A software developer who was refused a request to work from home in Pakistan was unfairly dismissed by her Cheshire employer after management failed to provide sufficient notice that she would be sacked.
Miss Akhtar began working as a .NET developer for Calrom, which provides software for airlines, in 2017.
The Manchester employment tribunal heard there had been “something of a dispute” in 2019 about her wish to be seated near an open window in the office, with Akhtar saying she suffered from anaemia and dizzy spells.
On 31 January 2020, the claimant suffered a “near-faint episode” or “panic attack”. Paramedics attended but she was not taken to hospital, instead being advised to visit her GP. She returned to work on 20 February and was provided with a Dyson fan after she discussed feeling too warm in the office and claustrophobic.
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Given the Covid pandemic’s impact on the aviation industry, Calrom furloughed most of its employees, including Akhtar, on 1 April 2020.
In July 2020, Calrom selected a number of employees to return to the office. This included Akhtar, but she requested her furlough be extended to October 2020.
She referred to her “weak health” and asked to take a career break, under a policy that preceded the pandemic, if her furlough could not be extended.
Calrom granted her request and she formally began her career break on 21 August, with it scheduled to end on 31 January 2021. In December 2021 she went to Pakistan to be with her family.
Career break extension
She asked to extend the career break to May 2021 to complete an “online language course” which she said was “beneficial to my wellbeing”. Calrom permitted her request, but she then asked to extend the break again until January 2022, this time because of her health.
Again this was allowed, but Akhtar was warned it was unlikely further extension would be granted. Calrom also informed her she would need re-training on her return given the length of her career break.
In January 2022, Akhtar wrote to her bosses to express concerns about her ability to return to work as planned. She reported that she had suffered another panic attack the previous October and was waiting to receive a six-to-12-week cognitive behavioural therapy (CBT) treatment.
She wrote: “Due to my poor health I cannot live independently and require family support. In the light of my current health condition, I can see two potential options concerning work life as described below, but I am open to any suggestions that you have.
“Work from home (Pakistan) until I have completed my CBT course and my health is restored to the extent that I can return to the UK. However, I would like to bring to your attention that working from Pakistan would bring some challenges since I live in a small town with limited infrastructure.
“There may be some unexpected internet connection issues, internet speed issues or electricity downtime during the day. The time difference will be a factor, also being in Lahore is unfortunately not an option for me since I have no relatives here, and the whole purpose of being in Pakistan is to have the support of my family.”
Further extension
Lorraine Astbury, Calrom’s chief HR officer, replied and acknowledged that working from home in Pakistan did not appear to be an option. A further extension to the career break “for a final time” was agreed until 31 August 2022.
“This will mean the duration of your break will have been two years,” she wrote. “If at that point you are not able to return then we will have to review your capability to carry out the role in line with our capability policy”.
Communications from the claimant in July 2022 indicated that she “seems in a better place” and expected to return to the UK by mid-August and resume her employment with Calrom. But Akhtar told the tribunal that as the time to return approached, she became more unwell.
In an online meeting with HR on 12 August she said she felt unable to fly back on her own and had begun to make plans to travel to the UK with her parents. This would require them to apply for visas and could take weeks.
There were subsequent internal discussions about what the Calrom should do. It was agreed the claimant would be informed by email that her career break would not be extended again, but, according to the tribunal judgment, “very significantly, it was also agreed that once agreed and approved the email would not be sent to the claimant until the end of the following week because Mr [Simon] Wilkins [chief technology officer] ‘did not want to get into big debate with her’”.
The tribunal concluded that this delay was imposed knowing that by the time she found out, if there had previously been a slim chance that arrangements could be made for her to travel, this would be lost.
‘Impossible to comply’
“It would be impossible for the claimant to comply, so the termination of the claimant’s employment effectively became inevitable,” said the judgment. Akhtar was dismissed the day before she was due to return to work.
Employment Judge Helen Cookson said Calrom failed to consider alternatives to dismissing her and had not explained their concerns sufficiently.
The panel said: “We accepted that the respondent had good reason to doubt the feasibility of the claimant’s proposal for working from home from Pakistan, but given that this suggestion had been raised we considered that a reasonable employer would at least have explained its concerns to the claimant to give her the chance to explain what she said had changed or to put forward other mitigating factors or even to put forward other obvious suggestions, such as being allowed to take some of her accumulated holiday at the start of her official return to work, to facilitate a physical return to the UK.”
The tribunal panel concluded that the approach adopted by the respondent was fundamentally unfair.
Akhtar’s claim of unfair dismissal succeeded but claims relating to disability discrimination were not well-founded and were dismissed.
Compensation will be decided at a later date, but the tribunal stated that it would have to consider how likely the claimant’s dismissal was, even if a fair procedure had been followed, and whether it would be just and equitable to adjust the amount payable to the claimant.
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