Mr B Garcha-Singh v British Airways plc: 3313382/2019
| Judgment Date | 19 November 2021 |
| Citation | 3313382/2019 |
| Date | 19 November 2021 |
| Published date | 06 December 2021 |
| Court | Employment Tribunal |
| Subject Matter | Race Discrimination |
Case Number: 3313382/2019
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EMPLOYMENT TRIBUNALS
Claimant: Mr B Garcha-Singh
Respondent: British Airways plc
Heard at: Watford On: 18, 19, 20 & 21 October 2021
22 October 2021 [Tribunal only]
8 November 2021 [Tribunal only]
Before: Employment Judge Maxwell
Mr Bean
Mr Bone
Appearances
For the claimant: Mr M Duggan QC, Counsel
For the respondent: Ms K Newton QC, Counsel
JUDGMENT
1. The Claimant’s claims of unfair dismissal, wrongful dismissal, victimisation, race
discrimination and disability discrimination are not well-founded and are all
dismissed.
REASONS
Issues
1. The parties agreed the issues, per the list attached to the order of EJ McNeill QC
of 8 January 2020. At the outset Mr Duggan QC and Ms Newton QC confirmed
these were still agreed.
2. On the Tribunal noting the Claimant’s witness statement referred to a reasonable
adjustments claim there was some discussion of whether the Claimant’s
amended particulars included such a claim and if so what it comprised. The
parties agreed on this also. This list of issues was amended so as to add the
following issues with respect to reasonable adjustments:
2.1 Did the Respondent apply the provision, criterion or practice (“PCP) of:
2.1.1 having to prove fitness to fly by 21 December 2018;
2.2 Did the PCP put the Claimant at a substantial disadvantage compared to
someone without the claimant’s disability?
Case Number: 3313382/2019
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2.3 Did the Respondent know or could it reasonably have been expected to
know that the Claimant was likely to be placed at the disadvantage?
2.4 What steps could have been taken to avoid the disadvantage? The
claimant suggests:
2.4.1 Making reasonable enquiries into alternative employment;
2.4.2 Revoking his termination date;
2.4.3 Rearranging the BAHS referral.
Disability
3. The Claimant says he was a disabled person at material times by reason of:
3.1 type II diabetes;
3.2 post-traumatic stress disorder.
4. The list of issues for determination did not include any questions about disability
or knowledge. The claim has proceeded on the basis of concessions by the
Respondent that the Claimant was a disabled person at material times:
4.1 by reason of a physical impairment (diabetes) of which it had knowledge
by 7 December 2017;
4.2 by reason of a mental impairment (stress, depression & PTSD) of which it
had knowledge by 13 July 2018.
Evidence
5. The Tribunal heard evidence from:
5.1 Mr Bahadur Garcha-Singh, the Claimant;
5.2 Mrs Harveen Gupta, formerly Inflight Business Manager;
5.3 Ms Renata Caruso Lorenzo, formerly Area Manager.
6. We were provided with an agreed bundle of documents, to which additions were
made.
Submissions
7. Mr Duggan QC produced:
7.1 opening submissions;
7.2 a chronology;
7.3 a bundle of authorities.
Case Number: 3313382/2019
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8. Ms Newton QC produced:
8.1 A chronology;
8.2 outline closing submissions.
Facts
Witness Evidence
9. Whilst we were satisfied that all witnesses were doing their best to give an
honest account of events, insofar as they now recall them, there were some
deficiencies on both sides. In her evidence, Mrs Gupta’s did on a number of
occasions drift away from the question and offer generalities or justification,
rather than the clarification being sought. The questions she was being asked
were, however, almost all about contract, policy and fairness. She was not (or
not significantly) challenged in her factual account of what she did or what was
said on particular occasions. It was not put to Mrs Gupta that she acted as she
had because of the Claimant’s race or him doing protected acts. As far as the
Claimant’s evidence was concerned, this was somewhat more unsatisfactory. At
various points in his cross-examination or when asked straight-forward questions
by the tribunal, for example about his understanding of plainly worded
correspondence he received or whether contemporaneous notes accurately
reflected discussions which had taken place, there were very long pauses before
any answer was provided. Whilst the Tribunal recognises these matters go back
a number of years and it may on occasion have been difficult for the Claimant to
recall events, this would not seem to explain the Claimant’s difficultly in
accepting the meaning of words on the page or agreeing their accuracy and it
appeared these pauses coincided with questions, a direct answer to which might
not support his case. Furthermore, when the Claimant did begin to answer,
whether after a long pause or not, he would frequently ignore the subject of the
question entirely and instead, speak at great length about some other aspect of
his case. Whilst we do not doubt his honesty, we were not always certain of his
reliability.
Background
10. The Claimant was employed by the Respondent airline in the position of Cabin
Crew Long Haul, under a contract of employment dated 12 February 1997. His
contractual duties and responsibilities included ensuring the safety and welfare
of crew and passengers. The Claimant agreed his role required he be fit for
flying and that he may be required to undergo examination from time to time, so
the Respondent could be satisfied of his fitness.
11. The Claimant was dismissed following a lengthy period of sickness absence.
Whilst the Respondent says his employment was terminated with effect from 21
December 2018 because of this pattern and it not appearing he would be able to
return to flying or sustain regular attendance in his contractual role, the Claimant
suggests he was dismissed for other reasons, including his race and because he
did protected acts. The Claimant brings claims of disability and race
discrimination relating to his dismissal on 21 December 2018, including an
alleged failure to make reasonable adjustments which might have avoided that.
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