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Dismissal of pilot with anxiety-related sickness absences held to be procedurally unfair

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In Matthew Guest v. Flybe Limited, the Birmingham Employment Tribunal considered whether the dismissal of a pilot who had various anxiety-related sickness absences was fair and found that it was not.

Mr Guest was employed under a pilot’s contract as a First Officer and was promoted to fly a jet aircraft (the Embraer). Shortly after he had completed his training to fly the Embraer, he had a turn whilst flying where he felt sick and dizzy. He continued to suffer from symptoms of air sickness and anxiety on subsequent flights which caused him to have several anxiety-related sickness spells. He was seen by various medical experts who concluded that he was fit to return to work with the caveat that it would have to be seen whether his symptoms returned once he was back on board. He was ultimately dismissed on the ground that his anxiety posed a risk to flight safety. He appealed but the decision was upheld. Mr Guest was offered redeployment in a ground-based role in Exeter in the alternative, but Mr Guest declined this offer. He made a claim for unfair dismissal and succeeded. The Tribunal, however, considered that even if Flybe had conducted a fair process, there was a two thirds chance that they would have dismissed Mr Guest anyway and therefore concluded that any subsequent award of compensation made to Mr Guest should be reduced accordingly.

In order to determine whether a dismissal is fair, a tribunal will consider two questions: (1) whether the employer had a potentially fair reason for dismissal (there are five including: conduct, capability, redundancy, statutory restriction and some other substantial reason); and (2) whether it acted reasonably in dismissing the employee (which will include following a fair procedure). The tribunal must not substitute its view for that of the employer but simply determine whether the dismissal was within the band of reasonable responses of a reasonable employer.

In considering the first question, the Tribunal concluded that Flybe had dismissed Mr Guest because it believed that his anxiety posed a risk to flight safety and that this fell within the potentially fair reason for dismissal of “capability”. Flybe had therefore discharged its burden to show a potentially fair reason for dismissal.

In considering the second question, the Tribunal noted that it would have to “tread carefully” because questions relating to airline safety had potentially enormous consequences and Flybe had much more expertise than the Tribunal in such matters. The Tribunal would therefore need to be particularly careful in determining that the dismissal was beyond the range of reasonable responses of a reasonable employer.

The Tribunal nevertheless went on to hold that the process was not fair for various reasons, including:

• the disciplinary officer, who was in charge of deciding Mr Guest’s fate (the Ostensible Decision Maker) had been sent an email (the Email) from a much more senior individual (the Real Decision Maker) saying that, whilst Mr Guest would not fly again, he could be offered a ground-based role if one was available. He was therefore influenced by the Real Decision Maker in making the decision to dismiss;

• Mr Guest did not have the chance to address the Real Decision Maker because he was not aware of his involvement in the decision-making process;

• the Real Decision Maker made the decision to dismiss without having reviewed all the relevant medical evidence;

• the appeal was heard by someone who had previous involvement in the process, had been copied in to the Email, reported to the Real Decision Maker and so was aware of the Real Decision Maker’s instruction.

Comment

Flight safety is clearly of utmost importance and getting this wrong could have horrendous consequences. However, no matter the validity of the reasoning behind a dismissal, the case shows that dismissals must be conducted in a fair and transparent manner. It serves as a reminder that the officers responsible for each stage of the disciplinary process must be independent and, where possible, of increasing seniority at each level.