bmi pays pilot £62,000 compensation
Evenin', gentlemen.
Got into this thread quite late but have been totally fascinated.
Nice to see there are still some with the guts to stick to Schedule "F" and to take issue with the way Crewing are still being encouraged to distort bilateral agreements. 'Twas ever thus.
("Never mind the 4 hour delay, just put yourself on duty 45 minutes before your actual takeoff time.")
There are only two things that confuse me.
1) I thought it was in unacceptable taste to mention anyone by name, no matter how sh**ty the subject might be.
2) Why wasn't this thread first raised on the bmi forum which has been virtually empty for at least a month now ?
Anybody care to enlighten me ?
Rgds, Sleeve.
Got into this thread quite late but have been totally fascinated.
Nice to see there are still some with the guts to stick to Schedule "F" and to take issue with the way Crewing are still being encouraged to distort bilateral agreements. 'Twas ever thus.
("Never mind the 4 hour delay, just put yourself on duty 45 minutes before your actual takeoff time.")
There are only two things that confuse me.
1) I thought it was in unacceptable taste to mention anyone by name, no matter how sh**ty the subject might be.
2) Why wasn't this thread first raised on the bmi forum which has been virtually empty for at least a month now ?
Anybody care to enlighten me ?
Rgds, Sleeve.
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Sleeve Wing...
.
I agree with you re the naming of individuals...
Leaves a nasty taste in the mouth, especially as they
cannot answer back....at the moment.
.
Look forward to hearing the "other side of the story"
.
I agree with you re the naming of individuals...
Leaves a nasty taste in the mouth, especially as they
cannot answer back....at the moment.
.
Look forward to hearing the "other side of the story"
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I believe it was Flanker who posed the question of where the CAA were in all this. Simple, they delegate their watchdog powers to a third party these days. Guess who, yes the company pulling the fast one in the first place. When the poacher is also the gamekeeper there can only be one winner and it ain't us.
Ark baby, I knew the basic facts of this case at the time and it was only post the incident that things got changed slightly.
Best of luck Grotehaasje.
lurkio
Ark baby, I knew the basic facts of this case at the time and it was only post the incident that things got changed slightly.
Best of luck Grotehaasje.
lurkio
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You dont have to take my word for any of the "wrongdoings" now; look at the proposals to just do away with your contracts under the current AFS.
I'll have a few days over the weekend and I'll start to put post some of the facts, not opinions, so that you can judge for yourselves.
And just for the record, whilst the whole topic was "first raised" on the Onelist the requests to have the duty changed was not. It went as far as emailing a Director, albeit unsuccessfully.
The truth is out there somewhere; and it'll make good holiday reading. Well, marginally better than an Archer novel
I'll have a few days over the weekend and I'll start to put post some of the facts, not opinions, so that you can judge for yourselves.
And just for the record, whilst the whole topic was "first raised" on the Onelist the requests to have the duty changed was not. It went as far as emailing a Director, albeit unsuccessfully.
The truth is out there somewhere; and it'll make good holiday reading. Well, marginally better than an Archer novel
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Save it - archive it!
Fascinating - and some very important issues here far beyond the personal - professional, safety, legal, whistleblowing, industrial relations, solidarity.....even moral and ethical.
How then can an old computer (semi)illiterate like myself save it, beyond dumping it all into a document? And can I request that when it reaches the size limit or drops to the bottom of the board that this thread is archived?
Grotehaasje - well done on "winning" and for raising these issues.
WE.
How then can an old computer (semi)illiterate like myself save it, beyond dumping it all into a document? And can I request that when it reaches the size limit or drops to the bottom of the board that this thread is archived?
Grotehaasje - well done on "winning" and for raising these issues.
WE.
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The Employment Tribunal Decision Document
This is the text of the Decision Document from the ET; it is one of 3 documents I have and which are genearlly available. I have Danny's permission to post it and have scanned the original in and corrected the spelling; although, there may be the odd error. I have not changed any names, nor fiddled with the formatting nor have I have selectively added or omitted anything. Any erros are simply due to the scanning and OCR process.
The document is large, it runs to more than 17 pages;it will have to be split over 4 or 5 posts, my apologies.
Counsel was Mr Richard Seabrook of Ropewalk Chambers Nottingham; the instructing solicitors were Mr Phillip Hoskin and his assistant, Mr David Seals, of Andrew and Co, St Swithins Square, Lincoln. Representing bmi was Ms Sarah Porter of Kemp Little.
Once you have read the document, please note that I will be on holiday from this Friday, the 9th, and hence unable to answer any questions, or debate any points you may have. Furthermore, please read this and consider the implications for the other thread regarding bmi contracts.
*************************************************
Case No: 2600427/0 1
RESERVED DECISION
The unanimous decision of the Employment Tribunal is that:
1 The respondent breached its contract of employment with the applicant.
2 The respondent unfairly dismissed the applicant.
3 There will be a hearing to determine what remedies for breach of contract/unfair dismiss& should be ordered in the applicant’s favour at 10.OOam on 26 November 2001 at Lincoln.
EXTENDED REASONS
The ISSUES
1. The issues for the Tribunal to determine in this case are whether the respondent had acted in breach of its contract of employment with the applicant by requiring him to attend for a medical examination before permitting him to return to flying, the principal duty of his employment and in summarily dismissing the applicant. Further, we were to determine whether there had been an unfair dismissal having both regard for the reason for the dismissal and the procedure adopted by the respondent.
THE LAW
2. The contract between employer and employee is to be found in written documentation containing that agreement and also in the agreements made between them from time to time. A party which acts contrary to the express terms of the contract is in breach. Breaches of fundamental terms given the other party the option to treat the contract as repudiated. In such circumstances rights under the contract including the right to notice of termination are lost by the party in breach. In addition are terms and duties to be implied into the contract including the ernployers duty to provide a safe system of work and safe competent colleagues for its employees (Wilsons & Clyde Coal Co_Ltd V English [1938] AC57HL).
3. There is to be implied into contracts of employment a mutual duty of trust and confidence. This requires a party not without reasonable cause to conduct itself in a manner calculated or likely to damage or destroy the relationship of confidence and trust between the contracting parties.
4. Requiring an employee to undergo psychiatric examination when there is no mental or pathological illness, but merely a severe degree of breakdown of
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Case No: 2600427/01
personal relationships could amount to a fundamental breach of the duty of trust and confidence, a breach constituting repudiation of the contract (Bliss v_South East Thames Regional Health Authority f198fl ICR 700 CA’
5. By section 98(1) Employment Rights act 1996 it is for the employer to show the reason for the dismissal when an employee complains to a Tribunal of unfair dismissal. The employer has to show that the reason is one set out in section 98(2) of the 1996 Act or for some other substantial reason of a kind such as to justify the dismissal of an employee holding the position held by the applicant.
6. Once the employer satisfies this requirement the Tribunal is to determine the fairness of the dismissal taking into account all the circumstances of the case including the reason for ft and the size of the employer’s undertaking. and resources. The Tribunal is to determine whether the employer acted reasonably or unreasonably in treating the reason as a sufficient to dismiss the employee.
7. The requirement for fairness applies both to the reason for the dismissal and the process by which the decision to dismiss is reached. In most cases there will be a range or band of reasonable responses to the conduct of employee available to a reasonable employer.
This is the text of the Decision Document from the ET; it is one of 3 documents I have and which are genearlly available. I have Danny's permission to post it and have scanned the original in and corrected the spelling; although, there may be the odd error. I have not changed any names, nor fiddled with the formatting nor have I have selectively added or omitted anything. Any erros are simply due to the scanning and OCR process.
The document is large, it runs to more than 17 pages;it will have to be split over 4 or 5 posts, my apologies.
Counsel was Mr Richard Seabrook of Ropewalk Chambers Nottingham; the instructing solicitors were Mr Phillip Hoskin and his assistant, Mr David Seals, of Andrew and Co, St Swithins Square, Lincoln. Representing bmi was Ms Sarah Porter of Kemp Little.
Once you have read the document, please note that I will be on holiday from this Friday, the 9th, and hence unable to answer any questions, or debate any points you may have. Furthermore, please read this and consider the implications for the other thread regarding bmi contracts.
*************************************************
Case No: 2600427/0 1
RESERVED DECISION
The unanimous decision of the Employment Tribunal is that:
1 The respondent breached its contract of employment with the applicant.
2 The respondent unfairly dismissed the applicant.
3 There will be a hearing to determine what remedies for breach of contract/unfair dismiss& should be ordered in the applicant’s favour at 10.OOam on 26 November 2001 at Lincoln.
EXTENDED REASONS
The ISSUES
1. The issues for the Tribunal to determine in this case are whether the respondent had acted in breach of its contract of employment with the applicant by requiring him to attend for a medical examination before permitting him to return to flying, the principal duty of his employment and in summarily dismissing the applicant. Further, we were to determine whether there had been an unfair dismissal having both regard for the reason for the dismissal and the procedure adopted by the respondent.
THE LAW
2. The contract between employer and employee is to be found in written documentation containing that agreement and also in the agreements made between them from time to time. A party which acts contrary to the express terms of the contract is in breach. Breaches of fundamental terms given the other party the option to treat the contract as repudiated. In such circumstances rights under the contract including the right to notice of termination are lost by the party in breach. In addition are terms and duties to be implied into the contract including the ernployers duty to provide a safe system of work and safe competent colleagues for its employees (Wilsons & Clyde Coal Co_Ltd V English [1938] AC57HL).
3. There is to be implied into contracts of employment a mutual duty of trust and confidence. This requires a party not without reasonable cause to conduct itself in a manner calculated or likely to damage or destroy the relationship of confidence and trust between the contracting parties.
4. Requiring an employee to undergo psychiatric examination when there is no mental or pathological illness, but merely a severe degree of breakdown of
1
Case No: 2600427/01
personal relationships could amount to a fundamental breach of the duty of trust and confidence, a breach constituting repudiation of the contract (Bliss v_South East Thames Regional Health Authority f198fl ICR 700 CA’
5. By section 98(1) Employment Rights act 1996 it is for the employer to show the reason for the dismissal when an employee complains to a Tribunal of unfair dismissal. The employer has to show that the reason is one set out in section 98(2) of the 1996 Act or for some other substantial reason of a kind such as to justify the dismissal of an employee holding the position held by the applicant.
6. Once the employer satisfies this requirement the Tribunal is to determine the fairness of the dismissal taking into account all the circumstances of the case including the reason for ft and the size of the employer’s undertaking. and resources. The Tribunal is to determine whether the employer acted reasonably or unreasonably in treating the reason as a sufficient to dismiss the employee.
7. The requirement for fairness applies both to the reason for the dismissal and the process by which the decision to dismiss is reached. In most cases there will be a range or band of reasonable responses to the conduct of employee available to a reasonable employer.
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FACTS FOUND
3. The Tribunal heard evidence over the course of 3 days from the applicant, Captain John Leslie (Captain Leslie), Captain Clarke a pilot employed by the respondent (who accompanied Captain Leslie at disciplinary hearings, appeals and other meetings) Captain Lawrie the Crew Resource Manager of the respondent, Captain lain Cullen the respondents Chief Pilot and Mr Damien Fletcher, Company Personnel Manager. We also considered two substantial bundles of documents and a letter from a Dr Cresswell dated 19 September 2001, a copy of which was provided to both parties for comment prior to the Reserved Decision on 9 October 2001
9, We make the following findings of fact on the balance of probabilities.
13. The respondent is a well known household name company operating domestic and other flights from Heathrow Airport, 9ritish Midlands Airport end elsewhere. It had three thousand employees at Heathrow alone and employed some ninety-six pilots.
11. Captain Leslie, the applicant, was born on 13 January 1946. He was employed by the respondent BMI British Midland (British Midland) as an airline pilot. He had previously worked for Manx Airlines and his service with them was counted as service with British Midland. He was continuously employed from a date in April 1994 until his summary dismissal with effect from 26 January 2000.
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12. A letter of engagement was issued to him by British Midland dated 1 October 1996. This provided terms of employment including an entitlement to three-months notice to terminate his contract after he had completed six-months service.
13. Captain Leslie’s employment was governed by an agreement for service (AFS) which was incorporated by the letter of engagement into the contract of employment. This document contains more detailed provisions as to the terms and conditions of employment. In particular it provides for medical examinations, discipline and termination of service, grievance procedures and flight Time Limitations. We considered this document during the course of the hearing. At paragraph (A) Section 9, Part 1 the document says that:
“Pilots shall not be required to maintain medical standards higher than those required by the Civil Aviation Authority for the issue of a Commercial Pilots Licence, a Senior Commercial Pilots Licence or an Airline Transport Pilots Licence as appropriate.’
14. At Section 18 of Part 1 it provides:
(2) ‘In the event of any other incident, breach of discipline, regulations, etc, necessitating investigatory action, the reason for such action, together with any suspension and duration of same will be confirmed in writing to the pilot concerned within twenty-four hours of notification of the suspension.”
At Section E subparagraph (3) there is provision that the Company may service, or suspend from duties pending an investigation “any pilot Who shall,..
become through gross neglect or omission ……sick or disabled or otherwise unable properly to perform allocated duties or to do so without being a nuisance or menace to others (a certificate from a property qualified Medical Practitioner approved by the company and the Association being sufficient to evidence).”
This showed at least that on some occasions it may be necessary to have a medical examination of a pilot.
At Section H of Section 18 the agreement states:.
“The employment of a pilot shall not be terminated for medical reasons providing the medical standards laid down by the Civil Aviation Authority as necessary’ for the holding of the licence appropriate to the pilots employment are satisfied.”
The grievance procedure is contained within the document at Section 2O. There is provision for appeals in relation to disciplinary action in two stages.
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Case No; 2600427/01
15. In section 7 Part 2 of the agreement there are provisions as to the limits on time spent flying by pilots. This states that for reasons of avoiding fatigue pilots would not be required to fly more than three consecutive duties that occur in the period 0100 to 0659 local time.
16. Where accommodation was provided for pilots within 15 minutes travel time of the airport the prohibition covered duties occurring in the period 0100 to 0559 local time.
17. British Midland had introduced a written Code of Conduct for flight crew and other staff. This document, although not specifically agreed with Captain Leslie, set out procedures for resolving differences between flight crews and ground staff dealing with crewing of aircraft.
18. This in broad terms required disputes over crewing of aircraft to be referred to line managers by ether the pilot or the crewing department. If the dispute remained the duty should be completed and differences resolved afterwards.
19. Captain Leslie was licensed to fly aircraft by the Civil Aviation Authority (CAA) and its USA equivalent. The CAA licence required him to satisfy the CM from time to time as to his medical fitness to fly aircraft. We saw examples of his licence with the fact that medical examinations had taken place recorded upon them. Captain Leslie attended at a G.P’.s surgery for these medicals. The doctors at that practice were authorised and trained to provide acceptable medical examinations of pilots on behalf of both the CAA and its USA equivalent, Attending the same practitioners for these medicals also had the advantage of continuity from one examination to another.
20. The normal course of events was that British Midland would remind pilots of the need to have their medicals renewed and thereafter the pilot would choose which medical practitioner to go to.
3. The Tribunal heard evidence over the course of 3 days from the applicant, Captain John Leslie (Captain Leslie), Captain Clarke a pilot employed by the respondent (who accompanied Captain Leslie at disciplinary hearings, appeals and other meetings) Captain Lawrie the Crew Resource Manager of the respondent, Captain lain Cullen the respondents Chief Pilot and Mr Damien Fletcher, Company Personnel Manager. We also considered two substantial bundles of documents and a letter from a Dr Cresswell dated 19 September 2001, a copy of which was provided to both parties for comment prior to the Reserved Decision on 9 October 2001
9, We make the following findings of fact on the balance of probabilities.
13. The respondent is a well known household name company operating domestic and other flights from Heathrow Airport, 9ritish Midlands Airport end elsewhere. It had three thousand employees at Heathrow alone and employed some ninety-six pilots.
11. Captain Leslie, the applicant, was born on 13 January 1946. He was employed by the respondent BMI British Midland (British Midland) as an airline pilot. He had previously worked for Manx Airlines and his service with them was counted as service with British Midland. He was continuously employed from a date in April 1994 until his summary dismissal with effect from 26 January 2000.
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Case No: 2600427/01
12. A letter of engagement was issued to him by British Midland dated 1 October 1996. This provided terms of employment including an entitlement to three-months notice to terminate his contract after he had completed six-months service.
13. Captain Leslie’s employment was governed by an agreement for service (AFS) which was incorporated by the letter of engagement into the contract of employment. This document contains more detailed provisions as to the terms and conditions of employment. In particular it provides for medical examinations, discipline and termination of service, grievance procedures and flight Time Limitations. We considered this document during the course of the hearing. At paragraph (A) Section 9, Part 1 the document says that:
“Pilots shall not be required to maintain medical standards higher than those required by the Civil Aviation Authority for the issue of a Commercial Pilots Licence, a Senior Commercial Pilots Licence or an Airline Transport Pilots Licence as appropriate.’
14. At Section 18 of Part 1 it provides:
(2) ‘In the event of any other incident, breach of discipline, regulations, etc, necessitating investigatory action, the reason for such action, together with any suspension and duration of same will be confirmed in writing to the pilot concerned within twenty-four hours of notification of the suspension.”
At Section E subparagraph (3) there is provision that the Company may service, or suspend from duties pending an investigation “any pilot Who shall,..
become through gross neglect or omission ……sick or disabled or otherwise unable properly to perform allocated duties or to do so without being a nuisance or menace to others (a certificate from a property qualified Medical Practitioner approved by the company and the Association being sufficient to evidence).”
This showed at least that on some occasions it may be necessary to have a medical examination of a pilot.
At Section H of Section 18 the agreement states:.
“The employment of a pilot shall not be terminated for medical reasons providing the medical standards laid down by the Civil Aviation Authority as necessary’ for the holding of the licence appropriate to the pilots employment are satisfied.”
The grievance procedure is contained within the document at Section 2O. There is provision for appeals in relation to disciplinary action in two stages.
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Case No; 2600427/01
15. In section 7 Part 2 of the agreement there are provisions as to the limits on time spent flying by pilots. This states that for reasons of avoiding fatigue pilots would not be required to fly more than three consecutive duties that occur in the period 0100 to 0659 local time.
16. Where accommodation was provided for pilots within 15 minutes travel time of the airport the prohibition covered duties occurring in the period 0100 to 0559 local time.
17. British Midland had introduced a written Code of Conduct for flight crew and other staff. This document, although not specifically agreed with Captain Leslie, set out procedures for resolving differences between flight crews and ground staff dealing with crewing of aircraft.
18. This in broad terms required disputes over crewing of aircraft to be referred to line managers by ether the pilot or the crewing department. If the dispute remained the duty should be completed and differences resolved afterwards.
19. Captain Leslie was licensed to fly aircraft by the Civil Aviation Authority (CAA) and its USA equivalent. The CAA licence required him to satisfy the CM from time to time as to his medical fitness to fly aircraft. We saw examples of his licence with the fact that medical examinations had taken place recorded upon them. Captain Leslie attended at a G.P’.s surgery for these medicals. The doctors at that practice were authorised and trained to provide acceptable medical examinations of pilots on behalf of both the CAA and its USA equivalent, Attending the same practitioners for these medicals also had the advantage of continuity from one examination to another.
20. The normal course of events was that British Midland would remind pilots of the need to have their medicals renewed and thereafter the pilot would choose which medical practitioner to go to.
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21. The CAA as well as licensing pilots and aircrew also determined the way in which British Midland and ether airlines operated their services. In particular this included limitation on flight times for pilots such as Captain Leslie. There was a document issued by the CAA called CAP371 which prohibited flying more than three “early starts" unless hotel accommodation was provided within fifteen minutes of the airport. This requirement was reflected in the terms of the AFS,
22. On 28 July 2000 British Midland produced a roster for Captain Leslie which set out his work programme between 12 August and 8 September 2000.
23. During the early part of that period Captain Leslie was scheduled as away from work due to holidays and other leave. He was to return to flying with effect from 29 August 2000. His work for that day and the following three days involved him flying aircraft between East Midlands Airport and Dublin. Frankfurt, Paris and
Case No: 2600427/0 1
Edinburgh. Captain Leslie saw this schedule by the weekend of the 26/27 August 2000 and formed the view that the schedule required him to fly four successive days of early starts. His interpretation of this depended upon his belief that the hotel at which British Midland arranged for him to stay overnight in Edinburgh was more than fifteen minutes travel time from the airport. It was common ground between the parties that if the airport was more than fifteen minutes travel time away from the airport then his schedule involved four consecutive early starts and was, therefore, not permissible under flight limitations imposed by the CAA and also the AFS.
24. Equally, it was common ground that if the hotel was within fifteen minutes travel time then his departure time of 0445 hours would not qualify as an early start in Edinburgh and the schedule was permissible.
25. The hotel used was originally served by dedicated transport to the airport. There had been no difficulty in travel time exceeding fifteen minutes with that dedicated transport However, the crews were later required to use a hotel bus service. This change in practice increased the travel time beyond fifteen minutes. For this reason Captain Leslie believed that he was rostered for four early starts which was not permissible according to the AFS arid CAA rules.
26. On 28 August, the day before he was due to fly the first shift of the roster, Captain Leslie sent an e-mail message to Karen Dawson In the Crewing Section of British Midland. This note was also copied to Jan Benson in the same section. He made the point in the e-m& that he viewed the roster as not complying with CAP37I and he asks that the legality be checked and “alleviate my worries.” He makes the valid point that “if we are ignoring the approved FTL (Flight Time Limitations) Agreement we could find considerable amounts of egg on our faces if we have an incident.” He refers to the CAA taking a serious view of it. The ‘point of ‘contact in relation to such issues was the Crewing Section as was confirmed in the evidence we heard as well as the written procedures.
27. Captain Leslie went into the airport at British Midland on 1 September 2001 making telephone calls to Crewing Section on the way and try to resolve matters without success. We ware told that an Operations Manager was available twenty-four hours a day. There is in the bundle an Operational Notice dated 29 August 2000 confirming this. However, the correct procedure as far as Captain Leslie was concerned was to report to the Crewing Section, which he did. He attended the airport on 1 September 2001 and refused to fly.
28. On 31 August 2000 he had left a written note to his line manager, Captain Lawrie in his pigeon hole at East Midlands Airport making the same point namely, that he would refuse to take the flight because it was an illegal roster and that he would file a safety report. The tone of the message, which is hand written, is measured and ostensibly reasonable. In addition, Captain Leslie sent messages to an internet site called “One List” the guidelines of which we read. This was operated for pilots at British Midland. They were the only people who had access to the site and could only gain access by registration.
Case No: 2600427/01
29. We read the messages sent to British Midland pilots on the One List saying that he was required to fly four early flights and pointing out that anybody on standby should “be prepared to be called out.” He makes reference to “Richard”, namely Richard Hills, as Senior Manager and asks that he does something about it if he is “still around”. He says that he is a tired pilot refusing to fly and that he would be filing an air safety report to British Midland and a flight Time Limitation violation report to the CAA. He says that he is trying to be reasonable with the Crewing Section but calls and messages were not being answered. He points out that he has spoken to the British Airline Pilots Association (BALPA) and the CAA and, in his view, British Midland was infringing the FTL rules. He raises issues about insurance both personally and in relation to the aeroplane if there is a violation of flight time limitations.
30. Captain Hills, although a Senior Manager at British Midland, had access to the One List site. Apart from this the “One List” site was considered to be a site where pilots could communicate and it was common to exchange banter between the pilots.
31. Prior to his refusal to take the flight on 1 September 2000 Captain Leslie had checked the position with BALPA and the CAA by telephone. in due course Captain Leslie did file an air safety report with British Midland complaining of the rostering duties being in breach of the approved FTL Scheme and including details. This was not actioned by British Midland at any time to Captain. Leslie’s knowledge. In total, he had contacted Crewing, spoken to a Mr Thomas at the CAA, Shaun McHugh at BALPA and sent e-mails to Karen Dawson and Jan Benson in Crewing. He also tried to contact Fraser Sharman, Crewing Supervisor but was only able to make contact with an answering machine.
32. On 1 September 2000, before his arrival at East Midlands Airport, Captain Leslie telephoned ahead to say he would not be flying the scheduled flight. However, on his arrival he was expected to fly as scheduled but Captain Leslie refused to do this. The result was that the flight was delayed whilst a standby pilot was transported from Birmingham Airport to East Midlands. This caused delays to the flight in question and elsewhere in the British Midland schedule.
33. On 4 September 2000 Captain Lawrie learned of Captain Leslie's refusal to take the flight on 1 September 2000. He had by then seen the letter left for him by Captain Leslie on 31 August 2000. He made enquiries of the Personnel Manager, Rhona Coe, who advised on 5 September 2001 that the correct procedure was to hold a meeting to determine the facts. Accordingly, the same
day, Captain Lawrie telephoned Captain Leslie and asked him to attend such a meeting on 7 September 2000. On 5 September 2000 it was agreed that Captain Leslie would remain “off programme” in other words he would carry out no flying duties from then on. He had between 1 September 2000 and 5 September 2000 been engaged in training duties. Being “off programme” was not a suspension although it was similar in that Captain Leslie was given full pay but not actually required to fulfill any duties,
Case No: 2600427/01
34. On 7 September 2000 Captain Leslie attended the meeting at British Midland headquarters with Captain Lawrie, Rhona Coe and Captain John Robertson, London Heathrow Base Manager. On his arrival he formed the opinion that what he had expected to be a chat to iron out difficulties was In fact a formal meeting. He formed this view because three people were there, one from Personnel and Mr Robertson from Heathrow. Captain Leslie said that the roster provided to him contravened CAP37I, the CAA regulation on light times. He said that was because an early bus from the hotel to the airport meant that he was expected to do four consecutive early flights. He said that he had raised his concerns with the Crewing team. Captain Lawrie asked If he was aware of the Code of Conduct which required a duty to be completed and, thereafter. the issue raised with the line manager. Captain Leslie said that this Code had not been agreed with him nor agreed with BALPA.
35. The Code of Conduct provides that if there is a disagreement over duty assignments then this should be raised with a line manager. A second opinion could be sought from line managers if disagreement remained. The Code of Conduct had been introduced to try and avoid disputes Interfering with service provision and also to avoid loss of good relations in the workplace.
22. On 28 July 2000 British Midland produced a roster for Captain Leslie which set out his work programme between 12 August and 8 September 2000.
23. During the early part of that period Captain Leslie was scheduled as away from work due to holidays and other leave. He was to return to flying with effect from 29 August 2000. His work for that day and the following three days involved him flying aircraft between East Midlands Airport and Dublin. Frankfurt, Paris and
Case No: 2600427/0 1
Edinburgh. Captain Leslie saw this schedule by the weekend of the 26/27 August 2000 and formed the view that the schedule required him to fly four successive days of early starts. His interpretation of this depended upon his belief that the hotel at which British Midland arranged for him to stay overnight in Edinburgh was more than fifteen minutes travel time from the airport. It was common ground between the parties that if the airport was more than fifteen minutes travel time away from the airport then his schedule involved four consecutive early starts and was, therefore, not permissible under flight limitations imposed by the CAA and also the AFS.
24. Equally, it was common ground that if the hotel was within fifteen minutes travel time then his departure time of 0445 hours would not qualify as an early start in Edinburgh and the schedule was permissible.
25. The hotel used was originally served by dedicated transport to the airport. There had been no difficulty in travel time exceeding fifteen minutes with that dedicated transport However, the crews were later required to use a hotel bus service. This change in practice increased the travel time beyond fifteen minutes. For this reason Captain Leslie believed that he was rostered for four early starts which was not permissible according to the AFS arid CAA rules.
26. On 28 August, the day before he was due to fly the first shift of the roster, Captain Leslie sent an e-mail message to Karen Dawson In the Crewing Section of British Midland. This note was also copied to Jan Benson in the same section. He made the point in the e-m& that he viewed the roster as not complying with CAP37I and he asks that the legality be checked and “alleviate my worries.” He makes the valid point that “if we are ignoring the approved FTL (Flight Time Limitations) Agreement we could find considerable amounts of egg on our faces if we have an incident.” He refers to the CAA taking a serious view of it. The ‘point of ‘contact in relation to such issues was the Crewing Section as was confirmed in the evidence we heard as well as the written procedures.
27. Captain Leslie went into the airport at British Midland on 1 September 2001 making telephone calls to Crewing Section on the way and try to resolve matters without success. We ware told that an Operations Manager was available twenty-four hours a day. There is in the bundle an Operational Notice dated 29 August 2000 confirming this. However, the correct procedure as far as Captain Leslie was concerned was to report to the Crewing Section, which he did. He attended the airport on 1 September 2001 and refused to fly.
28. On 31 August 2000 he had left a written note to his line manager, Captain Lawrie in his pigeon hole at East Midlands Airport making the same point namely, that he would refuse to take the flight because it was an illegal roster and that he would file a safety report. The tone of the message, which is hand written, is measured and ostensibly reasonable. In addition, Captain Leslie sent messages to an internet site called “One List” the guidelines of which we read. This was operated for pilots at British Midland. They were the only people who had access to the site and could only gain access by registration.
Case No: 2600427/01
29. We read the messages sent to British Midland pilots on the One List saying that he was required to fly four early flights and pointing out that anybody on standby should “be prepared to be called out.” He makes reference to “Richard”, namely Richard Hills, as Senior Manager and asks that he does something about it if he is “still around”. He says that he is a tired pilot refusing to fly and that he would be filing an air safety report to British Midland and a flight Time Limitation violation report to the CAA. He says that he is trying to be reasonable with the Crewing Section but calls and messages were not being answered. He points out that he has spoken to the British Airline Pilots Association (BALPA) and the CAA and, in his view, British Midland was infringing the FTL rules. He raises issues about insurance both personally and in relation to the aeroplane if there is a violation of flight time limitations.
30. Captain Hills, although a Senior Manager at British Midland, had access to the One List site. Apart from this the “One List” site was considered to be a site where pilots could communicate and it was common to exchange banter between the pilots.
31. Prior to his refusal to take the flight on 1 September 2000 Captain Leslie had checked the position with BALPA and the CAA by telephone. in due course Captain Leslie did file an air safety report with British Midland complaining of the rostering duties being in breach of the approved FTL Scheme and including details. This was not actioned by British Midland at any time to Captain. Leslie’s knowledge. In total, he had contacted Crewing, spoken to a Mr Thomas at the CAA, Shaun McHugh at BALPA and sent e-mails to Karen Dawson and Jan Benson in Crewing. He also tried to contact Fraser Sharman, Crewing Supervisor but was only able to make contact with an answering machine.
32. On 1 September 2000, before his arrival at East Midlands Airport, Captain Leslie telephoned ahead to say he would not be flying the scheduled flight. However, on his arrival he was expected to fly as scheduled but Captain Leslie refused to do this. The result was that the flight was delayed whilst a standby pilot was transported from Birmingham Airport to East Midlands. This caused delays to the flight in question and elsewhere in the British Midland schedule.
33. On 4 September 2000 Captain Lawrie learned of Captain Leslie's refusal to take the flight on 1 September 2000. He had by then seen the letter left for him by Captain Leslie on 31 August 2000. He made enquiries of the Personnel Manager, Rhona Coe, who advised on 5 September 2001 that the correct procedure was to hold a meeting to determine the facts. Accordingly, the same
day, Captain Lawrie telephoned Captain Leslie and asked him to attend such a meeting on 7 September 2000. On 5 September 2000 it was agreed that Captain Leslie would remain “off programme” in other words he would carry out no flying duties from then on. He had between 1 September 2000 and 5 September 2000 been engaged in training duties. Being “off programme” was not a suspension although it was similar in that Captain Leslie was given full pay but not actually required to fulfill any duties,
Case No: 2600427/01
34. On 7 September 2000 Captain Leslie attended the meeting at British Midland headquarters with Captain Lawrie, Rhona Coe and Captain John Robertson, London Heathrow Base Manager. On his arrival he formed the opinion that what he had expected to be a chat to iron out difficulties was In fact a formal meeting. He formed this view because three people were there, one from Personnel and Mr Robertson from Heathrow. Captain Leslie said that the roster provided to him contravened CAP37I, the CAA regulation on light times. He said that was because an early bus from the hotel to the airport meant that he was expected to do four consecutive early flights. He said that he had raised his concerns with the Crewing team. Captain Lawrie asked If he was aware of the Code of Conduct which required a duty to be completed and, thereafter. the issue raised with the line manager. Captain Leslie said that this Code had not been agreed with him nor agreed with BALPA.
35. The Code of Conduct provides that if there is a disagreement over duty assignments then this should be raised with a line manager. A second opinion could be sought from line managers if disagreement remained. The Code of Conduct had been introduced to try and avoid disputes Interfering with service provision and also to avoid loss of good relations in the workplace.
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36. We saw notes taken of the meeting on 7 September 2000. Captain Leslie gave details of his complaints and what he had done to pursue them. They are recorded as a measured exchange of views and there was no record of any untoward appearance or behaviour on Captain Leslie’s part. In fact the notes end with Captain Leslie saying it may have been an “oversiqht on my part not to contact a Manager.”
37. Captain Lawrie determined that the matter required further explanation ‘and so he telephoned Captain Leslie on 8 September 2000 and advised him to attend a formal disciplinary interview on 13 September 2000. He described Captain Leslie as angry and aggressive and when told that he could be accompanied asked that a CAA or BALPA representative he present. He also said that he wanted to be represented by a solicitor.
38. On 9 September 2000 an e-mail was sent by Captain Leslie saying that Captain Clarke would represent him and that he had made BALPA aware of the position. A letter was sent by Captain Leslie 11 September 2000 to Austin Reid, Group Managing Director stating the position and complaining of a lack of information on what he is accused of and the formal nature of the meeting on 7 September 2000.
39 On 11 September 2000 a letter was sent by Captain Lawrie requiring him to attend a meeting on 13 September 2000. This was stated in a further letter from Rhona Coe of 12 September 2000 as being to ascertain the facts and that he is “off programme.”
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40. As Captain C!arke could not attend the meeting on 13 September 2000 it was postponed to 25 September 2000. What happened at the meeting was in dispute between the parties. we read the notes prepared by Rhona Coe and also notes by Captain Leslie, Apart from Captain Clarke being recorded as shouting a response at one point the minutes record Captain Leslie stating his case and nothing is recorded as to Captain Leslie’s conduct or attitude. We preferred Captain Leslie’s notes of the meeting which are more detailed.
41. On 27 September 2000 Captain Lawrie tried to contact Captain Leslie and through Captain Clarke arranged a further meeting for 29 September 2000. This meeting was attended by Captain Lawrie, Rhona Coe, Captain Robertson, Captain Clarke and Captain Leslie. It was explained that Captain Leslie would be given a written warning for the events of 1 September 2000. At the meeting Captain Leslie handed in a letter instituting an appeal. The ‘warning was confirmed by a letter of 29 September 2000 which was written after the meeting. The letter complains of the manner in which Captain Leslie’s complaint about FTL was raised both in the reference to the Internet site and the language used in relation to Chief Operations Manager Hogan and Flight Officer Hill. There is nothing, however, in the letter to record that Captain Leslie was considered unable to fly. indeed, Captain Lawrie said in evidence that he hoped that Captain Leslie would return to work the next day.
42. lt was an integral part of the “One List” to allow banter and free communication between parties. Captain Hills had confirmed when joining that he had understood this and that he was potentially open to banter criticising him if the pilots so chose. Captain Leslie’s appeal letter was repeated to Captain Linekar by a letter of 1 October 2000. However, at the end of the meeting on 29 September 2001 what was said between the parties was a matter of significant dispute. We heard from Captain Lawrie, Captain Leslie and Captain Clarke about this. Captain Lawrie reported that Captain Leslie had said he was “too stressed to be near an aeroplane.” We do not believe that Captain Leslie said this. It would be hard to understand how Captain Lawrie would be prepared to let him fly an aeroplane the next day if this was the case.
43. We find as a matter of fact that what was said was that whilst the disciplinary process continued, and it should be borne in mind that at the meeting he had already notified his intention to appeal, it would not be appropriate for Captain Leslie to fly
44. It was apparently standard practice for a pilot to be taken off programme during disciplinary action of any description. The fact was, therefore, that he would not be flying in any event as an appeal was continuing. It was dear at the meeting that Captain Leslie did not accept the written warning. Captain Lawrie expected Captain Leslie to fly the next day despite his appeal being notified that day. We accept what the applicant, Captain Leslie and Captain Clarke said that Captain Leslie did not use the word “stress” in such circumstances. We accept their version of events that Captains who are pilots would not use an expression like that in such circumstances. We. accept that British Midland did give a
Case No: 2600427/0 1
warning to Captain Leslie for the way he had raised his immediate concerns, in other words, not with the Flight Operations Manager and also by making communications to the “One List.” The tone and content of the “One List” communications were also reasons for that warning.
45. The appeal letter of 29 September 2000 was amended as to addressee only on 1 October 2000. in that letter Captain Leslie points out the procedural errors on British Midlands part and points out That he is entitled to two stages of appeal against the decision. He asserts that the procedures did not require him to give any grounds for his appeal but simply to give notice of it.
46. By 9 October 2000 a letter was sent to Captain Leslie saying that the appeal would be dealt with by Captain lain Cullen.
47. By a letter of 13 October 2000 Captain Leslie was notified of the hearing to take place on 18 October 2000 and was advised of his right to have a colleague accompany him at the meeting.
48. By an e-mail of 13 October 2000 Captain Leslie pointed out that he was entitled to more than one appeal hearing. This was accepted by Captain Cullen. Captain Cullen heard the first appeal, therefore, on 18 October 2000. The meeting was attended by Captain Cullen, Captain Clarke, Captain Leslie and Ms Mathewman. Captain Leslie produced a document for the appeal and was able to make additional comments. He sets out his grounds of appeal in detail and his version of the facts in an orderly manner.
49. At the end of the meeting Captain Leslie was advised that matters would be considered further and a letter would be sent to him advising him of the result. Captain Leslie is recorded as saying he felt that he was a safety risk as his mind ‘was elsewhere. This was the reason he had not flown. He and Captain Clarke agreed it was sensible not to fly and Captain Cullen concurred with this. Captain Clarke had no hesitation in expressing his view that he would have no reluctance in flying with Captain Leslie at any point of the process provided that he had a period of rest immediately after the meetings. He said that after a rest to the next day there would be no problem in flying with Captain Leslie as a pilot. There was clearly no decision, in our view, by Captain Cullen to stop Captain Leslie flying. Consensus was reached by three pilots who were in the best position to know. Captain Cullen never raised any question of him being too stressed to fly. All that was expressed was a perception of his anger and frustration during the meetings. We do not think that this was anything above and beyond what might be expected in all the circumstances.
50. On 19 October 2000 Captain Leslie went for a routine medical with the CAA approved doctor to confirm his continuing fitness to fly, He was passed as fit to continue flying, his next medical examinations were then due in April and July2001
37. Captain Lawrie determined that the matter required further explanation ‘and so he telephoned Captain Leslie on 8 September 2000 and advised him to attend a formal disciplinary interview on 13 September 2000. He described Captain Leslie as angry and aggressive and when told that he could be accompanied asked that a CAA or BALPA representative he present. He also said that he wanted to be represented by a solicitor.
38. On 9 September 2000 an e-mail was sent by Captain Leslie saying that Captain Clarke would represent him and that he had made BALPA aware of the position. A letter was sent by Captain Leslie 11 September 2000 to Austin Reid, Group Managing Director stating the position and complaining of a lack of information on what he is accused of and the formal nature of the meeting on 7 September 2000.
39 On 11 September 2000 a letter was sent by Captain Lawrie requiring him to attend a meeting on 13 September 2000. This was stated in a further letter from Rhona Coe of 12 September 2000 as being to ascertain the facts and that he is “off programme.”
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40. As Captain C!arke could not attend the meeting on 13 September 2000 it was postponed to 25 September 2000. What happened at the meeting was in dispute between the parties. we read the notes prepared by Rhona Coe and also notes by Captain Leslie, Apart from Captain Clarke being recorded as shouting a response at one point the minutes record Captain Leslie stating his case and nothing is recorded as to Captain Leslie’s conduct or attitude. We preferred Captain Leslie’s notes of the meeting which are more detailed.
41. On 27 September 2000 Captain Lawrie tried to contact Captain Leslie and through Captain Clarke arranged a further meeting for 29 September 2000. This meeting was attended by Captain Lawrie, Rhona Coe, Captain Robertson, Captain Clarke and Captain Leslie. It was explained that Captain Leslie would be given a written warning for the events of 1 September 2000. At the meeting Captain Leslie handed in a letter instituting an appeal. The ‘warning was confirmed by a letter of 29 September 2000 which was written after the meeting. The letter complains of the manner in which Captain Leslie’s complaint about FTL was raised both in the reference to the Internet site and the language used in relation to Chief Operations Manager Hogan and Flight Officer Hill. There is nothing, however, in the letter to record that Captain Leslie was considered unable to fly. indeed, Captain Lawrie said in evidence that he hoped that Captain Leslie would return to work the next day.
42. lt was an integral part of the “One List” to allow banter and free communication between parties. Captain Hills had confirmed when joining that he had understood this and that he was potentially open to banter criticising him if the pilots so chose. Captain Leslie’s appeal letter was repeated to Captain Linekar by a letter of 1 October 2000. However, at the end of the meeting on 29 September 2001 what was said between the parties was a matter of significant dispute. We heard from Captain Lawrie, Captain Leslie and Captain Clarke about this. Captain Lawrie reported that Captain Leslie had said he was “too stressed to be near an aeroplane.” We do not believe that Captain Leslie said this. It would be hard to understand how Captain Lawrie would be prepared to let him fly an aeroplane the next day if this was the case.
43. We find as a matter of fact that what was said was that whilst the disciplinary process continued, and it should be borne in mind that at the meeting he had already notified his intention to appeal, it would not be appropriate for Captain Leslie to fly
44. It was apparently standard practice for a pilot to be taken off programme during disciplinary action of any description. The fact was, therefore, that he would not be flying in any event as an appeal was continuing. It was dear at the meeting that Captain Leslie did not accept the written warning. Captain Lawrie expected Captain Leslie to fly the next day despite his appeal being notified that day. We accept what the applicant, Captain Leslie and Captain Clarke said that Captain Leslie did not use the word “stress” in such circumstances. We accept their version of events that Captains who are pilots would not use an expression like that in such circumstances. We. accept that British Midland did give a
Case No: 2600427/0 1
warning to Captain Leslie for the way he had raised his immediate concerns, in other words, not with the Flight Operations Manager and also by making communications to the “One List.” The tone and content of the “One List” communications were also reasons for that warning.
45. The appeal letter of 29 September 2000 was amended as to addressee only on 1 October 2000. in that letter Captain Leslie points out the procedural errors on British Midlands part and points out That he is entitled to two stages of appeal against the decision. He asserts that the procedures did not require him to give any grounds for his appeal but simply to give notice of it.
46. By 9 October 2000 a letter was sent to Captain Leslie saying that the appeal would be dealt with by Captain lain Cullen.
47. By a letter of 13 October 2000 Captain Leslie was notified of the hearing to take place on 18 October 2000 and was advised of his right to have a colleague accompany him at the meeting.
48. By an e-mail of 13 October 2000 Captain Leslie pointed out that he was entitled to more than one appeal hearing. This was accepted by Captain Cullen. Captain Cullen heard the first appeal, therefore, on 18 October 2000. The meeting was attended by Captain Cullen, Captain Clarke, Captain Leslie and Ms Mathewman. Captain Leslie produced a document for the appeal and was able to make additional comments. He sets out his grounds of appeal in detail and his version of the facts in an orderly manner.
49. At the end of the meeting Captain Leslie was advised that matters would be considered further and a letter would be sent to him advising him of the result. Captain Leslie is recorded as saying he felt that he was a safety risk as his mind ‘was elsewhere. This was the reason he had not flown. He and Captain Clarke agreed it was sensible not to fly and Captain Cullen concurred with this. Captain Clarke had no hesitation in expressing his view that he would have no reluctance in flying with Captain Leslie at any point of the process provided that he had a period of rest immediately after the meetings. He said that after a rest to the next day there would be no problem in flying with Captain Leslie as a pilot. There was clearly no decision, in our view, by Captain Cullen to stop Captain Leslie flying. Consensus was reached by three pilots who were in the best position to know. Captain Cullen never raised any question of him being too stressed to fly. All that was expressed was a perception of his anger and frustration during the meetings. We do not think that this was anything above and beyond what might be expected in all the circumstances.
50. On 19 October 2000 Captain Leslie went for a routine medical with the CAA approved doctor to confirm his continuing fitness to fly, He was passed as fit to continue flying, his next medical examinations were then due in April and July2001
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Case No: 2600427/01
51. On 20 October 2000 Captain Leslie was advised that his appeal had failed. His warning was upheld and British Midland were stated to be unimpressed with the “One List” communications.
52. On 23 October 2000 Captain Leslie appealed. Thereafter, he made complaint on 13 November 2000 by e-mail that the appeal was not being actioned and complained of the procedures adopted by the respondent as being “ramshackle.”
53. On 14 November 2000 the date of appeal was notified, Captain Leslie wrote to John Morgan Director of Safes and Marketing (who was to hear the appeal) on 22 November 200 by e-mail saying that the original complaint against him for not flying had not been proceeded with and the remaining matters were minor. He asks in effect that his warning is withdrawn.
54. On 23 November 2000 Captain Lawrie tells Damien Fletcher from Personnel about Captain Leslie saying he was too stressed on 29 September 2000. He sent an e-mail to Mr Morgan recording Captain Leslie saying he was “too stressed to go near an aeroplane”.
55. A further appeal hearing took place on 24 November 2000 and a letter sent dated 1 December 2000 confirming the appeal was refused. By a letter to Captain Leslie on 7 December Mr Morgan states that British Midland are concerned at the stress Captain Leslie is under and that British Midland would need to be sure that he is fit to return to work, ie to return to flying. The letter required a meeting to take place between Captain Lawrie and Captain Leslie. However, a letter of 7 December from Mr John Morgan, to Captain Lawrie was more specific and referred to the stress levels of Captain Leslie. In block capitals it said that Captain Leslie “Must not resume flying” until he has been medically certified as fit to do so.
56. On 6 December 2000 Captain Lawrie invited Captain Leslie to a meeting on 8 December. Rhona Coe was present at the meeting between Captain Lawrie and Captain Leslie. Prior to the meeting no mention was made to Captain Leslie of the requirement of a medical examination being set. in addition, before that date a review of all hotels used by flying staff had been carried out of which hotels were agreed into three categories, either within fifteen minutes of the airport, within fifteen minutes subject to dedicated transport being arranged and outside fifteen minutes. The hotel in Edinburgh was within the category which was within fifteen minutes only if dedicated transport was provided. This, in effect, justified Captain Leslie’s view which hid led him to refusing to fly. in other words, the process complained about by Captain Leslie did not comply with the CAA or AFS Flight Time Limitations.
57. Captain Lawrie sent a letter to Captain Leslie dated 8 December 2030 requiring three things of Captain Leslie; to accept the disciplinary sanction, to express a wish to move forward by improved communication skills with management and also confirm that he would attend a medical appointment,
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The letter confirmed that the medical was in addition to and independent of his valid CAA Class I medical. The letter points out that an appointment had been made with a Dr Medley in Nottingham for 12 January 2001. The letter does not say that this is due to Captain Leslie’s stress but that it is his attitude which continues to cause British Midland concern, Captain Leslie was required to confirm his agreement to these conditions by 15 December.
58. The mention of the requirement to have a medical examination during the meeting on 8 December caused Captain Leslie to leave the meeting abruptly arid Captain Lawrie described him as being “enraged.” Captain Lawrie described Captain Leslie as sifting in his car for a period after the meeting during which, it appeared to Captain Lawrie, Captain Leslie was composing himself. He accepted in evidence, however, that it was quite explicable by Captain Leslie making a telephone call. We accept Captain Leslie’s account that he was merely making a telephone call with the door of the car open. No doubt he did need to calm down after the meeting but this was due to being asked to do something which his contract did not require and for which there was no precedent with other pilots.
59. On 11 December 2000 Captain Leslie’s solicitor wrote to British Midlands saying he was fit to return to work and protesting about the disciplinary process. The solicitor says that he is certified as fit and that there is no need for a medical. Captain Leslie had previously advised this by an e-mail of 5 December 2000. A reply was made on 14 December 2000. In this letter British Midland say that this is not the first time that Captain Leslie’s attitude and behaviour caused concern. This apparently referred to an unrelated incident which about his attitude and behaviour. The letter points out that it was said that Captain Leslie was unfit to fly throughout the disciplinary process and, he would not fly during the course of any disciplinary action. In any event, if he was too stressed to do the job he would not be allowed to do it.
60. By a reply of 14 December 2000 the solicitors pointed out that Captain Leslie could not be compelled to have a medical.
61. On 15 December 2000 by e-mail Captain Leslie complained of the tone and content of the e-mail which he described as offensive. Again, on 15 December 2000 a letter was sent to the solicitors by the Personnel Manager, Darnien Fletcher.
62. On 16 December 2000 Captain Leslie ccnfirmed that he had had his medical for his CAA licence renewed and pointed out to British Midland that the requirement to have an additional medical was unreasonable and unfounded. He pointed out that he had consulted BALPA, who agreed with his view. He reminds British Midland of the terms of AFS and states that denying his return to work is unfair.
63. On 21 December 2000 it was pointed out by Mr Leslie’s solicitors that the doctor nominated by British Midland was not approved by the CAA. A letter of
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instruction was sent to Dr Medley on 9 January 2001 by Rhona Coe. This appointment was confirmed as still open to Captain Leslie on 12 January 2001. In the letter of instruction she describes Captain Leslie during the disciplinary process as physically shaking and with extreme redness, We do not accept this was the case. We do not accept that he was enraged to the point of incoherence as said by Rhona Coe. We accept the evidence of Captain Clarke and Captain Leslie. Captain Clarke witnessed anger and frustration on Captain Leslies part but at no time was Captain Clarke concerned about Captain Leslie’s demeanour. He stated his willingness to fly with Captain Leslie if required.
64. On 11 January 2001 Captain Leslie’s solicitor sent a fax message to British Midland saying it was not necessary for Captain Leslie to have a medical and makes clear that he holds a medical fitness certificate to say that he is fit to fly. Replies were sent to the solicitors arid Captain Leslie on 16 January 2001 confirming that British Midland would not let Captain Leslie fly without a medical examination, it was pointed out that a review would take place on 6 February 2001 and that this review could possibly result in termination of Captain Leslie’s employment. Responses were requested by 24 January 2001 so that these could be considered.
65. On 16 January, Captain Leslie went through a further medical with the CAA approved doctor which confirmed his fitness to fly. The medical had been conducted at the expense and instigation of Captain Leslie before it was due in the ordinary course of events. Copies were provided to British Midland on 19
January2001.
66. On 23 January 2001 a fax was sent by Captain Leslie to D mien Fletcher saying that Dr Medley was not qualified as a CAA medical examiner and it was unlikely that he had any aviation medics; qualifications. This was not disputed by British Midland. In fact the doctor had been nominated by it’s solicitors. Captain Leslie points out that he had his medical examination by a different doctor in the practice than the one he had seen in October 2000. The fax pointed cut in a polite way that British Midlands fears may be allayed by the medical
67. There was a doctor employed by British Midland, Dr Cresswell, who was a pilot medical officer. We were told during the hearing that British Midland did not refer Captain Leslie to him because of the potential for Dr Cresswell to fly as a pilot with Captain Leslie. We did not accept this as persuasive. in our view there was no reason why Captain Leslie could not have been referred to Dr Cresswell. We accept what Captain Leslie and Captain Clarke said. Captain Clarke himself explained he had been subject to an intimate medical examination by Dr Cresswell shortly before flying with him and this presented no difficulties for him or Dr Cresswell. Captain Leslie agreed with this. Captain Cresswell was obviously a pilot as well as a qualified doctor approved by the CAA and best able to judge.
68. After the close of the evidence put before the Decision Hearing on 9 October 2000 a letter was received from Dr Cresswell enquiring as to the
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evidence given. He had been told that evidence had been given that it would not be appropriate for him to conduct medical examinations of pilots. He could not understand this as he was the pilot medical officer. This confirmed the view already taken by the Tribunal from the evidence heard. We also understand that there was a Doctor Turnbull at the CM to whom Dr Cresswell could refer any pilot if necessary.
51. On 20 October 2000 Captain Leslie was advised that his appeal had failed. His warning was upheld and British Midland were stated to be unimpressed with the “One List” communications.
52. On 23 October 2000 Captain Leslie appealed. Thereafter, he made complaint on 13 November 2000 by e-mail that the appeal was not being actioned and complained of the procedures adopted by the respondent as being “ramshackle.”
53. On 14 November 2000 the date of appeal was notified, Captain Leslie wrote to John Morgan Director of Safes and Marketing (who was to hear the appeal) on 22 November 200 by e-mail saying that the original complaint against him for not flying had not been proceeded with and the remaining matters were minor. He asks in effect that his warning is withdrawn.
54. On 23 November 2000 Captain Lawrie tells Damien Fletcher from Personnel about Captain Leslie saying he was too stressed on 29 September 2000. He sent an e-mail to Mr Morgan recording Captain Leslie saying he was “too stressed to go near an aeroplane”.
55. A further appeal hearing took place on 24 November 2000 and a letter sent dated 1 December 2000 confirming the appeal was refused. By a letter to Captain Leslie on 7 December Mr Morgan states that British Midland are concerned at the stress Captain Leslie is under and that British Midland would need to be sure that he is fit to return to work, ie to return to flying. The letter required a meeting to take place between Captain Lawrie and Captain Leslie. However, a letter of 7 December from Mr John Morgan, to Captain Lawrie was more specific and referred to the stress levels of Captain Leslie. In block capitals it said that Captain Leslie “Must not resume flying” until he has been medically certified as fit to do so.
56. On 6 December 2000 Captain Lawrie invited Captain Leslie to a meeting on 8 December. Rhona Coe was present at the meeting between Captain Lawrie and Captain Leslie. Prior to the meeting no mention was made to Captain Leslie of the requirement of a medical examination being set. in addition, before that date a review of all hotels used by flying staff had been carried out of which hotels were agreed into three categories, either within fifteen minutes of the airport, within fifteen minutes subject to dedicated transport being arranged and outside fifteen minutes. The hotel in Edinburgh was within the category which was within fifteen minutes only if dedicated transport was provided. This, in effect, justified Captain Leslie’s view which hid led him to refusing to fly. in other words, the process complained about by Captain Leslie did not comply with the CAA or AFS Flight Time Limitations.
57. Captain Lawrie sent a letter to Captain Leslie dated 8 December 2030 requiring three things of Captain Leslie; to accept the disciplinary sanction, to express a wish to move forward by improved communication skills with management and also confirm that he would attend a medical appointment,
Case No: 2600427/01
The letter confirmed that the medical was in addition to and independent of his valid CAA Class I medical. The letter points out that an appointment had been made with a Dr Medley in Nottingham for 12 January 2001. The letter does not say that this is due to Captain Leslie’s stress but that it is his attitude which continues to cause British Midland concern, Captain Leslie was required to confirm his agreement to these conditions by 15 December.
58. The mention of the requirement to have a medical examination during the meeting on 8 December caused Captain Leslie to leave the meeting abruptly arid Captain Lawrie described him as being “enraged.” Captain Lawrie described Captain Leslie as sifting in his car for a period after the meeting during which, it appeared to Captain Lawrie, Captain Leslie was composing himself. He accepted in evidence, however, that it was quite explicable by Captain Leslie making a telephone call. We accept Captain Leslie’s account that he was merely making a telephone call with the door of the car open. No doubt he did need to calm down after the meeting but this was due to being asked to do something which his contract did not require and for which there was no precedent with other pilots.
59. On 11 December 2000 Captain Leslie’s solicitor wrote to British Midlands saying he was fit to return to work and protesting about the disciplinary process. The solicitor says that he is certified as fit and that there is no need for a medical. Captain Leslie had previously advised this by an e-mail of 5 December 2000. A reply was made on 14 December 2000. In this letter British Midland say that this is not the first time that Captain Leslie’s attitude and behaviour caused concern. This apparently referred to an unrelated incident which about his attitude and behaviour. The letter points out that it was said that Captain Leslie was unfit to fly throughout the disciplinary process and, he would not fly during the course of any disciplinary action. In any event, if he was too stressed to do the job he would not be allowed to do it.
60. By a reply of 14 December 2000 the solicitors pointed out that Captain Leslie could not be compelled to have a medical.
61. On 15 December 2000 by e-mail Captain Leslie complained of the tone and content of the e-mail which he described as offensive. Again, on 15 December 2000 a letter was sent to the solicitors by the Personnel Manager, Darnien Fletcher.
62. On 16 December 2000 Captain Leslie ccnfirmed that he had had his medical for his CAA licence renewed and pointed out to British Midland that the requirement to have an additional medical was unreasonable and unfounded. He pointed out that he had consulted BALPA, who agreed with his view. He reminds British Midland of the terms of AFS and states that denying his return to work is unfair.
63. On 21 December 2000 it was pointed out by Mr Leslie’s solicitors that the doctor nominated by British Midland was not approved by the CAA. A letter of
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instruction was sent to Dr Medley on 9 January 2001 by Rhona Coe. This appointment was confirmed as still open to Captain Leslie on 12 January 2001. In the letter of instruction she describes Captain Leslie during the disciplinary process as physically shaking and with extreme redness, We do not accept this was the case. We do not accept that he was enraged to the point of incoherence as said by Rhona Coe. We accept the evidence of Captain Clarke and Captain Leslie. Captain Clarke witnessed anger and frustration on Captain Leslies part but at no time was Captain Clarke concerned about Captain Leslie’s demeanour. He stated his willingness to fly with Captain Leslie if required.
64. On 11 January 2001 Captain Leslie’s solicitor sent a fax message to British Midland saying it was not necessary for Captain Leslie to have a medical and makes clear that he holds a medical fitness certificate to say that he is fit to fly. Replies were sent to the solicitors arid Captain Leslie on 16 January 2001 confirming that British Midland would not let Captain Leslie fly without a medical examination, it was pointed out that a review would take place on 6 February 2001 and that this review could possibly result in termination of Captain Leslie’s employment. Responses were requested by 24 January 2001 so that these could be considered.
65. On 16 January, Captain Leslie went through a further medical with the CAA approved doctor which confirmed his fitness to fly. The medical had been conducted at the expense and instigation of Captain Leslie before it was due in the ordinary course of events. Copies were provided to British Midland on 19
January2001.
66. On 23 January 2001 a fax was sent by Captain Leslie to D mien Fletcher saying that Dr Medley was not qualified as a CAA medical examiner and it was unlikely that he had any aviation medics; qualifications. This was not disputed by British Midland. In fact the doctor had been nominated by it’s solicitors. Captain Leslie points out that he had his medical examination by a different doctor in the practice than the one he had seen in October 2000. The fax pointed cut in a polite way that British Midlands fears may be allayed by the medical
67. There was a doctor employed by British Midland, Dr Cresswell, who was a pilot medical officer. We were told during the hearing that British Midland did not refer Captain Leslie to him because of the potential for Dr Cresswell to fly as a pilot with Captain Leslie. We did not accept this as persuasive. in our view there was no reason why Captain Leslie could not have been referred to Dr Cresswell. We accept what Captain Leslie and Captain Clarke said. Captain Clarke himself explained he had been subject to an intimate medical examination by Dr Cresswell shortly before flying with him and this presented no difficulties for him or Dr Cresswell. Captain Leslie agreed with this. Captain Cresswell was obviously a pilot as well as a qualified doctor approved by the CAA and best able to judge.
68. After the close of the evidence put before the Decision Hearing on 9 October 2000 a letter was received from Dr Cresswell enquiring as to the
Case No: 2600427/01
evidence given. He had been told that evidence had been given that it would not be appropriate for him to conduct medical examinations of pilots. He could not understand this as he was the pilot medical officer. This confirmed the view already taken by the Tribunal from the evidence heard. We also understand that there was a Doctor Turnbull at the CM to whom Dr Cresswell could refer any pilot if necessary.
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69. We were also told of a flight simulator test which was a realistic attempt to simulate a major stressful incident for pilots and other alrcrew to see how they could cope under pressure. Such tests were part of pilot training and updating. Indeed, if Captain Leslie was to return to flying after a three-month gap he would have had to have gone on the flight simulator training before tackling the real thing. We accept the evidence of Captain Cresswell and Captain Leslie that this was a classic opportunity to observe him in stressful situations and to respond accordingly if there were any concerns raised. He had previously performed the tests with exemplary marks.
70. Again, a Captain of an airliner also has a co-pilot and it would be possible for that co-pilot to observe and monitor the Captain’s performance as necessary.71. On 24 January 2001 there was a meeting between Captain Lawns and Damien Fletcher in which it was decided that there was no prospect of Captain Leslie agreeing to a medical examination and he would not, therefore, be allowed to return to work. He was summarily dismissed. British Midland relied on a right to terminate his employment under Part 1 o Section 18 of the Agreement for Service.
72. On 26 January 2001 a letter was sent to Captain Leslie informing him that his employment was terminated and gave reasons.
73. Captain Lawrie and Damien Fletcher decided that there was no room to manoeuvre over the medical and that there was no possibility to employ Captain Leslie elsewhere. On two occasions they considered that he had admitted to being stressed and unable to fly.SUBMISSIONS
74. We considered the detailed submissions put forward in writing by each of the parties prior to 9 October 2000.
70. Again, a Captain of an airliner also has a co-pilot and it would be possible for that co-pilot to observe and monitor the Captain’s performance as necessary.71. On 24 January 2001 there was a meeting between Captain Lawns and Damien Fletcher in which it was decided that there was no prospect of Captain Leslie agreeing to a medical examination and he would not, therefore, be allowed to return to work. He was summarily dismissed. British Midland relied on a right to terminate his employment under Part 1 o Section 18 of the Agreement for Service.
72. On 26 January 2001 a letter was sent to Captain Leslie informing him that his employment was terminated and gave reasons.
73. Captain Lawrie and Damien Fletcher decided that there was no room to manoeuvre over the medical and that there was no possibility to employ Captain Leslie elsewhere. On two occasions they considered that he had admitted to being stressed and unable to fly.SUBMISSIONS
74. We considered the detailed submissions put forward in writing by each of the parties prior to 9 October 2000.
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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.
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.
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80. Applying Section 98(4) of the Act we do not believe that the respondent acted reasonably in treating it as a sufficient reason for dismissing Captain Leslie. The respondent has substantial resources available to it.
81. We do not believe that British Midland set out to dismiss Captain Leslie for a health and safety reason. If that was their intention then, of course, Captain Leslie could have thwarted it at any time by accepting the written warning given. it would have expired in six months and to all intents and purposes that could have been the end of it. On the balance of probability we believe British Midland’s version. We do believe they handled the warning and the dismissal badly to the point of unfairness. The reason was that Captain Leslie had refused to attend a medical. Captain Lawrie and Mr Fletcher agreed between them that the Captain’s choice of medical adviser was displaced by the needs of the situation. We bear in mind that Mr Fletcher was, as were all of the Personnel Department, unused to dealing with pilot issues.
82. We have already found that the requirement to see Dr Medley was in breach of contract. We do not find that the dismissaI was for a medical reason. There is in our finding a distinction between the two. British Midland could not and did not say that Captain Leslie was unfit to fly. Their case was that they wanted to ensure he was not unfit to fly before he resumed flying duties. This was based on their observations of him in the disciplinary process which led to his disciplinary warning and his appeals against that.
83. As the reason is of a kind such as to justify the dismissal of an employee holding the position that Captain Leslie held. It is, therefore, a potentially fair reason.
84. We find that the dismissal is unfair. We take into account that British Midland is a substantial employer with substantial resources available to it at the time of the process leading to Captain Leslie's dismissal. !t had a dedicated Personnel Department and in-house medical adviser. It was s willing to buy in the advice of a consultant psychiatrist.
85 We find that the dismissal was unfair in the following respects:
(a) The failure to make use of the company doctor in determining whether Captain Leslie was fit to fly. This was not even explored with Captain Leslie and would have provided a possible neutral way out of the
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difficulties which arose. No doubt Dr Cresswell could have recommended a psychiatric opinion if such was required.
(b) The failure to consider the use of an appropriate practitioner at the CAA Dr Turnbull. An assumption seemed to have been made that there would be a tong waiting list. Both this referral to Dr Turnbull and Dr Creswell would have meant that a practitioner with appropriate experience and qualifications could give an opinion.
(C) The referral to Dr Medley. This was seen as intrusive and also having the potential to attach some stigma to Captain Leslie in the workplace. We note that when Mr Morgan wrote to Captain Leslie after the final appeal there is no mention of a psychiatric examination, only a meeting. We think this says that British Midland were aware of the way this suggestion would be seen by Captain Leslie and wanted to do it face to face. This did not make it any easier We believe the psychiatric examination was unjustified and was based upon assumptions of Captain Leslie’s conduct which were not borne out in reality. We believe it was an over reaction.
(d) The failure to hold a disciplinary hearing before a decision was made to dismiss. Captain Leslie had been invited to persona! hearings for the earlier matters leading to a warning but only written submissions for a hearing where he was dismissed. A personal meeting may have impressed the seriousness upon Captain Leslie and led to more meaningful discussions and a compromise being reached with another medical examination or other checks on Captain Leslie’s performance. A medical opinion could have been sought as to whether a psychiatric examination was required.
(a) The failure to consider Captain Leslie’s stress levels and ability to fly by wav of flight simulator tests.As Captain Leslie would have been required to do these before returning to actual flying we see this as a first practical step available to British Midland before Captain Leslie was allowed to fly and before a final decision was made to terminate his employment for refusing a medical. The insistence on seeing a psychiatrist with no track record so far as anyone knew in aviation medicine was not appropriate to resolve even the perceived problem British Midland had with Captain Leslie As we have found above, we believe British Midland exaggerated his apparent anger and frustration at the disciplinary procedure failings into something they were not. We heard from Captain Clarke who we found to he a credible witness that Captain Leslie's conduct during the disciplinary hearing and appeals did not cause him concerns. He, of course, could be viewed as partisan as he had supported Captain Leslie throughout. However, he said that he would have taken a different stance to the flight schedules provided to Captain Leslie in August even though he believed Captain Leslie was right to refuse to fly. He need not have disclosed that if he wished to make
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Captain Leslie’s case stronger by misleading us. He told us that if he was a co-pilot he would have been happy to accompany Captain Leslie on a flight as soon as a day after each hearing. In that situation his life and many others would have depended on Captain Leslie. We found that compelling. Mr Morgan as Marketing Director, who seemed to be the one who drove the need to have a medical examination, had no such experience neither did Mr lietcher. Although Captains Cullen and Lawrie did have such experience they were not moved to make such recommendations themselves at the time they observed Captain Leslie's behaviour. Captain Leslie in our finding showed only frustration at the process arid the refusal to allow him to return to flying. Captain Leslie was not classified as sick at any stage, neither were any medical certificates as to sickness sought. This reinforces our belief that with hindsight British Midland over emphasised Captain Leslie’s behaviour. We do not believe that Mr Fletcher and Captain Lawrie properly considered the effect of Captain Leslie having had two medical examinations by a CAA approved and qualified doctor. This was significant in that he was approved as able to fly but also shows with the medical on 16 January 2001 that Captain Leslie was willing to meet them half way at least.
f. The process leading the formal warning was flawed by failing to observe procedures. The initial informal meeting on 7 September 2000 was far from informal and should have been notified as a formal meeting to Captain Leslie in advance so that he had equal standing in it. CaptaIn Lawrie was accompanied by two advisers, Captain Leslie was alone. British Midland complained of the banter on the "One List” when it was intended as such a forum and identified as a medium for pilots to communicate in an informal and sometimes critical and jocular manner, Further British Midland failed to notice a second right of appeal until Captain Leslie pointed it out. British Midland failed to listen properly to what Captain Leslie was saying about the appropriateness of him flying during the disciplinary process. British Midland failed to acknowledge the steps taken by Captain Leslie to resolve matters before his refusal to fly. Although t was necessary to point out to pilots in a memorandum of 2S August 2000 that a manager was available 24 hours a day there was no evidence that Captain Leslie had seen that by 1 eptember 2000 and he took steps to deal with matters through the usual channels. These matters did not help the situation when the final decision was being taken to dismiss.
g. Relying upon previous conduct Leslie which had led to him apologisinq to another staf member. This was wholly untested in any disciplinary’ forum.
86. In reaching this conclusion we have reminded ourselves that safety is of paramount consideration in the aircraft industry and the consequences of an air disaster Should British Midland fail to adequately protect its operation from its
18
employees failings. We do not believe they acted reasonably in trying to do this in the case of Captain Leslie’s employment. We believe Captain Leslie acted reasonably in refusing to submit to a medical examination by Dr Medley. There were other choices for British Midland as we have set out above. There was a right for pilots to choose their own medical examiner and this is what Captain Leslie wanted to do. Dismissal was not within a range of reasonable responses open to a reasonable employer faced with Captain Leslie’s refusal.
87. Having found the dismissal unfair we now consider whether there is any reason to reduce Captain Leslie’s compensation because of any contribution to his dismissal by his conduct. We do not find that Captain Leslie acted other than properly in this matter. We take into account that pilots, including Captain Leslie, are intelligent and well paid employees, articulate and able to use their intellect and ability to express their position clearly. British Midland, however, drove the process which led to his dismissal and should have made more effort to accommodate his opinion as set out above. We do not find that there was any culpable or blameworthy behaviour by Captain Leslie. He was entitled to refuse the medical and did so. He tried to meet them halfway by having a CAA examiner medical when one was net necessary. His cornpensation should not, therefore, be reduced by reason of any contribution to his dismissal.
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81. We do not believe that British Midland set out to dismiss Captain Leslie for a health and safety reason. If that was their intention then, of course, Captain Leslie could have thwarted it at any time by accepting the written warning given. it would have expired in six months and to all intents and purposes that could have been the end of it. On the balance of probability we believe British Midland’s version. We do believe they handled the warning and the dismissal badly to the point of unfairness. The reason was that Captain Leslie had refused to attend a medical. Captain Lawrie and Mr Fletcher agreed between them that the Captain’s choice of medical adviser was displaced by the needs of the situation. We bear in mind that Mr Fletcher was, as were all of the Personnel Department, unused to dealing with pilot issues.
82. We have already found that the requirement to see Dr Medley was in breach of contract. We do not find that the dismissaI was for a medical reason. There is in our finding a distinction between the two. British Midland could not and did not say that Captain Leslie was unfit to fly. Their case was that they wanted to ensure he was not unfit to fly before he resumed flying duties. This was based on their observations of him in the disciplinary process which led to his disciplinary warning and his appeals against that.
83. As the reason is of a kind such as to justify the dismissal of an employee holding the position that Captain Leslie held. It is, therefore, a potentially fair reason.
84. We find that the dismissal is unfair. We take into account that British Midland is a substantial employer with substantial resources available to it at the time of the process leading to Captain Leslie's dismissal. !t had a dedicated Personnel Department and in-house medical adviser. It was s willing to buy in the advice of a consultant psychiatrist.
85 We find that the dismissal was unfair in the following respects:
(a) The failure to make use of the company doctor in determining whether Captain Leslie was fit to fly. This was not even explored with Captain Leslie and would have provided a possible neutral way out of the
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difficulties which arose. No doubt Dr Cresswell could have recommended a psychiatric opinion if such was required.
(b) The failure to consider the use of an appropriate practitioner at the CAA Dr Turnbull. An assumption seemed to have been made that there would be a tong waiting list. Both this referral to Dr Turnbull and Dr Creswell would have meant that a practitioner with appropriate experience and qualifications could give an opinion.
(C) The referral to Dr Medley. This was seen as intrusive and also having the potential to attach some stigma to Captain Leslie in the workplace. We note that when Mr Morgan wrote to Captain Leslie after the final appeal there is no mention of a psychiatric examination, only a meeting. We think this says that British Midland were aware of the way this suggestion would be seen by Captain Leslie and wanted to do it face to face. This did not make it any easier We believe the psychiatric examination was unjustified and was based upon assumptions of Captain Leslie’s conduct which were not borne out in reality. We believe it was an over reaction.
(d) The failure to hold a disciplinary hearing before a decision was made to dismiss. Captain Leslie had been invited to persona! hearings for the earlier matters leading to a warning but only written submissions for a hearing where he was dismissed. A personal meeting may have impressed the seriousness upon Captain Leslie and led to more meaningful discussions and a compromise being reached with another medical examination or other checks on Captain Leslie’s performance. A medical opinion could have been sought as to whether a psychiatric examination was required.
(a) The failure to consider Captain Leslie’s stress levels and ability to fly by wav of flight simulator tests.As Captain Leslie would have been required to do these before returning to actual flying we see this as a first practical step available to British Midland before Captain Leslie was allowed to fly and before a final decision was made to terminate his employment for refusing a medical. The insistence on seeing a psychiatrist with no track record so far as anyone knew in aviation medicine was not appropriate to resolve even the perceived problem British Midland had with Captain Leslie As we have found above, we believe British Midland exaggerated his apparent anger and frustration at the disciplinary procedure failings into something they were not. We heard from Captain Clarke who we found to he a credible witness that Captain Leslie's conduct during the disciplinary hearing and appeals did not cause him concerns. He, of course, could be viewed as partisan as he had supported Captain Leslie throughout. However, he said that he would have taken a different stance to the flight schedules provided to Captain Leslie in August even though he believed Captain Leslie was right to refuse to fly. He need not have disclosed that if he wished to make
17
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Captain Leslie’s case stronger by misleading us. He told us that if he was a co-pilot he would have been happy to accompany Captain Leslie on a flight as soon as a day after each hearing. In that situation his life and many others would have depended on Captain Leslie. We found that compelling. Mr Morgan as Marketing Director, who seemed to be the one who drove the need to have a medical examination, had no such experience neither did Mr lietcher. Although Captains Cullen and Lawrie did have such experience they were not moved to make such recommendations themselves at the time they observed Captain Leslie's behaviour. Captain Leslie in our finding showed only frustration at the process arid the refusal to allow him to return to flying. Captain Leslie was not classified as sick at any stage, neither were any medical certificates as to sickness sought. This reinforces our belief that with hindsight British Midland over emphasised Captain Leslie’s behaviour. We do not believe that Mr Fletcher and Captain Lawrie properly considered the effect of Captain Leslie having had two medical examinations by a CAA approved and qualified doctor. This was significant in that he was approved as able to fly but also shows with the medical on 16 January 2001 that Captain Leslie was willing to meet them half way at least.
f. The process leading the formal warning was flawed by failing to observe procedures. The initial informal meeting on 7 September 2000 was far from informal and should have been notified as a formal meeting to Captain Leslie in advance so that he had equal standing in it. CaptaIn Lawrie was accompanied by two advisers, Captain Leslie was alone. British Midland complained of the banter on the "One List” when it was intended as such a forum and identified as a medium for pilots to communicate in an informal and sometimes critical and jocular manner, Further British Midland failed to notice a second right of appeal until Captain Leslie pointed it out. British Midland failed to listen properly to what Captain Leslie was saying about the appropriateness of him flying during the disciplinary process. British Midland failed to acknowledge the steps taken by Captain Leslie to resolve matters before his refusal to fly. Although t was necessary to point out to pilots in a memorandum of 2S August 2000 that a manager was available 24 hours a day there was no evidence that Captain Leslie had seen that by 1 eptember 2000 and he took steps to deal with matters through the usual channels. These matters did not help the situation when the final decision was being taken to dismiss.
g. Relying upon previous conduct Leslie which had led to him apologisinq to another staf member. This was wholly untested in any disciplinary’ forum.
86. In reaching this conclusion we have reminded ourselves that safety is of paramount consideration in the aircraft industry and the consequences of an air disaster Should British Midland fail to adequately protect its operation from its
18
employees failings. We do not believe they acted reasonably in trying to do this in the case of Captain Leslie’s employment. We believe Captain Leslie acted reasonably in refusing to submit to a medical examination by Dr Medley. There were other choices for British Midland as we have set out above. There was a right for pilots to choose their own medical examiner and this is what Captain Leslie wanted to do. Dismissal was not within a range of reasonable responses open to a reasonable employer faced with Captain Leslie’s refusal.
87. Having found the dismissal unfair we now consider whether there is any reason to reduce Captain Leslie’s compensation because of any contribution to his dismissal by his conduct. We do not find that Captain Leslie acted other than properly in this matter. We take into account that pilots, including Captain Leslie, are intelligent and well paid employees, articulate and able to use their intellect and ability to express their position clearly. British Midland, however, drove the process which led to his dismissal and should have made more effort to accommodate his opinion as set out above. We do not find that there was any culpable or blameworthy behaviour by Captain Leslie. He was entitled to refuse the medical and did so. He tried to meet them halfway by having a CAA examiner medical when one was net necessary. His cornpensation should not, therefore, be reduced by reason of any contribution to his dismissal.
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The thing that concerns me about BM ... and commercial aviation, in general ... is the blatant disregard for rules by aircrew schedulers and management, and, the threat of dismissal and replacement from the line of starving and willing pilots if the currently-employed pilots do not comply and cheerfully violate the same rules.
Rules are written in blood. Crew rest rules are the result of air crashes where people died. Uninterrupted rest rules are the result of air crashes where people died. Time zone rules are the result of air crashes where people died.
Scheduling and management seem to regard rules as annoying violatable verbiage.
However, when we investigated the <A> crash, we noted six or seven rules violated by aircrew scheduling. Aircrew scheduling said that they asked the crew and the crew said it was okay. The crew was dead and could not defend itself.
However, when we investigated the <B> crash, we noted six or seven rules violated by aircrew scheduling. Aircrew scheduling said that they asked the crew and the crew said it was okay. The crew was dead and could not defend itself.
However, when we investigated the <C> crash, we noted six or seven rules violated by aircrew scheduling. Aircrew scheduling said that they asked the crew and the crew said it was okay. The crew was dead and could not defend itself.
However, when we investigated the <D> incident, we noted six or seven rules violated by aircrew scheduling. Aircrew scheduling said that they asked the crew and the crew said it was okay. Now, I was ON the aircraft involved. I was there when the crew said that, no, in fact, the violations of the rules were not okay. I was there when the aircrew schedulers threatened the aircrew ...
Hmm.
So, on Captain Leslie's fateful day ...
Captain Leslie was, once, again, faced with a willful violation of aircrew scheduling rules. Captain Leslie, once, again, pointed out the willful violation of aircrew scheduling rules. Captain Leslie was, once, again, told to sit down and shut up and fly or get fired.
And, people are bashing on the now-unemployed Captain Leslie who is alive [as are his passengers from that fateful day] because of what? He obeyed the rules?
Fatalities: All.
Statement: Aircrew scheduling stated that they asked Captain Leslie if it was 'okay' to violate the 'four early flights in a row' rule. Aircrew scheduling stated that Captain Leslie did not protest and said it was 'okay.'
*
Yaknow ... If I am not mistaken, Captain Leslie even tried to get state-of-the-art computerized aircrew scheduling software to help the aircrew schedulers; however, the aircrew schedulers could not be ... bothered?
So, Captain Leslie even tried to do the schedulers' job FOR them? And the thanks he gets is ... unemployment and a section 8?
Awesome!
Kinda reminds me of "Animal House":
"Face it, you screwed up, you trusted us!"
Rules are written in blood. Crew rest rules are the result of air crashes where people died. Uninterrupted rest rules are the result of air crashes where people died. Time zone rules are the result of air crashes where people died.
Scheduling and management seem to regard rules as annoying violatable verbiage.
However, when we investigated the <A> crash, we noted six or seven rules violated by aircrew scheduling. Aircrew scheduling said that they asked the crew and the crew said it was okay. The crew was dead and could not defend itself.
However, when we investigated the <B> crash, we noted six or seven rules violated by aircrew scheduling. Aircrew scheduling said that they asked the crew and the crew said it was okay. The crew was dead and could not defend itself.
However, when we investigated the <C> crash, we noted six or seven rules violated by aircrew scheduling. Aircrew scheduling said that they asked the crew and the crew said it was okay. The crew was dead and could not defend itself.
However, when we investigated the <D> incident, we noted six or seven rules violated by aircrew scheduling. Aircrew scheduling said that they asked the crew and the crew said it was okay. Now, I was ON the aircraft involved. I was there when the crew said that, no, in fact, the violations of the rules were not okay. I was there when the aircrew schedulers threatened the aircrew ...
Hmm.
So, on Captain Leslie's fateful day ...
Captain Leslie was, once, again, faced with a willful violation of aircrew scheduling rules. Captain Leslie, once, again, pointed out the willful violation of aircrew scheduling rules. Captain Leslie was, once, again, told to sit down and shut up and fly or get fired.
And, people are bashing on the now-unemployed Captain Leslie who is alive [as are his passengers from that fateful day] because of what? He obeyed the rules?
Fatalities: All.
Statement: Aircrew scheduling stated that they asked Captain Leslie if it was 'okay' to violate the 'four early flights in a row' rule. Aircrew scheduling stated that Captain Leslie did not protest and said it was 'okay.'
*
Yaknow ... If I am not mistaken, Captain Leslie even tried to get state-of-the-art computerized aircrew scheduling software to help the aircrew schedulers; however, the aircrew schedulers could not be ... bothered?
So, Captain Leslie even tried to do the schedulers' job FOR them? And the thanks he gets is ... unemployment and a section 8?
Awesome!
Kinda reminds me of "Animal House":
"Face it, you screwed up, you trusted us!"
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Awesome!
You must remember that you are dealing with a management team who are incapable of communicating with their employees. It is very much a bully boy culture and RH although he came in on the 'wind of change' has demonstrated himself to be an expert. What has happened is just the midland way. Ultimately you - the paying public - need to look at all aspects of an airline before you fly with them - what emphasis do they put on crew rest and flight time limitations. If in doubt fly with someone else , you have the choice most of the time - I certainly do. Now what was the FTL document that Ryanair use ............................................
The Employment Tribunal's report should is a 'tick list' of how to conduct yourself when confronted by an aggressive employer.
Essentially:
1. Stick to the rules at all times.
2. Confirm the purpose of any meeting with management in writing PRIOR to going into the office.
3. Have a witness present at all times.
4. Politely state your case and leave it at that.
Note that Captain Leslie did himself great service by being 'reasonable' in the eyes of the Tribunal.
I am so glad that all this is coming to light. It is dreadful of any airline to pressurise a Captain to break the rules. I had it done to me once and it was an appalling experience.
Essentially:
1. Stick to the rules at all times.
2. Confirm the purpose of any meeting with management in writing PRIOR to going into the office.
3. Have a witness present at all times.
4. Politely state your case and leave it at that.
Note that Captain Leslie did himself great service by being 'reasonable' in the eyes of the Tribunal.
I am so glad that all this is coming to light. It is dreadful of any airline to pressurise a Captain to break the rules. I had it done to me once and it was an appalling experience.
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What was it that they lied about Uncle Pete , I've read the report (0r at least the bits Grotehaasje has posted), but I can find no reference in the summing up.
And if it is true what penalties were awarded these people ?
Isn't this perjury ?
Or, have I missed something ?
And if it is true what penalties were awarded these people ?
Isn't this perjury ?
Or, have I missed something ?
Just a numbered other
The whole story at last, thank you John.
Interesting is the weight the tribunal place on the AFS as a contract of employment.
There may be trouble ahead
Interesting is the weight the tribunal place on the AFS as a contract of employment.
There may be trouble ahead