The Guardian reports that:
A group of BA flight attendants is claiming that the removal of discounted travel from strikers discriminates indirectly against employees based in Scotland, Ireland and mainland Europe who use the scheme to commute to and from Heathrow airport. The group, called Crew Defence, is representing 75 employees who are lodging cases with an employment tribunal in Reading and plan to sue for compensation if their claim is upheld.
This is a bold claim, but it may be successful in crossing the first hurdle of showing that BA are applying a provision, criteria or practice which is applied equally but puts (for example) Scottish people at a disadvantage. It would then be for BA to show that the treatment is justified. Much will depend on the nature and context of the scheme and its removal. To use an example, if a factory in Carlisle provides a free employee bus from Kendal, can a wannabe employee in Dumfries make a complaint?
The employer is likely to agree that its practice of failing to provide a bus from Dumfries affects far more Scottish people than English, but would argue that it has a legitimate objective (attracting and retaining employees), and it is proportionate to achieve that objective by providing that one bus from Kendal. The employer might well claim, if it is small, that it can only afford the one bus and clearly that bus will either set off in England or set off in Scotland. That itself could constitute justification, but would be bolstered by a rational explanation of why Kendal was chosen in the first place.
Hmm. I am not sure that it is possible to argue that a change from one PCP to another is itself a PCP – see the case of ABN-AMRO v Hogben. Therefore, what will be looked at in this case is not whether the change has more impact on, say, Scottish employees but whether the new policy does. Given that the original policy of BA was extremely unusual and no other employer does anything like it, justification will surely succeed.
Yes, on either analysis I’m not sure that the Claimants stand much chance. Hence my rather laboured Carlisle bus analogy; when one takes a step back the justification for the treatment is simply that the employer is based in Heathrow and obviously it will be easier for English people to commute there. The notion that race discrimination law should demand or preserve a subsidised commute to work is a deeply unattractive one, regardless of the employees’ no doubt genuine feeling of unfairness at having the benefit stripped away.
Many employees were recruited in a big recruitment drive in Europe some years ago.. they took up employment with BA knowing that the company offered concesionary staff travel. Also crew worked in bases in Glasgow, when these bases were closed down the crew were offered work in London, the company knew that these crew had to commute to work and were offered consesionary travel. When these crew took part in IA the consesionary travel was taken off them.. thus making it imposible in some cases for crew to get to work
Yes, on either analysis I’m not sure that the Claimants stand much chance.Also crew worked in bases in Glasgow, when these bases were closed down the crew were offered work in London,