British Airways is taking on the government and the equalities watchdog at the Employment Appeal Tribunal over an associative discrimination case relating to its ‘fire and rehire’ decisions during the pandemic.
The Equality and Human Rights Commission has supported the claimants in Rollett and others vs British Airways since July 2023. The claimants, who worked as cabin crew for BA, are challenging changes the airline made to their employment terms and conditions in 2020.
These included less predictable working patterns and shorter periods at home between shifts, which the claimants alleged to be associative discrimination – for example, carers who needed to know whether they would be home or not in order to make alternative caring arrangements.
The new minister for women and equalities, Bridget Phillipson, also confirmed her support for counsel acting on behalf of the former crew to prevent BA challenging the rights of fathers and carers as part of the dispute.
Baroness Kishwer Falkner, chairwoman of the EHRC, said: “As Britain’s equality watchdog, we are involved in this case because of a legal concept known as indirect discrimination by association. Indirect discrimination by association means that a policy which discriminates against a protected group, such as women because they are more likely to be carers, also discriminates against those who aren’t part of that protected group but are disadvantaged by the policy. In this case, that would be men who are carers.”
Associative discrimination
Software exec awarded £90k for associative discrimination
Indirect disability discrimination: lessons from Follows v Nationwide
Indirect associative discrimination upheld for the first time
Protection from indirect associative discrimination is well-established in EU law but was not incorporated into UK law until recently when the previous government introduced Section 19A of the Equality Act 2010.
Section 19A grants protection from indirect discrimination by association and removes the need for complainants to make the argument by relying on EU law.
Falkner said: “At the Employment Appeal Tribunal, British Airways is arguing against the protections which are now contained in the new Section 19A. We have stepped in to support the claimants in countering those arguments.
“The minister for women and equalities was invited to intervene in the case by the judge, and we were pleased to see that she agreed with our position that protection from indirect discrimination by association is a primary part of the Equality Act and that the argument against it should be dismissed.
“As Britain’s equality regulator, we will always use our powers to uphold the rights of people to be protected from discrimination. We await the judgment in this case.”
The EAT began a two-day hearing yesterday (23 July) into BA’s appeal against an employment tribunal ruling in favour of former cabin crew who had responsibilities as carers when they were subject to BA’s “fire and rehire” of 12,000 employees during the pandemic.
The previous employment tribunal found the Equality Act should be interpreted to allow for “indirect associative discrimination”.
Scheduling agreement
BA abandoned its “scheduling agreement”, which had given cabin crew certainty about the time they would have off between flights, and required Heathrow staff to be on two-hour standby. The changes were introduced without consultation and cabin crew were allegedly forced to make decisions without full information.
A 2020 inquiry into BA’s treatment of staff by the transport select committee described it as “a calculated attempt to take advantage of the pandemic”.
Huw Merriman, then chair of the committee, said in June 2020: “The impact of coronavirus may sadly mean that the loss of some jobs in the aviation sector is justified. The behaviour of British Airways and its parent company, IAG, is not. It falls well below the standards expected from any employer, especially in light of the scale of taxpayer subsidy, at this time of national crisis. It is unacceptable that a company would seek to drive this level of change under the cover of a pandemic.
Kemi Badenoch, the former women and equalities minister, did not take a position on the case.
Tara Grossman, partner at law firm Kepler Wolf, said: “My clients are claiming BA took advantage of the uncertainty that the Covid-19 pandemic presented and pressurised them into making life-changing decisions based on threats regarding their long-standing terms and conditions.
“The airline is also now attempting to overturn a crucial protection under discrimination law which further impacts my clients’ pursuit of justice in this case.”
Last week, a statutory code of practice on “fire and rehire” came into force, although it remains to be seen how long it will apply in its current form as the Labour government has pledged to strengthen it.
The full hearing of the claim for damages by former BA staff is scheduled for early 2025.
Personnel Today has contacted BA for comment.
Sign up to our weekly round-up of HR news and guidance
Receive the Personnel Today Direct e-newsletter every Wednesday
HR jobs in the aviation sector on Personnel Today
Browse more HR jobs in the Aviation sector
