In the case of Mr M Sangha v British Airways plc, the Employment Tribunal ruled that where an employee is dismissed for incapacity due to ill-health, the procedure followed by the employer has to be reasonable and sufficiently consider alternative positions of employment within the organisation.

- Background
Under s.98 (2) of the Employment Rights Act 1996 (ERA), the employer can rely on incapacity or persistent absenteeism as an admissible reason for dismissal, but the employer must act reasonably in treating this reason as a sufficient means for dismissal.

- Facts
Mr Sangha was a British Airways logistics agent which included driving duties. He had been put on an absence monitoring programme by the airline after he had missed a significant number of shifts over a six-year period.
In October 2015, Sangha was signed off work with an eye infection and he was subsequently referred to an eye hospital, where an eye specialist determined that he should avoid night driving. The hospital provided him with a medical certificate explaining this to his employer, but Sangha did not give this to British Airways until a review meeting in December 2015.
Sangha expressed that he was prepared to drive during daylight hours only, or complete other alternative duties, but British Airways found his absence record to be unsustainable and he was dismissed with effect from 10 March 2016.

- Tribunal decision
The Tribunal ruled that British Airways had not acted reasonably in dismissing Sangha due to incapacity because they had approached the meetings with a closed mind about its outcome, and consequently failed to exhaust the possibility of alternative suitable employment and reasonable adjustments or modifications to the current job.
The problem Sangha was continuing to experience related to night driving only, and therefore the Tribunal concluded that there did not seem to have been any real exploration (given the substantial size of British Airway’s operation) of the possibility of alternative duties, or limiting Sangha’s hours to daylight driving.
However, the Tribunal did take into account that Sangha partially contributed to his own dismissal as he delayed in disclosing the medical certificate to British Airways. The compensatory award was thus reduced by 33.3% to £19,075 from £28,599.

- Implications
This case highlights the importance of employers undertaking a rigorous investigation into how changes can be made to improve an employee’s attendance in their current job, or to properly consider alternative suitable roles within the company. Dismissal should be a last resort after all other options have been exhausted.
For further information, please contact Koichiro Nakada – Head of Japan Business Group (koichiro.nakada@lewissilkin.com) and Yoko Nakada - Senior Associate, Deputy Head of Japan Business Group (yoko.nakada@lewissilkin.com).
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