The Claimant was employed as Cabin Crew Long Haul. He was dismissed by reason of incapability, following lengthy sickness absence. The decision to terminate his contract of employment was made on 31 August 2017 and was due to take effect on 5 January 2018. Thereafter, the Respondent extended the termination date on seven occasions. The reasons for the extensions included the Claimant demonstrating his 'ability to sustain a full flying roster' and to give the Respondent time to investigate the Claimant's claims of racism. In December 2018 the Respondent declined to extend the termination date further and the Claimant’s effective date of termination was 21 December 2018. At the time when the termination decision was made in August 2017 the Claimant had been unable to fly for over a year. The ET found that the dismissal was fair, saying that 'We cannot say the approach followed here, of setting a termination date and then putting that back to allow the Claimant a further opportunity to return to work was a procedure that no reasonable employer would adopt.' The Claimant appealed.

The EAT dismissed the appeal. They rejected the contention that the successive extensions to the Claimant’s termination date constituted a deviation from the Absence Management Policy (AMP) and a breach of his contract. The AMP envisaged a decision, in the singular, to terminate an employee’s employment and identified the steps to be taken before making that decision (about which there was no complaint in this case). However, it did not prevent a manager from subsequently postponing the termination date for the employee’s benefit, as had occurred here on the ET’s findings. It was quite clear from the ET’s findings that in this case there was no substantive unfairness to the claimant and that each of the extensions was to his advantage. The EAT also rejected contentions that the absence of an appeal from the 21 December 2018 decision was a breach of the claimant’s contract and that the ET erred in failing to find that the respondent’s approach to the appeal was outside of the band of reasonable responses. Pursuant to the AMP, the claimant was entitled to an appeal from the decision to terminate his employment. On the ET’s findings he was given this, namely a full and fair appeal against the decision to dismiss him, which he initiated in July 2018 and was determined in October 2018. Furthermore, the ET lawfully found that the additional matters that the claimant wanted to raise in December 2018, had he been given a further appeal, added “very little to what had gone before” and did not address the respondent’s reason for terminating his employment.