A Mile‑High Misjudgment: BA Crew Member Wins Unfair Dismissal Claim

March 3, 2026

A recent Employment Tribunal decision highlights the risks employers face when handling sensitive misconduct allegations without ensuring a properly robust investigation. In Dalkiran v British Airways plc, the Tribunal found that British Airways’ dismissal of a cabin crew member for alleged sexual misconduct was unfair, identifying significant flaws in the process, including an over‑reliance on the complainant’s distress, failure to test key inconsistencies, and appeal stages that simply repeated earlier mistakes. The judgment is a clear reminder that, even where allegations involve potential criminal conduct, employers must still ensure that disciplinary investigations remain thorough, procedurally fair and take into account relevant evidence emerging from any criminal proceedings.

Background

The events took place overnight on 14 – 15 August 2023 at the Crew Report/Rest Centre at London Heathrow. This 24‑hour facility provides open plan camp beds with partial panel dividers for crew resting between flights.

The allegation centred on “X”, a female crew member resting in the room when the Claimant, Mr Dalkiran attended. X later reported that she believed she saw the Claimant engaging in inappropriate sexual activity and exposing himself on the bed next to hers. She left the room and asked a colleague, Mark Finnegan, who was also present, whether he had seen what she believed she witnessed. He had not. The two went for a cigarette, returning ten minutes later to find the Claimant asleep. X then moved to a different bed and messaged a friend describing what she believed had occurred.

The following day, X reported the matter to a manager, and an internal investigation began. Approximately two weeks later, on 2 September 2023, the Claimant was arrested at the airport and charged with indecent exposure.

At an initial investigation meeting on 27 September 2023, the Claimant consistently denied the allegation, explaining that he had been resting, watching TV on his phone, leaving periodically for cigarettes, and then sleeping. He told the investigating officer, Mr Souza, that although X might genuinely believe something had occurred, she must be mistaken. He also reported that he had participated in a police identity parade and X had not picked him out. He highlighted factual inaccuracies in X’s account, for example, her claim that he slept on his left side, which he said he could not do due to a back problem.

X’s key witness, Mr Finnegan, was interviewed on 5 October 2023. He confirmed X had approached him but that he had seen nothing. The BA investigation was paused shortly after due to the pending criminal proceedings.

On 20 November 2023, the Claimant was found not guilty at the Magistrates’ court. The Magistrates’ court took into account body‑worn footage of the room layout, the low lighting conditions, the blankets on the partitions restricting visibility, and the presence of others who neither saw nor heard anything. They ultimately concluded that it was not likely the incident occurred as X described.

Following the acquittal, BA resumed its internal process, interviewing X in December 2023 and holding an internal investigation meeting with the Claimant.

The disciplinary hearing was conducted by Ms Laura Holloway in February 2024. She accepted X’s account, concluding that the alleged conduct occurred and dismissed the Claimant on 9 April 2024. Two internal appeals followed, first by Ms Rosa Muccio, who upheld the dismissal, and then a second appeal, ultimately overseen by Mr Richard Leaves after significant delays. Only the point of delay was upheld, the dismissal itself was maintained.

Tribunal Decision

The Tribunal held that the dismissal was unfair. Key findings included:

1. Failure to obtain details from the Magistrates’ court

    Ms Holloway failed to obtain any details from the Magistrates’ court in order to investigate whether what was being said by the Claimant was accurate. The Tribunal determined that BA’s lack of obtaining a true understanding of what was said at the criminal trial was a serious failing in the disciplinary process and fell short of a reasonable process.

    2. Gaps in the disciplinary process

    During the disciplinary investigation and hearing meetings, BA did not:

    • meet with X or Mr Finnegan to ask any questions during the investigation;
    • take into account relevant evidence including the darkness of the room, lack of other witnesses and the consistency of the Claimant’s version of events.
    • meaningfully explore inconsistencies in X’s account.
    • Critical failures in testing credibility

    Ms Holloway’s belief in X’s account rested heavily on the emotional impact on X and the fact she sent a contemporaneous message to a friend. The Tribunal found this insufficient.

    3. Appeal processes failed to correct the errors

    The Tribunal found that the appeal was not open minded or considered. The first appeal simply repeated the original errors, continuing to rely on X’s emotional response as a measure of credibility. The Tribunal determined that the further appeal processes, despite further steps being taken, still failed to correct the procedural flaws in the disciplinary process.

    Lessons for Employers
    1. Emotional impact cannot substitute for evidence – a complainant’s distress may form part of the assessment, but it cannot replace a proper assessment of facts, inconsistencies, and context.
    2. Consider external proceedings carefully – where disciplinary allegations overlap with a criminal case, employers should consider details from criminal proceedings as part of the disciplinary investigation process.
    3. Ensure appeals are genuinely corrective – appeal officers must conduct a genuinely fresh and independent review of the case. A sufficiently thorough appeal can, in some instances, remedy procedural defects from an earlier stage. Where an employer aims to remedy procedural defects or gaps in the original hearing, it is often advisable for the appeal to be conducted as a full rehearing rather than a simple review.

    How we can help

    For further information, or to discuss the issues raised in this case, please contact us to speak to a member of our Employment Team.

    Darren Smith
    Partner, Employment
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