British Airways has lost its appeal at an Employment Appeal Tribunal at which lawyers for the airline challenged a section of the 2010 Equality Act on indirect discrimination.
The Appeal Tribunal judge upheld an earlier Employment Tribunal ruling against British Airways, which found the Equality Act should be interpreted to allow for “indirect associative discrimination” – meaning discrimination protections for female carers and mothers should be extended to male carers and fathers.
The two-day hearing in July saw both the women and equalities minister Bridget Phillipson and the Equality and Human Rights Commission (EHRC) both argue against the airline’s appeal.
The ruling was the latest stage in a long-running dispute between BA and 38 cabin crew who were subject to the carrier’s ‘fire and rehire’ policy during the Covid-19 pandemic. This is set for a full Employment Tribunal hearing early next year.
In the Tribunal judgement, Mrs Justice Eady found: “The ‘grain’ of the Equality Act is clear: it seeks to harmonise discrimination law and to strengthen the law to support progress on equality.”
The 2010 Equality Act made discrimination on the grounds of a “protected characteristic” unlawful – meaning discrimination on the grounds of “age, disability, gender reassignment, marriage and civil partnership, race, religion or belief, sex or sexual orientation”.
Lawyers for BA sought to challenge the interpretation of an amendment to the Act which added “indirect discrimination” against an individual without a ‘protected characteristic’.
Tara Grossman, partner at Kepler Wolf who is representing 30 of the claimants, thanked the EHRC and the government for their backing, saying: “Without this backing, they [the claimants] may not have been able to defend British Airways’ appeal.
“The decision of the Employment Appeal Tribunal president was speedy and resounding.
“Giving the right to fathers as well as mothers to challenge discriminatory practices of employers strengthens the law and means more employers will be held to account and forced to change these practices.”
The main proceedings involve a claim for damages of up £515 million by former Heathrow-based cabin crew who were among the 12,000 BA employees subject to ‘fire and rehire’ in 2020, when the airline forced many staff on to new contracts with reduced pay and changed terms and conditions.
BA scrapped its crew ‘Scheduling Agreement’, which gave cabin crew certainty about the time they would have off between flights, at the same time and introduced new requirements for crew to be on two-hour standby from Heathrow.
The airline’s actions drew widespread condemnation and subsequently saw BA’s then chief executive Alex Cruz replaced. An inquiry into BA’s treatment of staff by the Transport Select Committee of MPs concluded it was “a calculated attempt to take advantage of the pandemic”.