the provision criterion or practice (PCP) and that the disadvantage to the Claimant was the requirement to be physically capable of doing her job as cabin crew and if she was unable to fulfil that criterion there was a liability of dismissal. We agree also with the submission that in the case of Fareham College Corporation v Walters it was not always necessary to identify non-disabled comparators, although in this case it is straightforward to discern who the comparator would be. This would be other employees of the Respondent who were able to attend work and carry out the essential tasks required of their job description and who were not liable to be dismissed.

5.3 What was abundantly clear to the Tribunal is that the management of the Respondent gave no consideration whatsoever to the Claimant's physical problems and whether she might have a disability within the ambit of DDA. The question of any disability of the Claimant was not on the Respondent's radar. It was put to Mrs SF that she had not accepted that the Claimant was disabled and she agreed. The Respondent's mindset was that the Claimant was not disabled and accordingly did not turn their attention to their special responsibilities to a disabled employee such as the Claimant. They merely treated her as an employee who was on long-term sick. It was this mindset that prevented the Claimant's line manager Mrs SF making any real or proactive effort to pursue alternative employments for the Claimant. Their rule was that cabin crew who were sick had to return when fit again to their normal duties. But the Claimant was a disabled person and the Respondent had particular duties towards her in that respect.

5.4 No. effort was given to even discussing possible alternative roles for the Claimant until the third AMP on 9 June 2008 when the Respondent commenced to send internal vacancies to the Claimant. That is over 7 months from the time the Claimant was placed on long-tem sick leave at the end of October 2007.

5.5 The Respondent's management approach to their perception of the Claimant's long-term sickness was just as casual. The Claimant formally became an employee of the Respondent in October 2007 following the integration of the acquisition and was placed on long-term sick leave on 27 October 2007. The only commissioned report from the Claimant's GP was 4 months later and his report is at document 185 dated 4 March 2008. It then took the Respondent a further 6 months to obtain a report from its own occupational health advisors Dr Call (D13). There was some dispute at the hearing as to whether the initial referral to the company doctor should have been made at AMP stage 3 but whatever the interpretation of the Respondent's procedures we consider nothing particularly turned on this dimension.

5.6 The Respondent's stance in respect of cabin crew is that they did not want them performing administrative duties. They were either sick and not capable of work or fit and capable of doing the cabin crew jobs. The only exception the Respondent made to this was pregnant cabin crew who naturally because of legislation in that area could not be dismissed when they were unable to fly or even physically able to fly but not able so to do because of the risk to the foetus.

5.7 The Claimant says that she would have undertaken the temporary roles that emerged in February 2008 of two administrative business support roles part-time.  We do not accept that because we cannot contemplate the Claimant would have forsaken the cabin role which she did state she loved and that came over to the Tribunal as a genuine response. We don't accept her counsel's submission that that was an exaggeration borne out of being pressed in cross-examination. The Claimant had the benefit of a very generous 52 week full pay while off sick and we do not think she would have left the job she loved and furthermore lost the valuable facility of full sick pay when her medical prognosis was not clear. There was also a full-time vacancy which was subsequently withdrawn (D501).

5.8 The Claimant's doctor said that enabling the Claimant to continue office duties would help to support her recovery (D185). In all this time Mrs SF came up with one potential alternative job for the Claimant which was Customer Services Agent. This was at the sixth AMP stage 4 on 15 October 2008. It was noticeable she had made no analysis of possible adjustments prior to making the offer. The Claimant had her reservations regarding the job but instead of seeking to assuage these reservations or making suggestions for amending the duties somewhat Mrs SF seemed to be only too anxious to confirm the Claimant's reservations (D221-224) stating that if she was stationed on the self-checking machine she would have to stand for 3 hours and there was no guaranteed break and that she would have to walk to and from the departure gates. The manager's approach demonstrated that adjustments to roles to accommodate the Claimant was not within their consideration.

5.9 Because of the Claimant's medical condition, the reports they had received and the fact the Claimant had been off work for so long should have indicated to any company, especially a large company with an HR Department that the dimension of the employee being disabled within the ambit of DDA had to be looked into. Whilst the Respondent might have buried its head in the sand in our view it cannot account for its duty to make adjustments by stating they were not aware of the Claimant's disability. All the facts before them should have clearly pointed to the fact that the Claimant was physically incapacitated within the meaning of Section 1 and schedule 1 DDA.

5.10 The Respondent is a large organisation with a much larger administrative function than her former employers BMED. Section 18B(1) DDA says that in compliance with the duty to make reasonable adjustments regard should be had to the extent which taking a step would prevent the effect in relation to which the duty is imposed. The Claimant could have been deployed into an administrative role which would have prevented the disadvantage to her of being at risk of dismissal. We agree with counsel that Mrs SF did not commence considering other vacancies or alternative positions until 8 September as opposed to her witness statement when she said it was from 5 August 2008. The notes of the meeting of 8 September (D209) state that she could certainly look at vacancies and told the Claimant to send her or email her CV (D209). The customer service role she did come up with on 15 October 2008 was not particularly suitable unless the Respondent's were prepared to adjust the duties. It is already stated that Mrs SF was keen to highlight the difficulties in the role.

5.11 Far from considering its duties to the Claimant to make adjustments it stuck to its policy of not redeploying cabin crew into administrative roles and made scant effort to identify suitable vacancies.

5.12 Section 18B(2) sets out examples of what might be needed to comply with the duty to make reasonable adjustments, including the transferring of an employee to fill an existing vacancy. The Respondent did absolutely nothing from November 2007 until June 2008.

5.13 The Respondent was not prepared to look at a ticketing role for the Claimant on the basis that she had not worked as a customer service agent. But the Claimant had that experience prior to working for BMED.  The Respondent gave evidence that the Claimant would not have been conversant with its procedures. However this issue could have been resolved with relative ease by appropriate training. The Claimant presented to us as an intelligent and flexible individual. The Respondent had the resources as it was a large employer of 4,600 staff, 2000 of whom were based at Heathrow. It also did not consider administrative roles for the Claimant at its head office in Donnington, assuming that the Claimant would not wish to move. But such a possibility was not explored with her.

5.14 Pausing here we do accept the submission of counsel for the Respondent contrary to what was put by the Claimant's counsel who stated that a failure to offer alternative employment was a PCP. We agree with Ms Belgrove that this is merely an action taken or an inaction as opposed to a policy being put in place.

5.15 It is manifest to the Tribunal that the Respondent did not consider its duty to make reasonable adjustments in respect of the Claimant's employment because it viewed her as a long-term sick employee as opposed to an employee with a disability and treated her accordingly. It was very belatedly that it looked at alternative roles and came up with very little. It didn't even take advice from its Occupational Health Department as to the possibility of the Claimant taking on the customer services agent's role or indeed pursuing what adjustments or variations to that role could be made so that the Claimant could undertake it. Its mindset was that the Claimant was sick, could not do her cabin crew duties and should be put on a capability process. Indeed not long after her entitlement to full sick pay ended on 24 October 2008 the Claimant was dismissed within less than a month.

5.16 In the Tribunal's clear view not only did the Respondent fail to comply with its duty under Section 4A, by its actions in respect of the Claimant it never really took them on board. Accordingly this head of her claim succeeds.”

The Law

"Employers: duty to make adjustments

“(2) In subsection (1), "the disabled person concerned" means - 

(a) in the case of a provision, criterion or practice for determining to whom employment should be offered, any disabled person who is, or has notified the employer that he may be, an applicant for that employment;

(b) in any other case, a disabled person who is - 

(i) an applicant for the employment concerned, or

(ii) an employee of the employer concerned.”

“(3) Nothing in this section imposes any duty on an employer in relation to a disabled person if the employer does not know, and could not reasonably be expected to know - 

(a) in the case of an applicant or potential applicant, that the disabled person concerned is, or may be, an applicant for the employment; or

(b) in any case, that that person has a disability and is likely to be affected in the way mentioned in subsection (1).”

“For the purposes of a duty to make reasonable adjustments, where under any binding obligation a person is required to obtain the consent of another person to any alteration of the premises.”

It then goes on to deal with that, which is not relevant to this case.  That is, I think, all I need to refer to save to the Disability Rights Commission Code of Practice Employment and Occupation 2004.

The Grounds of Appeal

Ground 1

Decision

Ground 2

Conclusion