In this case, the Employment Appeal Tribunal (“EAT”) considered whether it was unfair for an employer to give notice of dismissal to an employee but then postpone the effective termination date on several occasions.
The Claimant was employed by the Respondent as cabin crew and began a period of absence in August 2016. The Respondent’s absence management policy (“AMP”) was incorporated into the Claimant’s contract of employment and set out the procedure to be followed in the event of an employee’s medical incapacity. It provided for a right of appeal against a decision to terminate an employee’s employment but was silent on whether termination dates could be postponed.
On 31 August 2017, the Respondent gave the Claimant notice of the termination of his employment, to take effect on 5 January 2018. However, he was told that the date was not “set in stone” and he would be supported in the interim. The termination date was then postponed on seven occasions, eventually taking effect on 21 December 2018. The Claimant appealed against the decision to terminate his employment, but this appeal was rejected on 24 October 2018. The appeal decision noted that the extensions to the termination date had caused the Claimant additional stress but found that they had been made in an attempt to accommodate management of his ongoing issues and medical conditions and support his return to work. The Claimant issued various proceedings in the Employment Tribunal (“ET”) including for unfair dismissal.
The ET found that the dismissal was fair, noting that while the approach followed by the Respondent in setting a termination date and then postponing that date to allow the Claimant a further opportunity to return to work had been unusual, it could not be said this approach was one that no reasonable employer would adopt. Further, while the AMP was contractual, the fact it did not expressly provide for the extension of a termination decision did not mean that doing so was a breach of contract. The Claimant subsequently appealed to the EAT.
The EAT rejected the Claimant’s argument that the process adopted by the Respondent involved a breach of his contract. The EAT looked at the wording of the AMP in detail, noting that it envisaged a decision (in the singular) to terminate an employee’s employment and identified the relevant steps to be taken before making that decision. However, it did not attempt to cover every eventuality, identify every step a reasonable manager might take, or deal with how a manager should react to circumstances arising after a termination decision had been made. It therefore did not prevent a manager from subsequently deciding to postpone the date on which a termination took effect. Importantly, even if this had amounted to a breach of contract, it would not necessarily follow that the dismissal was unfair. The ET then had to ask whether the procedure adopted was within the range of reasonable responses. It was clear from the ET’s findings that each of the extensions were in fact intended to allow the Claimant a further opportunity to return to work, and were therefore to his advantage.
Further, the EAT rejected the contention that failure to afford the Claimant an appeal against the 21 December 2018 dismissal was contrary to the AMP and a breach of contract. Under the AMP, the Claimant was entitled to an appeal from the “decision to terminate employment” i.e. the decision that was taken on 31 August 2017, in respect of which the Claimant had already been given a full and fair appeal. The decision taken on 21 December 2018 was simply a decision not to further postpone the Claimant’s termination date and did not fall within the meaning of a “decision to terminate employment” under the AMP.
This is a useful reminder that if policies are incorporated into contracts, this can give employees the ability to claim breach of contract where they are not followed. In general it is sensible for employers to expressly state in contracts of employment and the relevant policies themselves that they are non-contractual and capable of amendment at any time. While the successive postponements of the termination date in this case were unusual and will not be the norm, this case suggests it will be difficult for an employee to argue that postponement to a termination date renders the dismissal unfair.