Was it unfair for an airline to sack a pilot who had a fear of flying that left him suffering panic attacks?
It was on the facts of the following case.
In that case, the Claimant was an experienced pilot working for Flybe. He began to suffer symptoms of anxiety in late 2014 and in February 2015, before a flight to Iceland, suffered an attack of anxiety and called the airline to say that he did not feel well enough to fly. He visited his GP who wrote to the airline that the Claimant “has developed an increasing phobia and anxiety about long-distance flights and being trapped on the aeroplane.” After a course of CBT, the Claimant returned to flying in April 2015 but in July, shortly before take-off, he began to feel shaky and to hyperventilate. He told his senior pilot that he could not go ahead with the flight, and he was de-planed. He returned to work briefly in April 2016 but in June suffered a panic attack when he learned that he was scheduled to fly to Kefalonia and called in sick. He did not return to work again.
One medical expert expressed concerns that the Claimant’s condition was a “significant worry” and made him unfit to pilot a plane although other medical reports suggested that the Claimant might be able to resume flying, subject to passing medical flight tests. Instead of exploring this, Flybe invited the Claimant to a disciplinary meeting chaired by a manager who sought advice from the Chief Operating Officer who made it clear in an email that the Claimant should be dismissed on safety grounds as the airline was not in the business of “taking risks”.
The manager advised the Claimant of “his” decision that the Claimant was to be dismissed and the Claimant appealed.
The appeal was heard by someone who had been copied into the email discussion about the Claimant’s fitness to fly and the appeal was dismissed.
The Claimant brought a claim for unfair dismissal in the employment tribunal.
The ET accepted that Flybe had dismissed the Claimant because it genuinely believed that his anxiety posed a risk to flight safety and that this fell within the potentially fair reason for dismissal of “capability”. The ET nevertheless went on to hold that the process was unfair for various reasons, including:
- the disciplinary meeting manager, who was the ostensible decision maker, had received an email from a more senior individual (‘the real decision maker’) stating that the Claimant could not be allowed to fly again. He was therefore influenced in making the decision to dismiss;
- the Claimant 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 previously been involved in the process, had been copied into the real decision maker’s email, reported to him and so was aware of his strong view.
These reasons rendered the Claimant’s dismissal unfair. However, the ET also decided that, if Flybe had followed the correct procedure, there was a two thirds chance they would have sacked the Claimant fairly and therefore the Claimant’s compensation for unfair dismissal should be reduced to reflect that chance.
The ruling in this case underlines that, even in obvious cases, in order to satisfy the requirement to act reasonably, an employer must follow a fair procedure when dismissing an employee on capability grounds and, if it reaches a decision to dismiss without considering all the evidence, or if the ostensible decision maker is influenced by someone else within the organisation, the decision to dismiss is likely to be unfair.
Guest v Flybe Ltd
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