After failing to give her enough notice of her dismissal, a software developer in Cheshire was fired unfairly after she was denied a request to be able to work at home from Pakistan.
Miss Akhtar started working as a.NET programmer for Calrom in 2017, which is a software provider for airlines.
The Manchester employment court heard that there was “some sort of dispute” about Akhtar’s wish to sit near an open office window, as she claimed to suffer from anaemia.
The claimant experienced a “near faint episode” or “panic attacks” on 31 January 2020. She was treated by paramedics, but not hospitalized. Instead she was advised to consult her GP. She returned to her job on 20th February, and received a Dyson Fan after she complained about feeling claustrophobic and too hot in the office.
Calrom, in response to the Covid pandemic and its impact on the aviation sector, furloughed the majority of its employees including Akhtar on April 1, 2020.
Calrom will select a few employees in July 2020 to return to work. Akhtar was one of those employees, but asked for her furlough to be extended until October 2020.
She said that she was “in poor health” and requested a career break under an old policy, which predated the pandemic.
Calrom granted the request, and on 21 August she began her career-break. It is scheduled to conclude on 31 January 2021. In December 2021, she returned to Pakistan with her family.
Career break extension
She requested that the break be extended to May 2021 in order to complete a “online language class” she claimed was “beneficial to her wellbeing”. Calrom granted her request but then she asked for a second extension until January 2022 due to her health.
Akhtar received a warning that he was unlikely to receive a further extension. Calrom informed her that she would require retraining upon her return due to the length of time spent away from her career.
Akhtar expressed concerns to her managers in January 2022 about her ability return to work on schedule. She said that she suffered another panic disorder in October of the previous year and was awaiting a cognitive behavioral therapy (CBT), which would last six to 12 weeks.
She wrote, “I cannot live on my own due to my poor health and need family support.” According to my health, I see two possible options for work, as described below. However, I am open-minded to other suggestions.
“Work from my home in Pakistan until I complete my CBT course, and my health has improved to the point that I am able to return to the UK. But I’d like to draw your attention to the fact that working from Pakistan could be challenging, as I live in a very small town with a limited infrastructure.
There may be unexpected issues with internet connectivity, internet speed or power outages during the day. It will be difficult to adjust due to the time difference. I also have no family in Lahore and my main reason for being here is so that they can support me.
Additional extension
Lorraine Astbury (Calrom’s Chief HR Officer) replied, confirming that working at home in Pakistan was not an option. The career break was extended “for the final time” until 31 August 2022.
She wrote: “This means that the length of your break has been two years.” If you cannot return at that time, we will review your ability to perform the role according to our capability policy.
In July 2022, the claimant sent communications indicating that she was “in a better place”. She expected to return to Britain by mid-August to resume her Calrom employment. Akhtar, however, told the tribunal she was more ill as the date for her return approached.
She said that she was unable to return to the UK on her own, and she had started to plan a trip to the UK to be with her parents. It would take them weeks to get visas, and they’d have to apply.
Calrom held internal discussions on what to do. The claimant was to be informed via email that the career break she had received would not be renewed. However, the tribunal judgement states that it was agreed that the email would only be sent once the decision was made and approved.
The tribunal found that the delay was deliberately imposed, knowing that if she had known earlier, there would have been little chance of making arrangements for her travel.
“Impossible compliance”
The judgment stated that termination of employment was inevitable if the claimant did not comply. Akhtar’s dismissal came the day before her return to work.
Helen Cookson, Employment Judge at the time, said that Calrom had failed to consider alternative ways to dismiss her and hadn’t explained their concerns adequately.
The panel stated: “We accept that the respondent has good reason to doubt whether the claimant can work from home in Pakistan. However, given that this suggestion was raised, we considered that a reasonably employer would have at least explained their concerns to the applicant to give her a chance to explain what had changed, or to present other mitigating circumstances, or even to make other obvious suggestions such as allowing her to take some of the accumulated holidays at the beginning of her official return, to facilitate her physical return to the UK.”
The panel of the tribunal concluded that the respondent’s approach was fundamentally unfair.
Akhtar won his claim for unfair dismissal, but the claims of disability discrimination were rejected as not well-founded.
Compensation will be decided later, but it was stated by the tribunal that they would need to determine how likely it is for the claimant to be dismissed, even if the fair procedure has been followed. They would also have to decide if it would be fair and just to adjust the amount due to the claimant.
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