In a recently reported Employment Appeal Tribunal (EAT) case, Mr Murdoch was employed by British Airways (BA) as a member of its cabin crew. Due to the nature of his role BA required that employees should provide notification of criminal convictions to their line manager within 14 days of any such conviction.
On 2 June 2015, Murdoch pleaded guilty to two disqualifying offences connected to housing benefit fraud. On 25 June 2015, he received a 6-month suspended prison sentence. On 27 June 2015, Murdoch reported for work as usual and worked on a return flight to the USA. Whilst checking into another flight on 4 July 2015 he mentioned in passing to his manager that he had pleaded guilty to housing benefit fraud but he omitted to mention he was convicted and gave the impression that no action was taken. The matter escalated and a formal meeting was held. After this meeting, Murdoch was suspended. On 9 July 2015, (the final date for notification) Murdoch emailed his line manager providing details of the conviction and suspended sentence.
The disciplinary hearing
At the disciplinary hearing Murdoch faced two allegations:
- Failure to disclose a qualifying criminal convictions and
- Conduct which affected his suitability to remain as BA crew.
Following a disciplinary meeting, BA concluded that Murdoch had no intention of disclosing the conviction on his own accord and called into question Murdoch’s honesty and integrity. On this basis BA could no longer employ him.
Murdoch’s attempt to raise his disability (HIV) as mitigation was not accepted, as it was held to be unconnected to the allegations. Murdoch subsequently raised complaints against BA on grounds of unfair and wrongful dismissal and direct disability discrimination.
What did the Employment Tribunal say?
The Employment Tribunal (ET) found that the reason for dismissal was Murdoch’s conduct. BA had carried out a reasonable investigation and disciplinary procedure, from which sufficient evidence to justify dismissal was established. Regarding the claim of direct discrimination, the ET found there was no link between the failure to disclose the conviction before prompting and the disability. Murdoch appealed this decision.
What did the EAT say?
The EAT agreed with the finding in relation to the claim of disability discrimination. However, it held that judgement on the unfair and wrongful dismissal claims were incorrect. It found that the goalpost with regard to the allegation had been moved. BA had asked Murdoch to answer to allegations in relation to failing to notify of convictions but had found him guilty in relation to the allegation of intending to act in breach of the BA policy to notify. The EAT stated “The Tribunal ought to have considered the claims of unfair and wrongful dismissal in the context of the proper construction of [BA’s] policies.” The case was sent back to the tribunal for reconsideration of the facts.
What can employers’ takeaway?
- When drafting disciplinary allegations be clear and specific.
- During the disciplinary hearing or after the hearing do not change the allegations.
- Before dismissal or any other form of sanction, ensure that the allegation(s) as set out in the disciplinary letter are established.