Fox v British Airways Plc


Long-time readers might remember this case concerning death in service benefits and unfair dismissal. The right to death in service benefits was confirmed by the Court of Appeal, however, the unfair dismissal element of the claim remains to be decided.

This is a case that has quite a complex chronology, to summarize:

  • The Claimant, Mr. Fox, had an accident at work which resulted in long-lasting health problems that impacted his performance and attendance at work.
  • The Claimant was told that if his condition did not improve within 3 months he would be dismissed. This dismissal was confirmed to him in writing
  • The Claimant was informed that an operation could alleviate his condition and allow him to return to work. The operation would be shortly after his dismissal date.
  • The Claimant requested the termination date be postponed, to allow him to have the operation and try to return to work. The Respondent declined.
  • The Claimant was dismissed and died shortly after the surgery.
  • The Claimant’s father initiated ET proceedings stating that his son was unfairly dismissed and because of this his estate lost out on entitlement to his death in service benefits.
  • The ET rejected the claim but the EAT allowed part of the claim and remitted it back to ET. The main issue was that the ET had not explained its reasoning as to why the information regarding the operation was not considered when deciding to dismiss.
  • That ET has since rejected the claim and the father has appealed again, which is the decision we now have.

In the second ET hearing:

The Judgment did not fully explain its reasons for finding it was reasonable to not postpone the termination date.

The EAT allowed the appeal and has remitted the case to a new ET which should yield a definitive answer as to whether the Claimant was unfairly dismissed and thus whether his estate was entitled to a death in service benefit.

Whilst this does not answer the question of liability it does serve as an example as to how any contentious HR decision can result in litigation. In this case, the litigation has lasted 7 years resulting in a significant cost for all parties.