Employment Law Case Update: Conclusive Investigations into Employee Conduct

Workplace gossip and so called "banter" are an employers nightmare, and there is a fine line before it can become the foundations of a tribunal claim.  The Employment Law team here review the case of Lawson v Virgin Atlantic Airways and discuss how workplace gossip can cloud an employee dismissal and end in tribunal.

Mr Mark Lawson, a pilot for Virgin Atlantic Airways was dismissed in May 2017. On 25 September 2015, he flew with two co-pilots from Heathrow to Hong Kong. After the flight, rumours began to circulate among his colleagues that he had fallen asleep while his co-pilots were out of the flight deck. Mr Lawson asserted that these rumours were untrue, but that “his colleagues were reluctant to work with him as a result.”

On 12 October 2015, Virgin Airways began an investigation into the rumours, standing Mr Lawson down from flying from then until 3 November 2015. He “was not told that he had done anything wrong and was not placed under any restrictions.” Virgin Airways never published the results of the investigation, while Mr Lawson said it was normal practice to publish a report.

The rumours and gossip continued and in a meeting on 13 October 2015 Mr Lawson was asked “if he had taken ‘40 winks while the FO’s [flight officers] were out of the flight deck?’”. Mr Lawson said the absence of a report meant he could not properly defend himself; as a consequence, he began to suffer stress and anxiety, later diagnosed as an adjustment disorder.

On 9 and 10 April 2016, Mr Lawson underwent flight simulation assessment and failed. Re-tested on 3 May, he failed again. It is these failed tests that Virgin Airways cites as the reason for Mr Lawson’s dismissal on 19 May 2017.

Mr Lawson claimed he should not have failed, that the assessor was unnecessarily aggressive, and that [Virgin Airways] was “out to get him and rigged the sim”. He then brought a claim for unfair dismissal and for disability discrimination to the Employment Tribunal (ET).

In January 2019, the ET considered Mr Lawson’s disability discrimination claim, ruling that he was not disabled on the dates of the flight simulations. The ET also found that on these dates Mr Lawson was suffering from “a reaction to adverse circumstances”, accepting that at the time Mr Lawson was dismissed, he had been diagnosed with an adjustment disorder and had a mental impairment. However, the ET found that this impairment did not have “a substantial and long-term effect on his ability to carry out normal day to day activities.”

His disability discrimination claim was therefore dismissed.

However, at the Employment Appeal Tribunal (EAT) his unfair dismissal claim was reinstated. The EAT said the rumours about Mr Lawson were “untrue, but his colleagues were reluctant to work with him.” Mr Lawson is claiming £1.7 million and this case will be heard at a later date. 

The importance of properly concluding investigations into employee conduct can’t be overstated. A conclusive final report helps put an end to workplace gossip, minimising accusations of unfair dismissal. 

If you have any questions regarding this article, you can call our Employment team today on 023 8071 7717 or email employment@warnergoodman.co.uk.

This was previously part of our weekly Employment Law Newsletter. If you would like to subscribe, please email us at events@warnergoodman.co.uk or just fill in our subscription form.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.