Claimant v British Airways plc

The first claimant withdrew her claim of indirect race discrimination during the hearing.

The tribunal found that the claimants did not establish group disadvantage for any of the six PCPs alleged (mixed flying, unclear scheduling, ballot requirement, pay reduction, shift patterns, unequivocal acceptance requirement). The tribunal found the claimants' evidence unclear as to how mixed flying disadvantaged both a previously short-haul only and a previously long-haul only worker, and found no persuasive evidence that the PCPs particularly disadvantaged women due to childcare responsibilities in the context of the complex and unpredictable scheduling inherent in cabin crew work.

The tribunal found no group disadvantage established. The claimants argued that Legacy Fleet workers (predominantly over 39) were disadvantaged compared to Mixed Fleet workers (predominantly under 39) by the imposition of new terms. However, the tribunal found the respondent's justification defence succeeded in any event: the move to one fleet with harmonised terms was a proportionate means of achieving the legitimate aim of business survival during the unprecedented Covid-19 crisis, which devastated the aviation industry and the respondent's finances.

The claimants failed to shift the burden of proof. The tribunal found that the reason for the dismissals and less favourable treatment was the respondent's desire to harmonise terms and conditions and remove the Legacy Fleet structure, not the age of employees. The fact that Legacy Fleet employees tended to be older was a consequence of the 2010 closure of those fleets to new entrants, not evidence of age discrimination. The tribunal distinguished the case from Donkor, finding no indissociable link between age and the treatment.

The part-time workers claims failed. For the first claimant, the threatened removal of the 33% contract did not amount to a detriment as she expected (correctly) that the union would negotiate its retention, and it was retained before her dismissal. The change from 14/28 to 21/42 roster pattern was not shown to be a detriment, and in any event was not on the ground of part-time status as full-time workers were also moved to 21-day scheduling blocks. For the second claimant, the change from 28/28 to 21/21 was not shown to be a detriment and was likewise not on grounds of part-time status.

The tribunal found the reason for dismissal was some other substantial reason (refusal to accept new terms collectively bargained via the RMA), not redundancy. The dismissals were not unfair. Individual consultation was offered but not taken up by the claimants. Consultation during furlough was permissible. There was no alternative employment available given mass redundancies across the business. The Redeployment Agreements were reasonably disapplied given the unprecedented crisis. No right of appeal was required where claimants had refused new terms. The dismissals fell within the range of reasonable responses.

The second claimant's wrongful dismissal claim failed because she accepted the alleged repudiatory breach by acting inconsistently with the continuation of her contract. In emails dated 2 October and 6 November 2020, she referred to being 'made redundant', requested 'reinstatement' and 're-employment', demonstrating acceptance that her employment had ended on 30 September 2020.