A cabin crew member with 40 years’ service has won her disability discrimination claim after British Airways failed to make reasonable adjustments when stress and anxiety meant she felt unable to fly.
Ms Clifford had worked for BA since 1983 and had a good attendance record. In March 2020, when the Covid pandemic began, she was an in-flight manager. Like many BA crew at the time, Clifford was placed on furlough in April, during which she was notified of her redundancy, due to significant restructuring, with effect from 31 August 2020.
Shortly before it took effect, her redundancy was revoked as she was offered an alternative cabin crew role, two grades below her previous role. She raised a grievance.
Clifford remained on furlough until she was due to return to work in September 2021. On 20 September, prior to her return, the claimant went on long-term sickness absence due to depression and work-related stress. This was her first significant period of absence and the first time she was managed under BA’s sickness absence policy.
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Between December 2021 and May 2022, there were discussions about her returning to the in-flight manager role. In May 2022, after her grievance had concluded, she was referred to the British Airways Health Service (BAHS) for the first time.
It concluded Clifford was unfit for normal duties and was likely covered by the Equality Act, but made no recommendations about her return to work.
A GP’s fit note covering June to September 2022 said that Clifford was not fit for work at all, but in an email that July, Clifford proposed a phased return to work with reasonable adjustments, including ground duties two days a week for a period, with a view to returning to flying duties. She requested these ground duties at Gatwick rather than Heathrow to reduce her time commuting.
Sickness absence reviews held on 10 August and 1 September culminated in her being told that if she had not reported fit by 4 September, a termination date would be set in writing with no further meeting.
Not fit to fly
Ms Lewis, who was managing Clifford’s absence, said that two months’ ground duties would not happen and were not feasible. The tribunal found there had been a misunderstanding. BAHS advice at this time was that she would be fit for ground duties from 31 August 2022, not fit to fly.
The tribunal found this was a challenging meeting for the claimant. “It took place a very short period of time (three weeks) after the start of discussions about a phased return, the purpose of which was to rebuild the claimant’s confidence,” said the judgment.
Another GP fit note dated 5 September said that the claimant was fit for a phased return, two days a week on ground duties and that would be the case for three months.
On 8 September, Clifford informed Lewis by email that she would not be well enough to return to work, but did not report her sickness to BA’s “career success hub” as required. As a result, Lewis put the claimant on unpaid leave, recording her as “unaccounted for” from 7-14 September 2022.
There was a substantial failure by [British Airways] to give proper consideration to suitable alternative employment in line with the requirements of its own policy. It is almost always proportionate for an employer dismissing an employee because they cannot perform their substantive role to give consideration of whether there is an alternative role the employee could perform” – judgment
A third BAHS report recommended nine weeks of ground duties and that a Gatwick placement would be helpful.
At a further sickness absence review on 21 September, Lewis explained that the only BA Gatwick role available would require an airside pass, which the tribunal heard would take a long time to obtain.
The only ground duties offered to Clifford were a Heathrow “help hub” shadowing role, assisting BA’s disabled passengers.
She began this role and emailed BAHS to say that she had managed two days a week for three weeks and had increased to three days a week for two weeks. She said she was finding three days overwhelming and asked if she could revert to two.
The employment tribunal in Reading accepted that the help hub was fast-paced and noisy, and that the long commute to Heathrow increased the claimant’s stress and anxiety.
‘Just a little bit of anxiety’
Her line manager at the BA help hub was Mr Landy. The tribunal found that he asked her more than once why she felt overwhelmed and described her as having “just a little bit of anxiety”.
Another fit note on 3 November said Clifford should work two days a week as three days was unsustainable. It also flagged the problem with travelling to Heathrow.
Another sickness absence review took place on 7 December, where Clifford explained that she did not consider the help hub a suitable placement.
Lewis offered three weeks in the resourcing and recruitment team at Heathrow, three days a week, which Clifford accepted, but Lewis said she would have to be fit to fly after that, so she could start a “return to flying” course in January.
Lewis said that because Clifford had not met her rehabilitation plan and was not ready to return to her contractual flying role, a termination date would be set, taking effect on 6 March 2023. She added that until that date, she would consider whether the termination could be revoked, or the termination date extended.
On 15 December 2022, Lewis emailed a letter confirming termination on grounds of incapacity. Clifford did not report fit to fly. She appealed against her dismissal, but it was upheld on 10 March and took effect on 14 March 2023.
Also on 10 March, updated advice from BAHS recorded that Clifford’s GP had recommended three months’ ground duties. The BAHS adviser said the claimant was not fit for her full contractual flying role and could not give a likely timescale for a return.
‘Clumsy’ but not unfavourable treatment
The judgment said: “Mr Landy telling the claimant she had ‘just a little bit of anxiety’ was clumsy and suggested to the claimant that he was minimising her condition. It came across as an attempt to dismiss how she was feeling. However, in itself, and in the context of the other steps Mr Landy was taking, this comment on its own did not amount to unfavourable treatment.”
Upholding her claims of discrimination arising from disability in relation to her dismissal, failure to make reasonable adjustments, and unfair dismissal, Employment Judge Emma Hawksworth concluded: “The claimant needed a phased return in a ground duties placement before returning to her full contractual flying role. That was because of the need to rebuild her confidence and to give time to adjust to working again, and these requirements arose from her disability.”
The judgment added: “It was not proportionate to dismiss the claimant at the end of her first placement on 7 December 2022. She had been allocated an initial placement in an environment that was not suitable for the claimant and which was more than the shadowing role BAHS had thought.
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“The second placement was for three weeks. The BAHS reports had referenced ground placements of nine or six weeks. The claimant’s doctors advised that she needed longer on ground duties. The claimant had not yet started her second placement.
“The respondent’s witnesses seemed to be in some doubt about whether issuing a termination letter amounted to a dismissal, because they had said they would keep the dismissal under review. What the claimant was told on 7 December amounted to a dismissal, irrespective of the fact that it could have been reviewed later.
“The dismissal was confirmed in writing on 15 December. When considering the proportionality of dismissal, we focus on the circumstances as they were on the date of dismissal. We have concluded that it was not proportionate for [BA] to dismiss the claimant at that time.”
Suitable alternative employment
The judge added that the final decision in March 2023 to allow the dismissal to take effect was based on BAHS’s advice about the claimant’s substantive role only.
“There was a substantial failure by [British Airways] to give proper consideration to suitable alternative employment in line with the requirements of its own policy. It is almost always proportionate for an employer dismissing an employee because they cannot perform their substantive role to give consideration of whether there is an alternative role the employee could perform.”
Other complaints of discrimination and harassment arising from disability and direct sex discrimination against BA were dismissed. A remedy hearing to decide compensation has been listed next month. Payment for Clifford’s leave where she was “unaccounted for” was agreed by consent.
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