CONCLUSIONS
75. We consider that there was a breach of contract by the respondent in their dealings with Captain Leslie. Considering first of all the medical examination. The contractual requirements placed upon Captain Leslie were to meet the standards set by the CAA Captain Leslie had this clearance at the outset of the disciplinary process at the beginning of September 2000, it was renewed in the ordinary course of events in October 2000 and then again voluntarily renewed by
Case No: 2600427/01
Captain Leslie on 16 January 2001 in an attempt to satisfy British Midland. We acknowledge that an employer has a duty to have a safe system of work and safe fellow workers for their other employees. This duty is clearly apparent in the case of an airline where mistakes can have drastic consequences. However, we believe that there has been a breach of duty of trust and confidence by the employer in this case in requiring a further medical from Dr Medley. The most upsetting incident is: the written warning had been some months prior to the request for the medical. We do not believe that there was any good reason for the respondent to require a psychiatric examination of Captain Leslie. In fact, during the course of the process no such medical was required between August and December 2000 tire appointment was in January 2001). During that time the respondent had been happy to allow Captain Leslie to return to flying duties. This was the case at the time when the written warning was given.
76. There was no particular reason to require a report specifically from Dr Medley. Apparently British Midland asked their solicitors as to who could provide a report. There was no indication that Dr Medley had the necessary qualifications. No consideration was given to referring Captain Leslie to Dr Creswell. Dr Medley was not CAA approved. The referral to the psychiatrist
-was seen as prejudicial and potentially having an adverse effect on his career by Captain Leslie. The letter sent to Captain Leslie after the appeal simply says that he is required to attend the meeting. Noticeably it does not advise him of a requirement to see a psychiatrist. We believe this is indicative of the tact that British Midland resalised that they were suggesting something which would be clearly unacceptable to Captain Leslie. We believe the duty of trust and confidence implicit in the contract of employment was broken by requiring a medical examination before returning to flying. We do not accept the choice of the doctor as reasonable but more than that, it broke the duty of trust and confidence necessary in an employment relationship. We refer specifically in this respect to Bliss above.
77. So far as the dismissal is concerned we believe that this was in breach of contract in that no notice was given. There had been no breach of the contract by Captain Leslie as the contract written terms did not require him to satisfy a higher standard of health than- that required by the CAA. In fact there had been a breach of contract by the respondent not by Captain Leslie. The dismissal was for the reason of refusing to have a medical examination such examination not being required by the contract. As this was not a contractual requirement refusal by Captain Leslie was not a breach of contract. in those circumstances, the contract could only be terminated by the three-months’ notice as provided in the contract.
78. Turning now to the fairness of the dismissal. We have applied Section 98 Employment Rights Act 1996, We find that the reason for the dismissal is as stated by the respondent. We do not believe that the dismissal was for the reason of refusing to take the flight in September 2000 nor for his publicity of that event amongst other pilots as set out above. We believe that the reason given by the respondent is the true reason. We go further and find that the reason
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given by the respondent is reason Within Section 98(1) in that It is for some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.
79. We can foresee a situation where it may be appropriate to require a medical examination such as was required by the respondent. Our finding, however, is that this was not such a situation.