Follow Proper Procedure Even in the Most Blisteringly Obvious Cases

In the light of the most recent air disaster this week, once again we are reminded how important it is for businesses to ensure that all steps are taken to ensure safety.

Last year an employment tribunal found that the dismissal of a pilot who had developed a fear of flying was unfair. You might think that this decision beggars belief. You might also think that the honourable thing for a pilot to do if he can’t fly is find or accept a job that doesn’t involve flying. It doesn’t always work that way.

What this case underlines once again is that businesses must fully follow procedure and demonstrate that they are willing to explore all the alternatives to dismissal, even when the chances of avoiding the dismissal seem to be remote.

Discipline

Matthew Guest had been flying with Flybe for seven years. After he was promoted and switched aircraft he started to experience anxiety symptoms.

These emerged on a flight to Florence in December 2014 after he had been moved from flying Bombardier Dash 8 turboprops to Embraer 175 and 195 “Ejets”, which usually fly longer routes. He began to feel dizzy and nauseous in the cockpit. These symptoms continued and he started to feel a feeling of dread when driving to the airport before flying.

Mr Guest’s medical certificate permitting him to fly was suspended after his GP wrote to the company saying he had “developed an increasing phobia and anxiety about long-distance flights and being trapped on the aeroplane.”

He was signed off with anxiety. After counselling he returned to work in April 2016 and the Civil Aviation Authority reinstated his certificate.

Mr Guest attended cognitive behavioural therapy sessions, had extra training and the company reduced his hours. An initial few symptom-free flights that had led him to think he was cured, but the symptoms soon returned. In June 2016 he was due to fly to the Greek island of Kefalonia, a route he had raised concerns about with his manager, who suggested, that during the cruise phase of the journey he might pass the time by reading a book or doing a crossword. He did not go and called in sick instead.

Mr Guest was offered a ground role as a flight safety officer at Exeter airport but was told there was no possibility of returning to flying if he accepted the job.

Things did not improve and eventually Mr Guest was dismissed by the company’s COO, Luke Farajallah. In his letter Mr Farajallah wrote: “The company remains concerned regarding your fitness to safely fly. Due to the uncertainty of your condition we cannot as an organisation accept the risk to safety… Flybe are not prepared to take risks in the flight deck with people’s lives.”

Mr Guest complained that he had been unfairly dismissed, arguing that Flybe could have allowed him to return to flying Dash-8 aircraft which he had flown safely for many years or offered to let him fly accompanied by an additional pilot for a period.

Agreeing with him, the tribunal said that: “It is a basic principle of natural justice and of fairness that an employee should have the chance to address the relevant decision-maker (i.e. Mr Farajallah). Here, the claimant had no such opportunity.”

It concluded that Mr Guest should have been offered an alternative role and given the opportunity to discuss his position with senior managers at the regional airline.

Tribunals focus on procedure. In this case it felt compelled to find the dismissal unfair because Mr Guest had not been given the opportunity to meet with the decision maker.

While commercial common sense has a role in these considerations, you must remember that employees have rights, and these must be fully observed when you take your decisions.

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DISCLAIMER

Although every effort has been made to ensure the accuracy of the information contained in this blog, nothing herein should be construed as giving advice and no responsibility will be taken for inaccuracies or errors.

Copyright © 2019 all rights reserved. You may copy or distribute this blog as long as this copyright notice and full information about contacting the author are attached. The author is Kate Russell of Russell HR Consulting Ltd.