Welcome back! Case of the Week took a brief sabbatical last week due to our seminar commitments. However, it is back this week covering the somewhat morbid topic of death in service.

To compensate for no case last week there are three questions this week:

1. If an employee dies after being unfairly dismissed is the estate of the employee entitled to any death in service benefits?

2.  Can you dismiss a worker for medical incapacity if they are due to receive treatment for an injury which may allow their return to work?

3.  Does not allowing a disabled employee an extended time frame to appeal a dismissal amount to disability discrimination?

Mr Fox, the Claimant had worked for British Airways, the Respondent since 1988 as a Tradesman Refurbisher. In 1995 the Claimant was involved in an accident which left him with a broken back and hospitalised for 11 months. This serious injury unfortunately meant the Claimant suffered long lasting health problems which impacted on both his performance and attendance at work.

In 2008, it was accepted that the Claimant qualified as disabled and he was transferred to a more suitable role as a Data Entry Analyst. However, due to his injury, the Claimant developed a hip problem and was only able to work around half the days he was scheduled to. Initially it was expected that the Claimant would be unable to return to work.

The Claimant had a meeting with his management and they agreed that there were no suitable roles he could move to. The Claimant was told that if he was unable to return to work in 3 months then he would be dismissed. He was told he had seven days to appeal this decision.

After his appeal deadline the Claimant then found out that an operation on his hip might allow him to return to work The Claimant appealed his dismissal and his Union representative informed the Respondent that his operation would be after his dismissal date and requested this date be postponed. The Respondent also received a letter from the Claimant’s consultant confirming that if the operation was a success then the Claimant could resume work.

The Respondent declined the appeal and the Claimant was dismissed. Three days later the Claimant underwent surgery on his hip, however, he unfortunately passed away shortly after. The Claimant’s father bought tribunal claims on the basis that if Claimant had not been unfairly dismissed and discriminated against he would still have been employed when he died and therefore entitled to the death in service benefits.

The Tribunal found that the Respondent had fairly dismissed the Claimant stating that it was also fair to reject the appeal as it was made out of time and he had not applied for an extension. Lastly the ET stated that any award relating to the loss of the death-in-service benefit should not reflect the loss to the potential beneficiaries. Instead it should only relate to the comfort of knowing that the Claimant’s relatives would receive a lump sum insurance benefit on his death.

The Claimant’s father appealed this decision and the EAT upheld his appeal citing the lack of reasonable adjustments made in the appeal process as a disability discrimination making the dismissal unfair. It also stated that the death in service benefit should be awarded to the Claimant’s family. The Respondent appealed the latter point at the Court of Appeals, however, they agreed with the EAT ruling that the death in service benefit was a pecuniary loss.

To answer today’s questions:

Yes, if the employee has been found to be unfairly dismissed then the employee’s family will be entitled to their death in service benefits.

No, if medical evidence suggests they will be able to return to work between the decision to dismiss and the actual dismissal then the dismissal will be unfair even if at the time of the decision this medical evidence was not known to the employer. This could be applied broadly in many dismissal decisions and if contravening evidence comes to the employers attention between the decision and the dismissal itself then the employee has strong grounds for a claim.

Yes, if the employee’s disability makes it difficult to mount an appeal in 7 days then as a reasonable adjustment the employer should grant additional time.



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