Government and Equality Commission line up against British Airways

British Airways is taking on the government and the UK equality regulator, the Equality and Human Rights Commission (EHRC), by attempting to overturn a protection against ‘indirect discrimination’ which forms part of the 2010 Equality Act.

An Employment Appeal Tribunal began a two-day hearing on Tuesday (July 23) into a BA appeal against an earlier 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 Covid-19 pandemic.

The EHRC and the new minister for women and equalities, Bridget Phillipson, confirmed their support for lawyers acting on behalf of the former crew to prevent BA challenging the rights of fathers and carers under anti-discrimination law as part of a long-standing dispute between BA and 38 cabin crew.

The previous Tribunal found the Equality Act should be interpreted to allow for “indirect associative discrimination”.

Lawyers for BA are seeking to challenge the legal basis for Section 19A of the 2010 Equality Act on ‘indirect discrimination’.

The 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”.

Section 19A of the Act was added in an amendment to include “indirect discrimination” against an individual without a ‘protected characteristic’ but with responsibilities as a carer.

The case forms part of a claim for up to £515 million in damages on behalf of Heathrow-based cabin crew who are suing BA over its ‘fire and rehire’ policy in 2020, when the airline forced many 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 changes were introduced without consultation and crew forced to make hurried decisions without full information.

The practice drew widespread condemnation and a subsequent 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”.

In a statement today, Equality and Human Rights Commission chairwoman Baroness Kishwer Falkner said: “British Airways is arguing against the protections which are now contained in the new Section 19A [of the Equality Act].

“We have stepped in to support the claimants in countering those arguments.”

She noted: “The Minister for Women and Equalities was invited to intervene in the case by the judge. 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.”

The minister for women and equalities in the previous government, Kemi Badenoch MP, had decided not to take a position on the case.

Baroness Falkner added: “As Britain’s equality regulator, we will always use our powers to uphold the rights of people to be protected from discrimination.”

Tara Grossman, partner at Kepler Wolf who is representing 30 of the claimants, 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.”

She noted: “My clients are grateful to the EHRC, who have supported this case since July 2023 and provided funding and expertise throughout, and to the UK Government for its recent intervention.”

The cases the Appeal Tribunal will consider include those of Chris Cooper, a customer service leader on BA’s long-haul fleet who had been employed by the airline for 30 years and had caring responsibilities for his mother and brother; and Britt O’Brien, a senior cabin crew member on long haul and employed for more than 30 years, who had caring responsibilities for her husband, daughter and parents in law.

The main hearing of the claim for damages by former BA staff is scheduled for February to March 2025.