O’Dalkiran v British Airways plc: 6007777/2024

British Airways cabin crew member who allegedly masturbated at Heathrow Airport unfairly dismissed

A British Airways cabin crew member was dismissed for alleged gross misconduct after a colleague reported that she saw him masturbating in a crew rest facility at Heathrow Airport. The employee denied the allegation. Criminal proceedings were brought but he was acquitted. BA nevertheless pursued its internal disciplinary process and dismissed him.

BA’s investigation was conducted internally by internal managers rather than by an external investigator. The Tribunal criticised the investigation and found significant shortcomings.

The Claimant brought a claim for unfair dismissal in the Employment Tribunal. The Tribunal upheld his claim, finding that the airline did not have a reasonable basis, following a reasonable investigation, for concluding that the misconduct had occurred.

First, very surprisingly, the complainant was not met or spoken to directly. Again, very surprisingly, credibility findings were therefore made on the basis of written accounts rather than through first-hand assessment. In a case turning almost entirely on one person’s observation in a dimly lit room, that was a material weakness said the Tribunal.

Second, the Tribunal found that the claimant’s explanation had not been properly understood or fairly characterised. The decision-maker proceeded on a mistaken understanding of key aspects of his defence. BA could not have formed a reasonable belief if it has not accurately grasped the employee’s central account before rejecting it.

Third, the investigation placed substantial weight on the complainant’s distress. While the Tribunal accepted that she was genuinely upset, it held that emotional impact is not proof of the facts or misconduct. Distress may explain why a complaint is made, but it is not corroboration of what actually occurred.

Fourth, there was limited corroborative evidence. No other witnesses reported seeing or hearing anything. Environmental factors, including the lighting conditions, were relevant but not sufficiently analysed before reaching a finding of gross misconduct.

Taken together, these failings meant that BA’s belief in the employee’s guilt was not based on a reasonable investigation. The dismissal therefore fell outside the band of reasonable responses open to a reasonable employer.

For employers this is a sharp reminder: credibility must be tested, explanations must be properly understood, and emotional reaction must never substitute for evidence. If the investigation had been conducted properly there may have been a different outcome in respect of the same events.

Mr O’Dalkiran v British Airways plc 

Judgment: https://lnkd.in/dCNiwYcm