Industrial Tribunals Northern Ireland Decisions

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Cite as: [2014] NIIT 2431_12IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 2431/12

CLAIMANT: Marie Una Neill

RESPONDENT: British Airways PLC

DECISION

The unanimous decision of the tribunal is that:

(i) the claimant’s claim of unfair dismissal is dismissed;

(ii) the claimant’s claim for breach of contract is dismissed;

(iii) the claimant’s claim of indirect race discrimination is dismissed;

(iv) the claimant’s claim of indirect age discrimination is dismissed.

Constitution of Tribunal:

Chairman: Miss E McCaffrey

Members: Mr N Jones

Mr A Crawford

Appearances:

The claimant was represented by Mr M Potter, Barrister-at-Law, instructed by
Donnelly and Kinder Solicitors.

The respondent was represented by Mr B Mulqueen, Barrister-at-Law, instructed by Addleshaw Goddard Solicitors.

1.0 ISSUES

The Legal and Factual Issues had been agreed by the parties at Case Management Discussions well in advance of the hearing. We set out below the issues identified in advance of the hearing and which the claimant’s representative sought to amend in some respects in the course of the hearing and at submission stage. We deal with this further below. We also note at the outset that this case is the first of a number of cases brought in this jurisdiction which raised the same or similar issues. We are conscious that there are a number of similar claims outstanding in Great Britain which await the outcome of this case.

1.1 Unfair dismissal

Was the claimant unfairly dismissed by the respondent contrary to the Employment Rights (Northern Ireland) Order 1996 and Articles 126 to 130 thereof? In assessing fairness the tribunal should specifically consider and determine the following issues:-

(a) Was the claimant unfairly selected for redundancy?

(b) Was there an unfair and unlawful redundancy procedure insofar as the claimant was identified at being at risk of redundancy in circumstances where the London Heathrow based cabin crew employed by bmi (London Mainline Crew) were not and were instead integrated into Eurofleet?

(c) Is the existence of a mobility clause and location agreement relevant to the determination of lawfulness under the Employment Rights Order 1996?

(d) Did the respondent make reasonable attempts to consider alternative employment for the claimant?

(e) Was the claimant unfairly dismissed pursuant to Regulation 7 of the Transfer of Undertakings and Protection of Employment Regulations 2006?

(f) If necessary, is the respondent entitled to rely on Article 130A(2) of the Employment Rights (NI) Order 1996?

(g) Did the respondent breach the claimant’s contract in relation to the application or operation of the mobility clause and/or the location policy contained in the contract?

1.2 Indirect race discrimination

Was the claimant subjected to unlawful indirect discrimination contrary to the Race Relations (Northern Ireland) Order 1997 and in particular Articles 3(1)(A) and Article 6(2)(c)? In this regard the race relied on by the claimant is Northern Irish and/or Irish. The comparators relied on by the claimant are the London Mainline Crew who are allegedly predominantly not Northern Irish and/or Irish. Specifically;

(a) Did the respondent offer to transfer and transfer the London Mainline Crew to Eurofleet?

(b) If so, does this amount to a provision, criterion or practice (PCP)?

(d) If so, did this PCP put persons who are Northern Irish and/or Irish at the alleged particular disadvantage stated at (e) below compared to people who are not Northern Irish and/or Irish?

(e) Was the claimant disadvantaged and detrimentally treated in that:-

(1) she was allegedly not offered a transfer to Eurofleet?; and/or

(2) insofar as she was offered the opportunity to apply for a position with Mixed Fleet were the terms and conditions applicable to Mixed Fleet significantly and substantially less favourable and advantageous compared to the terms and conditions applicable to Eurofleet? If so, was the treatment by the respondent to the claimant justified in all the circumstances?

1.3 Indirect age discrimination

Was the claimant subjected to unlawful indirect discrimination contrary to the Employment Equality (Age) Regulations (Northern Ireland) 2006 and in particular Article 3(1)(b) and Article 7? At the relevant time, the claimant was over 40 years of age. The comparators relied upon by the claimant are those under 40. Specifically:-

(a) Did the respondent offer to transfer the London Mainline Crew to Eurofleet?

(b) If so, does this amount to a provision, criterion or practice?

(d) If so, did this PCP put persons who are in the claimant’s age group at the alleged particular disadvantage stated at paragraph (e) below compared to persons who are not in the claimant’s age group?

(e) Was the claimant disadvantaged and detrimentally treated in that:-

(1) she was allegedly not offered a transfer to Eurofleet?; and/or

(2) insofar as she was offered the opportunity to apply for a position with Mixed Fleet, were the terms and conditions applicable to Mixed Fleet significantly and substantially less favourable and disadvantageous compared to the terms and conditions applicable to Eurofleet?

(f) If so, was the application of the PCP a proportionate means of achieving a legitimate aim.

2.0 FACTS

2.1 The tribunal had the benefit of hearing evidence from the claimant, from her Union representative Mr David McMurray and from Ms Nicola Jones, a former member of British Airways Cabin Crew and Unite Union representative on her behalf.

2.2 We also heard evidence from Mr Bill Francis, who was Head of In-flight Customer Experience for British Airways at the time of events that gave rise to this case, from Amy James who was General Manager for In-flight Service for British Midland Airways Ltd between December 2009 and August 2012, Karen Slinger, Manager of Resource Planning for In-flight Customer Experience at the respondent company and James Brierley, Area Manager for BA’s Euro Fleet and formerly Business Manager for British Midland Airways Ltd. We also had a considerable number of documents opened to us in the course of the hearing. On the basis of the evidence heard and the documents perused, we make the following findings of fact.

The Background

2.3 The claimant was employed by British Midland Airways Ltd (“bmi”) until that firm was taken over by the respondent (“BA”) on 20 April 2012 (“the Acquisition”). The claimant’s employment transferred to BA on 20 August 2012. The claimant had worked for bmi for a considerable period of time. She had initially been employed by bmi’s predecessor in 1984 on a temporary contract, then permanently, and worked as a member of cabin crew at various locations both flying out of Belfast and out of London at different times. She moved back to Belfast in 1986 when a vacancy arose and then operated out of Belfast for the rest of her career with bmi. She was promoted to Flight Supervisor in March 1986. In 1997 she changed to work on a part-time basis as this suited her family responsibilities, and ultimately in February 2012, she changed to a rota of two weeks on, two weeks off on a five day on, two day off rota. This meant that she continued to work 10 days a month as she had done for some time. While a great deal of her time was spent flying between Belfast and London, for the rest of the time the claimant could be sent to fly in other locations in Europe and the Near East on any bmi’s routes. On occasion, she and her crew were “night stopped” away from their home base. We return to this matter in more detail later.

2.4 While the headquarters of bmi was initially at East Midlands Airport, it subsequently relocated to London. There were also four “outstations” of which Belfast was one; Edinburgh, Manchester and Birmingham were the others. At this time the claimant was one of 32 cabin crew members based in Belfast. Edinburgh had 34 cabin crew, Manchester had 38, and Birmingham had 11, making a total of 115 cabin crew at the outstations. There were approximately 695 cabin crew based at London Heathrow, making roughly 800 bmi cabin crew in total.

2.5 It is well known that the airline industry currently faces considerable challenges. We were made aware that BA had had an exceptional year in 2007/2008 which saw it pay a dividend to its shareholders for the first time since 2001. The following year brought a massive increase in oil prices and the downturn in passenger revenues as a result of the world wide economic downturn. By the end of that year, BA had made a total operating loss of £220 million. As part of the costs saving measures which were implemented at that time, BA reviewed the collective agreements which related to cabin crew. After a well-publicised strike and negotiations with unions, a settlement agreement was reached between BA and Unite the union in May 2011. The main issue had been the cost of cabin crew salaries in the Worldwide Fleet (which dealt with long haul flights)and Euro Fleet (which dealt with short haul flights), which BA believed were well above market rates. As part of the settlement agreement reached with Unite in May 2011, it was agreed that there would be no further recruitment into Worldwide Fleet or Euro Fleet but that members of cabin crew in those two fleets would have their terms and conditions protected. This was set out in a formal agreement which was opened to us. Since that date, members of cabin crew recruited into BA were recruited into Mixed Fleet on new terms and conditions which were less favourable than those afforded to staff in Worldwide Fleet or Euro Fleet. These terms and conditions included performance related pay and no guaranteed increments. BA also believed that Mixed Fleet gave them greater flexibility as these crew could operate both long haul and short haul flights rather than the “either/or” arrangement which had existed previously. BA needed to continue making savings to enable it to reinvest in new planes and infrastructure which it was anticipated would cost £5 billion.

2.6 At the time of the Acquisition, bmi was making losses in the region of £3 million per week. The Acquisition was important to BA’s growth strategy as it enabled the company to acquire new routes and slots to enable it to develop its business. The issue for BA to consider was how best to amalgamate BA’s business with the crew and business of bmi, including its employees.

The Consultation Process

2.7 The consultation process on the transfer of staff to BA and potential redundancies took place between bmi (in conjunction with BA) and Unite through a series of 22 meetings commencing on 13 April 2012 right through until 30 August 2012. Of the meetings held, approximately seven were attended by David McMurray, the Unite representative based in Belfast. There was also correspondence entered into between the parties in relation to various aspects of how consultation would proceed. At the outset Mr Francis and Miss James (who were negotiating on behalf of BA and BMI respectively) indicated that it was proposed to close the outstations and that therefore the staff at those outstations were “at risk” of redundancy along with in-flight chefs (who were not required by BA) and Cabin Service Performance Managers. The notes of the initial meeting indicate that BA was willing to look at other options. At that meeting Unite representatives raised the possibility of BMI cabin crew based at Heathrow being offered voluntary redundancy and, if sufficient numbers took up that offer, cabin crew from the regional airports being transferred to Heathrow. It was made clear at that stage that crew at Heathrow were not considered at risk of redundancy by BA. This was because, following the transfer of slots and bmi aircraft flying the routes utilising them to BA, BA believed that the London mainline crew were needed by BA to operate those flights from Heathrow. The proposal was that these cabin crew would remain based at Heathrow. The evidence from the BA witnesses was that there were two distinct strands to the negotiations. One concerned the Heathrow-based cabin crew who were not identified as being at risk of redundancy, and this was focussed on the TUPE obligations of BA as regards those staff. The second related to the proposed redundancies at the outstations, cabin performance managers and in-flight chefs. Perhaps unfortunately, the first strand was referred to by BA as the “TUPE” negotiations and the second strand was referred to as the “Redundancy” negotiations. This gave rise to the impression that staff identified as at risk of redundancy did not transfer to BA under the TUPE Regulations in August 2012, which was not technically correct.

2.8 A proposal was also made ultimately as part of negotiations under the Transfer of Undertakings (Protection of Employment) Regulations 2006, that London Heathrow bmi staff would be integrated into the Eurofleet staff. The reason for this was that BA considered that Eurofleet terms and conditions were closest to the bmi crew’s existing terms and conditions which they are obliged to protect under TUPE. The inclusion of the London-based bmi crew into Eurofleet was specifically negotiated with Unite as an exceptional measure, in light of the Acquisition. Mr Francis was clear that BA had previously given an undertaking to the Union as part of the 2011 agreement that there would be no further recruitment into Eurofleet. He indicated that they would never be able to recruit new crew members into Mixed Fleet again, if they offered Eurofleet terms and conditions to other staff. However, he believed that due to BA’s obligations under TUPE, they had to guarantee bmi crew the terms and conditions they had previously enjoyed. Mr Francis also indicated that the transfer of the bmi London-based cabin crew to BA would result in some overstaffing and so those crew were offered voluntary redundancy. About 60 cabin crew took up that offer, leading to a claim from the claimant that there were 60 vacancies in Eurofleet. BA’s approach was that the 60 redundancies reduced the surplus capacity in Eurofleet, but there had never been vacancies in Eurofleet, only in Mixed Fleet.

2.9 The specific question of considering the outstation crew for transfer to London Heathrow was discussed at a consultation meeting on 17 April 2012 with Miss James and Mr Francis present. When Unite specifically requested a transfer of all bmi staff to Eurofleet, Mr Francis indicated that first of all, that all colleagues would be offered voluntary redundancy. On the second option that all bmi cabin crew throughout the UK would transfer to Eurofleet, his reply was, “We cannot agree at this stage to that proposal, but we are listening.” In addition, a number of points were made regarding the roles of in-flight chefs and performance managers and it was agreed also that people should be able to move to Mixed Fleet without a formal application. His reply was, “We are happy to put bmi colleagues through to interview, forgoing the paper application process which we have never done before for either external or internal applicants”. Following that meeting on 17 April 2012 Mr Francis wrote to Kevin Hall, the London-based Unite representative. He set out in that letter that the proposal to close the cabin crew at outstations was a result of BA’s ongoing operation to be sustainable within the competitive cost base. He noted the lower productivity at the outstations and the greater flexibility which would be achieved by operating the services from London. He also referred to the strategic drive for simplification and flexibility and BA’s strategic model to consolidate all cabin crew flying as part of mainline crew from Heathrow. He noted that BA had already closed its own cabin crew outstations to improve efficiency some years before. He noted that a list of vacancies within BA was being made available so that anyone who wished to apply for a current vacancy within BA was able to do so. He commented that there were economic reasons for these proposals, but also technical and organisational reasons.

2.10 The same day Miss James sent “at risk of redundancy” letters to staff at the outstations advising them that a 90 day process of consultation had commenced, and that no employees would be served notice of compulsory redundancy until the consultation had completed.

2.11 The meetings continued between BA,bmi and Unite. Unite pushed for the outstation staff to move to Eurofleet based in London and again on 15 May, Amy James wrote on behalf of Bill Francis to Kevin Hall addressing this specific issue. Having first stated that cabin crew from the outstations had the opportunity to apply for Mixed Fleet or any other vacancies within BA, she indicated that “there are no vacancies in Eurofleet for any cabin crew at risk of redundancy, including BA’s Gatwick cabin crew and pursuant to BA’s settlement with Unite in May 2011, new joiners are not entitled to apply to join Eurofleet.” She went on to say that BMI’s mainline Heathrow based cabin crew were not at risk of redundancy and therefore BA was obliged to protect this group’s terms and conditions under TUPE. She stated that the best fit for this group as agreed in consultation with Unite was to become part of BA’s short haul operation in Eurofleet, subject to certain measures which were subject to consultation. She added that because these individuals were not new joiners or at risk of redundancy, it was appropriate in the circumstances that they were permitted to join Eurofleet, but that these circumstances “do not apply to crew at UK outstations who are at risk of redundancy”.

2.12 Ms James went on to deal with a number of other issues and specifically addressed the fact that there was a senior cabin crew imbalance already existing within Eurofleet. She noted that this would be exacerbated by the integration of BMI mainline Heathrow-based cabin crew. She also stated that over 40% of the cabin crew based at the outstations were senior grades, which would increase the cost base and the surplus of senior cabin crew, therefore reducing efficiency in the current operation. She added, “We do not therefore consider that it is reasonable to exacerbate the situation by including bmi mainline cabin crew based at UK outstations into this group”. Ms James’ letter also referred to the losses currently being incurred by bmi and the need to reduce costs. She also noted that bmi had been making considerable losses until recently and that this matter had to be addressed. Following these meetings, Oliver Richardson of Unite wrote to Mr Francis regarding potential redundancies. The purpose of this letter was to seek an extension to the consultation process, but he said in the letter, “These difficult discussions have, I trust you will agree, been conducted in good faith with both parties seeking to find ways to avoid redundancies, reduce any numbers that may occur and mitigate their impact.”

2.13 The senior cabin crew imbalance was referred to by the BA witnesses as “a factor” in the decision to close the outstations. Approximately 55% of cabin crew members at Belfast were either flight supervisors or cabin service performance managers. Had the outstations been retained and those staff had retained their seniority, this raised operational issues. It was explained by Miss James that on occasion senior staff ended up acting as regular cabin crew where there were not sufficient slots for them to take the senior role on a particular flight. This meant that effectively, the staff were being paid at a higher rate to do a lesser job. This was not disputed by the claimant.

2.14 The outstations run by bmi at Edinburgh, Manchester, Birmingham and Belfast served the entire bmi business in those locations. Apart from cabin crew and pilots, their staff included check-in and ticket desk personnel, an administrative assistant, a local manager, engineers, baggage services and premium lounge staff. There was also a Cabin Services Performance Manager, although the person based at the Belfast office was a part-time member of staff. As the claimant was also part time, she advised that she rarely saw the cabin services performance manager, and had to contact a CSPM in London if she needed information or support. There was also an office where members of the cabin crew and flight operations reported for duty.

Individual Consultation

2.15 As well as the negotiations with the union, the claimant was also contacted direct regarding the potential redundancy. A letter dated 12 April 2012 was sent to all bmi crew (including the claimant) from Wolfgang Prock-Schauer, the Chief Executive of bmi. She was advised by letter of 17 April 2012 that her position was at risk of redundancy. On 30 April 2012, BA wrote to the claimant setting out the option of applying for Mixed Fleet and other general vacancies within BA, including administrative support roles. There followed an individual consultation meeting in July, and an individual meeting in August, which we deal with later.

Options for Redeployment

2.16 The options offered to staff at the outstations were to accept redundancy or alternatively, to apply for another vacancy in BA, to apply to join CityFlyer in Edinburgh (which was clearly of most interest to staff based at Edinburgh) or to apply for a position at BA’s Mixed Fleet operating out of London. They could also apply for posts at London Gatwick. This would have involved the staff concerned losing their previous bmi terms and conditions and their seniority. They would however have stayed in employment, and they would have received an ex gratia lump sum of £10,000.00, paid in two equal stages, as part of the move to Mixed Fleet. There were 115 cabin crew at the various outstations affected by the proposals of redundancy. Of these, 30 to 40 London Mainline crew decided to move to a role in Mixed Fleet. BA’s comment was that it could be a more attractive option for some members of cabin crew, as it was a growing fleet with promotion opportunities and included staff flying long haul and short haul trips. That said, it must be noted that Mr Francis’ evidence was that Mixed Fleet had been introduced as a method of saving cost in relation to cabin crew. He also noted in his evidence to the tribunal that basic pay and allowances on BMI terms and conditions were significantly more favourable than those applicable to Mixed Fleet in terms and conditions by approximately 50%. It was clarified to us that this meant the Mixed Fleet crew earned roughly two thirds of what their bmi colleagues earned by way of basic pay.

2.17 It was put to the claimant in cross-examination that had she decided to move to Mixed Fleet, with bonuses which were available, amended hourly rate, her seniority and opportunities for promotion, she could actually have earned close to what she had previously earned with BMI. The claimant however had not checked out the detailed figures but simply discussed the matter with her Service Manager at the time. She also had the option to consider transferring to London Gatwick but decided against this as she believed it would not be economically viable. The claimant pointed out that she would have to cover her own travelling expenses and because of the loss of seniority, she would not have priority for standby flights to get her over to Heathrow for work. We accept the claimant would have been worse off, at least initially, had she moved to Mixed Fleet and that she would have had to fund her own travel to Heathrow. She would however have received the £10,000 discretionary payment as compensation had she decided to apply for Mixed Fleet. The staff could also apply for the CityFlyer service operating out of Edinburgh, which the claimant indicated she was unaware of.

Place of Work

2.18 One of the issues at dispute between the parties was whether the claimant’s place of work was Belfast, or whether she was in fact the same as any other member of bmi mainline crew, and simply working “out of” Belfast. Early in the claimant’s career with bmi, she worked for a time at Heathrow, and her contract at that time specifically referred to her place of work as being London Heathrow. The contract of employment given to the claimant in 1997 after she returned from maternity leave specifically states:-

“8. Place of Work

“8.1 You are required to work from the Company’s operational base at Belfast. However the company reserves the right depending upon operational requirements to require you to work either on a temporary or permanent basis at any other of the Company’s operational bases. Your base will not be changed without consultation but the Company’s decision will be final.

8.2 When requested to undertake duties at other bases the Company shall meet the costs of travelling expenses incurred by you subject to the Company’s prior approval and in consultation with Union Representatives.

8.3 You must be available within 60 minutes of the base to which you are assigned unless otherwise agreed in writing by the company. Failure to comply with this requirement may result in the termination of your employment. Travelling to and from your base reporting office shall be your responsibility unless otherwise agreed by the company in writing.”

2.19 The assertion was made by the claimant that she was a member of mainline crew and that she was on the same contract, rota and did the same job as any of her colleagues based at any of the other outstations or at Heathrow. It was agreed by the respondent’s witnesses that all cabin crew did the same job “in the air”, but they asserted there were differences between the claimant and her colleagues at the outstations and Heathrow based crew. The claimant’s representative asserted that the claimant’s place of work was “on the ground at airports and in the air”. Under cross-examination, the claimant eventually agreed that she was “employed by bmi at Belfast”.

2.20 The respondent alleged that there were three substantial differences between the claimant, her colleagues at the other outstations and the staff at Heathrow. In particular they pointed to the London weighting which was paid to London-based staff, but not to those at outstations. We do not see this as a significant difference, as it is standard practice to pay a London weighting in many industries. They also relied on the contractual terms that which specified that her place of work was Belfast rather than Heathrow, and that outstation staff were rostered differently from their London based colleagues. In particular, the respondent indicated that Belfast crew were required to start their day by operating a duty from Belfast to London Heathrow and end their day by operating a duty from London Heathrow to Belfast. There was a dispute between Miss James and the claimant as to the amount of her time which the claimant spent operating duties out of Heathrow to other destinations. The claimant said in cross-examination it was 50% of her time, and Ms James disputed this, saying that the claimant spent 80%-85% of her time flying between Belfast and Heathrow. Neither of them produced any rosters to show how the duties were worked out. What we do note is that the claimant worked on a part-time basis, approximately 50% of the hours of a full-time member of staff. We also note that the figures produced by British Airways (which were not disputed or challenged in any way) showed that the overall productivity of staff at the outstations was considerably less than that of the London crews. Crews flying out of London averaged 800 flying hours per year. Between March 2011 and March 2012, the cabin crews at Belfast flew on an operating aircraft for an average of 405 hours per year. Staff at Edinburgh flew on an operating aircraft for an average of 435 hours per year, while Manchester staff flew on average 748 hours per year and Birmingham crew were on an aircraft for an average of 600 hours per year. The problem which was summarised by Miss Slinger as being that bmi was paying its members of cabin crew based at Belfast a full basic salary to undertake an average of 405 flying hours per year when it was entitled to ask those members of cabin crew to undertake up to 900 flying hours per year. The evidence regarding productivity and the context – that staff at the outstations must start their day with a flight from their base to London and end it with a flight back to base tends to support Ms James’ evidence that the greater proportion of the claimant’s time must have been spent on the Belfast-Heathrow route.

2.21 Karen Slinger’s evidence was that, as regards the productivity issue, the staff from outstations had to be rostered to fly short haul routes from Heathrow which would enable them to return to Heathrow in time to operate the last flight back to their outstation. Heathrow-based staff could be sent to any of the short haul flights across the entire BA network. This meant that they could undertake more efficient trips which, linked together, minimised downtime at London Heathrow, thereby increasing efficiency and saving costs.

2.22 It was also noted that for a number of years BA had developed and maintained a strategic model based around working out of London Heathrow and London Gatwick rather than the UK regions. BA had previously closed their own outstations. In particular they had closed an outstation at Manchester in 2006 and in Glasgow in 2009. They had also closed their operation in Dublin in 2002.

2.23 Part of the claimant’s argument was that the Belfast-based crew could quite simply have been transferred into BA Eurofleet along with the rest of the London mainline crew. She indicated that she and others were willing to commute to London to allow them to stay in employment and to fund their travel themselves. Miss James, who was working in bmi at the time, indicated in her evidence that there was no automatic right for members of cabin crew to transfer to different bases, but this was dependent on available vacancies. Prior to the acquisition of bmi by British Airways, bmi had closed outstations in Teeside, Dublin and Glasgow in 2006, 2009 and 2010 respectively. While staff had been able to transfer to other locations, this was because there were vacancies available at the time. Mrs James indicated that in 2012, there were no vacancies in Eurofleet, but there were vacancies in Mixed Fleet.

2.24 Nicola Jones gave evidence that she had worked as a member of BA cabin crew from 1993 until July 2011. She indicated that she had been employed as cabin crew at Manchester and transferred to Glasgow after the Manchester base closed and again in 2009 on the closure of Glasgow she transferred to London/Heathrow Eurofleet. She agreed in cross-examination that there had been a different climate at that time. She agreed that she was aware of substantial losses made by British Airways and of the closure of its outstations. When it was put to her that there was a permanent freeze on recruitment in the Worldwide and Eurofleets, she answered that BA could on occasions make agreements with Unite but then changed things “to accommodate people”. When she was pressed on whether BA had ignored the 2011 agreement between Unite and it, she said that Eurofleet had been opened to accommodate the bmi Heathrow mainline staff but agreed that this was a “one-off” occasion.

2.25 There were other infrastructure costs and overheads. These included the costs of renting and maintaining outstations, which might consist of an office or a room within the airport. There was also a cabin crew roster tracking system which had been built and designed on the basis that all UK-based cabin crew operated from London Heathrow or London Gatwick. It would have been costly to change the system to include cabin crew based outstations. Additionally, there would have been additional time and costs in bringing members of cabin crew to London Heathrow for training which was duplicated by training at the outstations. Miss Slinger admitted that these costs were not quantified in detail at the time, but she indicated that they could not see how productivity could be improved to acceptable levels while operating an outstation based on BA’s and bmi’s previous experience of operating UK outstation bases. Secondly, maintaining the outstation bases did not fit with the strategic direction of consolidating all UK-based cabin crew into Heathrow and Gatwick.

2.26 Mr Francis’ evidence was that while BA recognised that bmi’s London mainline crew would need to be retained on their bmi terms and conditions after their transfer into BA under TUPE, they needed to decide how they should best be integrated into BA. Having decided that they should be integrated into one of BA’s existing fleets (ie, Eurofleet, Worldwide fleet or Mixed Fleet), they considered the scheduling arrangements for these three fleets. Given the hourly restrictions on Eurofleet cabin crew, and the contrast between the more flexible and longer hours available under Mixed Fleet’s terms and conditions, Eurofleet seemed more suitable for the bmi crew. The second factor was the question of the aircraft licences needed by the cabin crew and the routes which the mainline crew would fly on. Having considered these factors and the fact that there was an approximately 80% match between the individual terms and conditions of employment, it was considered that the best fit for the London mainline crew was BA’s Eurofleet. BA had also considered whether Mixed Fleet or Worldwide would be more appropriate, but decided against this. After negotiations with the union, this was agreed with Unite. Mr Francis indicated that the influx of bmi London mainline crew into Eurofleet created a short-term surplus of cabin crew, however he indicated that it was “not industrially possible” for BA to consider a redundancy situation within Eurofleet at that time, in light of the industrial turmoil that had affected BA in 2010/2011.

2.27 Another factor referred to by Mr Francis was that had they moved the Belfast bmi cabin crew to London, they would have faced complaints from the staff at the other outstations. If outstation staff as a whole had been integrated into the Heathrow fleet, then he believed they would have faced complaints and potential claims from other groups at risk of redundancy, for example, the in-flight chefs and the cabin service performance managers.

2.28 As regards the complaint of race discrimination made by the claimant, she indicated that of the 32 staff based at Belfast, only 2 were not from Northern Ireland. She based this on her knowledge of the staff, saying that one was from Scotland and the other was Italian. She did not give a breakdown or details of the nationality of the various staff members based in Belfast. As regards the London mainline crew she asserted that they were principally English. She said that she had known staff from Northern Ireland and Ireland over many years and she believed there were 20 to 30 individuals who were Irish or Northern Irish working out of Heathrow. She did not produce any evidence of the breakdown of nationalities within the London Heathrow staff to back up her assertion that they were principally English nor did we have any other evidence before us as to the makeup of the London staff. We had no evidence of the nationality of the cabin crew based in the other outstations. The issue of alleged race discrimination was not raised by the claimant or by her union during the negotiations.

2.29 The claimant alleged that the decision to close the outstations and failure on the part of BA to integrate the outstation crew with the BA fleet constituted indirect discrimination on grounds of age. There was some issue as to the position of the claimant and those of her colleagues who were senior cabin crew. Mr McMurray asserted that anyone applying for promotion within bmi had to be working for at least 10 years to be eligible for promotion and therefore would be older. Miss James refuted this, saying that the service requirement was much shorter, either a year or two years, she could not recall the exact service requirement. The claimant did not give direct evidence on this point. However, we are aware from the paperwork we were provided with that, once promoted to flight supervisor, the claimant was eligible for a number of increments which continued to accrue automatically for a period of up to 10 years. The statistics provided by British Airways showed that 49.6% of cabin crew based at Belfast were aged over 40. 44% of London mainline crew were aged over 40. The claimant’s representative put to us that of the outstation crews, 83% of Belfast senior cabin crew were over 40, 79% of the Edinburgh senior cabin crew were over 40 and 69% of Manchester senior cabin crew were over 40 while none of the Birmingham senior crew were over 40. 44% of the Heathrow senior cabin crew were over 40.

2.30 The claimant met Mr Brierley of bmi for a personal consultation meeting on 3 July 2012. The meeting took place at Heathrow where the claimant was between flights. The claimant asserted that Mr Brierley had been late for the meeting and that they were therefore pushed for time. However, this was not raised by her as a protest at the time nor was it noted by Mr Brierley. Mr Brierley denied that he had been late for the meeting and said that if he had been late, it would have been noted in his diary. The claimant indicated that she felt the meeting was “a waste of time” as she had very little time to talk to Mr Brierley and she felt that the meeting was unhelpful. In cross-examination however she conceded that she had confirmed at the meeting that she would have preferred a job in Belfast if she had had the choice. She indicated that she might be interested in Eurofleet and Mr Brierley noted that she “would consider Eurofleet if available”. She was awaiting the outcome of the union consultation with BA at the time of the meeting. Mr Brierley’s notes also indicate, “If redundant will be happy to go if get PILON (pay in lieu of notice)”. Mr Brierley also notes that, “Una is v interested in training particularly IT skills. On leave 7-19 July.” He also noted that the claimant was not happy to sign the notes at the meeting until the end of the union consultation with management. The claimant asserted in her witness statement that she wanted to know what her redundancy entitlement would be and that Mr Brierley told her to go and find out. Mr Brierley’s evidence was that he did not and would not have said this, he believed he would have offered to go and find out the information for the claimant or alternatively it would have been provided to her once it was available.

2.31 The claimant also agreed that she had been offered a consultation with Fairplace Cedar who deal with career transition and career coaching and she agreed that she had both a group session and a one-to-one session which she found helpful. While the claimant was on annual leave, she was sent a letter of 16 July which confirmed her employment would transfer to BA on 20 August 2012 and that she was to be made redundant on 31 August. She received it on her return from holiday on 19 July. Amongst other things the letter stated:-

“Throughout this process (the consultation process) British Airways’ intention has been to limit the number of compulsory redundancies by working with individuals to consider possible options to include voluntary redundancy and redeployment.

However, it has unfortunately not been possible to avoid all redundancies. Therefore having now concluded a formal consultation period, the purpose of this letter is regretfully to serve you with notice of your compulsory redundancy. For the reasons set out below your dismissing employer will be British Airways. Your last working day will be 31/08/2012.”

2.32 That letter included details of the claimant’s redundancy payment including pay in lieu of notice and outstanding pay. The total amount to which she was entitled came to just over £10,000.00. The letter did not set out the claimant’s right of appeal and no appeal was offered. BA’s reason for this was that there had already been detailed discussions with union representatives and all the issues which might be raised on appeal had already been discussed with senior management. Miss James queried whether affected employees could raise concerns on appeal with more junior managers. She also doubted however whether a genuine appeal was possible as the affected crew already knew that Mr Francis had been part of the senior management which decided on the redundancies. She also suggested it would have been too cumbersome to give a right of appeal to all the staff affected, of whom there were 882.

2.33 The claimant had a further consultation meeting with Jane Dewey on 8 August. She also received a letter dated 20 August confirming the position regarding her transfer to British Airways and redundancy. This confirmed that her redundancy would take effect from 31 August 2012.

2.34 Following the claimant being identified for redundancy, she finished work on 31 August 2012. She subsequently considered other jobs but indicated most of the jobs within British Airways were administrative jobs requiring computer skills which she did not have. The claimant found some work initially at G4S as a security officer for 17.5 hours per week. She was subsequently offered some seasonal work at Marks and Spencer’s starting on 22 October 2012 which lasted until 5 January 2013.

2.35 The claimant applied for some other posts and had started on 30 August 2013 in a
part-time post at Belfast City Airport. She believed however that she was going to find it difficult to find other work without updating her employment skills. It was put to her that there had been posts available with Easyjet and with Jet2. The claimant indicated that she had not applied for any of these posts. Her reason for this was that the Jet2 post was full-time. Both posts were based in Belfast. She also noted that she assumed that they would be full-time posts, whereas she wished to work on a part-time basis.

3.0 THE RELEVANT LAW

3.1 We wish to thank Counsel for their detailed and helpful submissions in this case. We attach to this decision a list of the authorities to which they referred us and copies of their written submissions.

3.2 There are three main areas involved for the tribunal to consider. The first relates to the claim of unfair dismissal/unfair selection for redundancy. The second refers to the claimant’s claim of unlawful indirect discrimination on the grounds of race and the third relates to the claimant’s claim of unlawful indirect discrimination on grounds of her age. We take these matters in turn.

3.3 Unfair Dismissal/Unfair Selection for Redundancy

The relevant legislation in relation to this matter is to be found in the Employment Rights (Northern Ireland) Order 1996 and in particular Articles 126 to 130 of the 1996 Order. We refer in particular to Article 130 of the 1996 Order which provides as follows:-

“130 (1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show -

(a) the reason (for, if more than one, the principle reason) for the dismissal; and

(b) that it is either a reason falling within paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2) A reason falls within this paragraph if it -

(a) relates to the capability or qualifications of the employee for performing work of a kind which he was employed by the employer to do;

(b) relates to the conduct of the employee;

(ba) is the retirement of the employee;

(d) is that the employee could not continue to work in the position which he held without contravention (either on his part or that of his employer) of a duty or restriction imposed by or under a statutory provision…

(3A) In any case where the employer has fulfilled the requirements of paragraph (1) by showing that the reason (or the principal reason for the dismissal is the retirement of the employee, the question whether the dismissal is fair or unfair shall be determined in accordance with Article 130ZG.

(4) In any other case where the employer has fulfilled the requirements of paragraph (1) the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) -

(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and

(b) shall be determined in accordance with equity and the substantial merits of the case.”

3.4 In this case the provisions in relation to redundancy found at Article 174 are also relevant. These provide as follows:-

“174 (1) For the purposes of this Order an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to -

(a) the fact that his employer has ceased or intends to cease -

(i) to carry on the business for the purposes of which the employee was employed by him, or

(ii) to carry on that business in the place where the employee was so employed (emphasis added).

(b) the fact that the requirements of that business -

(i) for employees to carry out work of a particular kind; or

(ii) for employees to carry out work of a particular kind in the place where the employee was employed by the employee (emphasis added), have ceased or diminished or are expected to cease or diminish.

(2) For the purposes of paragraph (1), the business of the employer together with the business or businesses of his associated employers shall be treated as one unless either of the conditions specified in sub-paragraphs (a) and (b) would be satisfied without so treating them).

…..

(5) In paragraph (1) “cease” and “diminish” means cease and diminish either permanently or temporarily and for whatever reason.”

3.5 It was common case that there was a redundancy situation in existence at the time of the Acquisition. It was clear that bmi had been losing substantial amounts of money and that BA was also endeavouring to rearrange its business and implement a new strategy with a view to making the business more productive and cost-efficient. It was therefore accepted that there would be redundancies. BA’s strategy of basing its staff at Heathrow and Gatwick meant they decided to close the outstations at Belfast, Edinburgh, Manchester and Birmingham and they identified the staff whose place of work was at one of the outstations as being at risk of redundancy. The main thrust of the claimant’s argument was that her place of work was not confined to Belfast, but was “in the air and at airports”. She alleged therefore that the pool for redundancy in this case should include not only staff at the Belfast outstation or the outstations in general, but should include all bmi cabin crew. There were therefore several issues which the tribunal had to consider in relation to the question of redundancy:-

(1) where was the claimant’s place of work;

(2) whether the respondent had acted reasonably in selecting the pool for redundancy.

(3) was the redundancy procedure fair in all respects;

(4) should the respondent have exercised the contractual mobility clause and obliged the claimant to move to London rather than make her redundant;

(5) was the claimant dismissed for an economic, technical or organisational reason under Regulation 7 of the Transfer of Undertakings (Protection of Employment) Regulations 2006?

3.6 The claimant’s place of work

The claimant asserted at the outset of the case, through her counsel, that the nub of the case was the place of work or work location of the claimant. The case made was that all bmi Mainline crew did the same or similar jobs and flew together regularly on flights both internally and externally. He alleged therefore that their place of work was “in the air and on the ground in airports”. The respondent on the other hand asserted that the claimant’s place of work was at Belfast which was her operational base.

3.7 The case law indicates that there has been a move away in recent years from the so-called contractual test to the “primary fact” or geographical test. We were referred in this regard to a number of cases, in particular High Table Ltd v Horst and Others [1998] ICR 409. In that case, the Court of Appeal held that the place where an employee was employed for the purposes of the employer’s business was to be determined by a consideration of the factual circumstances which obtained until the dismissal. The Court went on to say that if an employee had worked in only one location under his contract of employment for the purposes of the employer’s business then it defied common sense to widen the extent of the place where he was so employed mainly because of the existence of a mobility clause. The Court continued, “If the work of the employee for his employer has involved the change of location, as would be the place where the nature of the work required the employee to go from place to place, then the contract of employment may be helpful to determine the extent of the place where the employee was employed. But it cannot be right to let the contract be the sole determinate regardless of where the employee actually worked for the employer”.

3.8 In Bass Leisure Ltd v Thomas [1994] IRLR 104 the claimant worked out of the employer’s Conventry depot, driving around various pubs to collect takings from fruit machines. She returned to the depot at the end of her job. The employer closed its Coventry branch and offered the claimant relocation 20 miles west of Conventry. She tried the move but it did not work out and she sought her redundancy payment. The company relied on contractual provisions permitting the transfer of employees and adjustment of geographic locations. The Employment Appeal Tribunal held that the claimant had been made redundant in the place where she worked. “The place” where an employee was employed for the purposes of legislation did not in their view extend to any place where he or she could contractually be required to work. The EAT indicated that the question was primarily a factual one and the only relevant contractual terms are those which go to evidence or to find the place of employment and its extent rather than making provision for the employee to be transferred from one place to the other. The respondent also contended that if we accepted the claimant’s (in our view, rather nebulous) concept that her place of work was “in the air and on the ground in airports” this could lead to the unsatisfactory situation where some crew who spent more time “in the air and in airports” outside the United Kingdom might have their terms of employment affected by territorial jurisdictional issues, which the respondent indicated could not have been the intention of the parties. They referred us to Pitman v Foreign Commonwealth Office [2003] ICR 699. The claimant’s representative correctly pointed out that this was a case where the claimant spent the bulk of his time overseas as a diplomat and questioned whether or not the case was in fact appropriate. Of greater relevance, in our view, is the fact that the evidence in this matter is that the claimant spent the bulk of her time at work on flights between Belfast and other parts of the United Kingdom. Jurisdictional and territorial issues therefore in our view are unlikely to apply.

3.9 The appropriate pool for redundancy

In considering the appropriate pool for redundancy, the pool must be judged according to the “range of reasonable responses” test. It is not for the tribunal to substitute its own view of the appropriate pool. In Taymech v Ryan EAT/663/94 Mr Justice Mummery (as he then was) noted that:-

“There is no legal requirement that a pool should be limited to employees doing the same or similar work. The question of how the pool should be defined is primarily a matter for the employer to determine. It will be difficult for the employee to challenge it where the employer has genuinely applied his mind to the problem…”

3.10 In 2011, Mr Justice Silber reviewed the case law in Capita Heartshead Ltd v Byard and stated:-

“Pulling the threads together, the applicable principles where the issue in an unfair dismissal claim is whether an employer has selected a correct pool of candidates for redundancy are that:-

(a) “It is not the function of the [employment] tribunal to decide whether they would have thought it fair to act in some other way;

the question is whether the dismissal lay within the range of conduct which a reasonable employer could have adopted” (per Browne-Wilkinson J in Williams v Compair Maxam Ltd [1982] IRLR 83);

(b) “… The Courts were recognising that the reasonable response test was applicable to the selection of the pool from which the redundancies were to be drawn” (per Judge Reid QC in Hendy Banks City Print Limited v Fairbrother and Others (UKEAT/0691/04/TM);

(c) “there is no legal requirement that a pool should be limited to employees doing the same or similar work. The question of how the pool should be defined is primarily a matter for the employer to determine. It will be difficult for the employee to challenge it where the employer has genuinely applied his mind [to] the problem” (per Mummery J in Taymech v Ryan EAT/663/94);

(d) the Employment Tribunal is entitled, if not obliged, to consider with care and scrutinise carefully the reasoning of the employer to determine if he has “genuinely applied” his mind to the issue of who should be in the pool for consideration for redundancy; and that

(e) even if the employer has genuinely applied his mind to the issue of who should be in the pool for consideration for redundancy, then it will be difficult, but not impossible, for an employee to challenge it.”

3.11 In this case we have to consider the issue of multi-site redundancy and whether the employer should treat employees working at different sites as separate groups for the purpose of redundancy selection. It is the claimant’s case that BA in this case are not entitled to treat staff at the outstations as separate or different to the London-based bmi crew. We were referred to two cases by the representatives, one from either side of the debate apparently. In Highland Fish Farmers v Thorburn (EAT1094/94) it was noted the geographical location and linkages as between sites are relevant factors to take into account. The respondents had a number of fish farms in Scotland. At the time of the dismissal, they had 10 fish farms, 6 sea water sites and 4 fresh water sites located in the North of Scotland. There were 50 people employed in a range of different occupations. The claimants worked at Torridon. The employer decided to close that site and made the employees redundant. The Industrial Tribunal agreed on two issues, namely that the dismissals were due to redundancy and that there had been a lack of consultation which rendered the dismissals unfair. They disagreed however on the question of whether the selection of the claimants for redundancy had been unfair. The majority held that it was unlawful; in particular, the tribunal accepted that while Torridon was managed as a separate cost unit with certain distinct recordkeeping, it was related to the site at Aird which was close by. The majority of the tribunal found there was close support between the two sites. In the tribunal’s majority view the selection criteria of the respondents was fundamentally flawed. They believed that any reasonable employer faced with two sites in geographical proximity and providing mutual support would not have focused on one single site as a pool for selection. The Employment Appeal Tribunal in Scotland upheld the decision of the majority of the tribunal. We quote from their decision as follows:-

“It is also manifest, in our view that it is a question of judgment on the particular facts and circumstances, and upon the evidence before the Industrial Tribunal, and that we could only interfere with the decision of the majority if it could be shown that they had erred in law in some way; or that their decision was perverse. The majority of the Industrial Tribunal clearly approached the question correctly. They clearly understood that the question was whether any reasonable employer would have acted as the appellants did (our emphasis). In the argument on behalf of the appellants, a great deal of stress was put on the proposition that an employer is entitled to a degree of flexibility or discretion in the selection of the pool from which redundancies are to be chosen; and that, in the present case, the employer’s approach which was to apply the last in/first out principle on a site by site basis, after allowing for part-time workers, was a perfectly normal and reasonable means of going about the selection and certainly one which might have been adopted by a reasonable employer. That argument undoubtedly has force, but it seems to us that it largely misses the point in the present case. The majority of the Industrial Tribunal nowhere criticised the site by site policy adopted by the appellants, nor the selection of part-timers for redundancy first, nor the application of last in/first out. The reason for their conclusion is that no reasonable employer would have treated the Aird and Torridon sites as separate sites…(emphasis added) it was for the Industrial Tribunal to assess the weight and value of the evidence of the appellants’ witness and of the respondents respectively. It was also for them, in the light of that evidence, to assess the significance of the geographical proximity and the linkages between the sites. They were not required to lay down any wider propositions, but only to deal with a particular case before them…”

3.12 In Clews and Others v Liverpool City Council (EAT463/93) the employer made a decision not to pool two groups of security personnel on two different sites. There had been resistance from the union initially to treating the two groups of workers as one unit for the purposes of redundancy, in spite of them being treated as one unit for the purposes of negotiation and in spite of the fact that the council would have preferred to have one security force. When a redundancy situation arose, the unions met and resolved that although there had been hostility between them in relation to the two units, they were of a view that compulsory redundancies should be resisted. The council initially sought early leavers and volunteers from both units and ultimately made a decision that compulsory redundancies should be restricted to the “Static Unit” whose order book had been falling by comparison with the order book of the “Mobile Unit”. It was contended before the Employment Appeal Tribunal that as a result of the contracts of employment, the Council could have transferred the supervisors to the Mobile Unit or required them to supervise staff within that unit and that therefore there was no redundancy situation. This contention was rejected. Flexibility of the sort suggested was only on the cards if the units amalgamated. The Employment Appeal Tribunal was therefore content that the Industrial Tribunal had not misdirected itself and was entitled to treat the two units as separate units for the purposes of redundancy. The EAT was clear that it was a matter for the tribunal hearing the case to weigh the evidence and make the appropriate decision.”

3.13 “Bumping”

Mr Potter for the claimant attempted to assert that the principle of “bumping” was arguably relevant in this case. He asserted in effect that other staff should have been made redundant in preference to the claimant and her colleagues and the claimant offered one of the then vacant jobs. This was not pleaded by the claimant and was not specifically referred to in her evidence. Mr Potter attempted to allege that this was covered by part of the claimant’s witness statement where she refers to the fact that many of the crew transferring from bmi into Eurofleet in London were only recent recruits. She refers to the fact that many of them had little service or experience and she felt aggrieved that they were continuing in service as they were based at London Heathrow while she would not. This assertion is in the context of the claimant’s claim of age discrimination rather than a claim of “bumping”. Given that this was not pleaded, or identified in the legal and factual issues for consideration by the tribunal, it was not in our view, part of this case and we do not intend to consider it any further.

3.14 Consultation

Council opened to us the well-established principles in relation to the matter of consultation on redundancy and in particular that consultation must be meaningful and adequate (Mugford v Midland Bank Plc [1997] IRLR 208). We are conscious that consultation must include not only consultation with the union (where appropriate) but must include consultation with the individuals concerned. The process must be transparent and meaningful and the individual must have the opportunity to make her views known.

3.15 It is also established that consultation must take place before firm decisions are made by the employer, and that the process followed in relation to a selection for redundancy must be clear and objective.

3.16 We were also referred to the case of Vokes v Bear [1973] IRLR 363 in relation to the question of suitable alternative employment. It is relevant to note however that Vokes v Bear was a case where there had been no consultation at all in relation to redundancy and no effort made by the employer (which was a substantial enterprise with a group of companies), to consider any alternative employment within the group.

3.17 In relation to the question of the mobility clause in the claimant’s contract of employment, Mr Potter argued that the employer could and should have exercised that mobility clause to oblige the claimant to go to work at London Heathrow under her terms and conditions of employment. This issue was considered by the Employment Appeal Tribunal in Scotland in the case of Lomond Motors Ltd v Clark (UKEATS/0019/09/BI). In that decision the EAT indicated that:-

“Turning to the relevance of a mobility clause in the contract of employment when considering a claim for unfair dismissal on grounds of redundancy, there is authority for the view that if there is a genuine redundancy at the place where an employee in fact works, it is not rendered any less genuine by reason of the existence of the mobility clause which could have enabled the employer to send the employee elsewhere to work. The point is rather that there is a cessation or diminution of business at the place where the employee is working at the relevant time and thus, the potentially fair reason is established. Put shortly, it is a matter of looking at the circumstances where the employee is in fact working. A mobility clause is not indicative that there is no genuine redundancy.”

3.18 Suitable Alternative Employment

The claimant’s representative argued that the claimant had lost out by not being offered the option to transfer to Eurofleet. It was alleged that the option to transfer to Mixed Fleet which had been offered to the claimant and her colleagues at the outstations was not suitable alternative employment. This was on the basis that the claimant would not have received the same terms and conditions as she had done while working for bmi, and in particular that she would have had to fund her own travel to and from London Heathrow which would have been to her disadvantage.

3.19 The claimant also alleged that the redundancy process followed by BA was unfair in relation to the procedure followed. Article 130A of the 1996 Order provides that failure to follow the statutory three stage disciplinary and dismissal procedure will render a dismissal automatically unfair. We were referred to the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 and specifically to Regulation 4(1)(b) which provides as follows:-

“Neither of the dismissal or disciplinary procedures applies in relation to the dismissal of an employee where -

… (b) the dismissal is one of a number of dismissals in respect of which the duty in Article 216 of the Order of 1996 (duty of employer to consult representatives when proposing to dismiss or make redundant a certain number of employees) applies;…”

3.20 The respondent’s representative, while submitting that the dismissal procedure was detailed and fair, indicated that if there were any shortcomings in the process, they relied on Article 130A(2) of the Employment Rights (Northern Ireland) Order 1996 which states:-

“… Failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of Article 130(4)(a) as by itself making the employer’s action unreasonable if he shows that he would have decided to dismiss the employee if he had followed that procedure.”

3.21 Dismissal for an economic, technical or organisational reason contrary to Regulation 7(2)(b) of the Transfer of Undertakings (Protection of Employment) Regulations 2006. These regulations provide that where an employee is dismissed for an economic, technical or organisational reason entailing changes in the workforce either before or after the transfer of the business, this may be treated as a fair dismissal if the relevant criteria are met.

3.22 Breach of contract

The claimant alleged breach of contract in her claim form, but did not adduce any evidence in relation to this matter except insofar as the claimant alleged that the respondent had breached her contract of employment by failing to apply the mobility clause and/or the location policy in her contract of employment. The respondents replied to this by pointing out first of all that the claimant had adduced no evidence in relation to this specific matter. Secondly, there had been correspondence between Mr Francis at British Airways and Mr Hall of Unite the Union during the consultation process, indicating that the place of work for redundancy purposes would be determined by where the individuals actually worked in practice and not merely by the terms of their employment contract. This was so that the presence of a mobility clause in the contract of employment should not be used to defeat a genuine redundancy payment claim.

3.23 Indirect discrimination on grounds of race

We are conscious that there are a number of claims outstanding against the respondent in Great Britain which raise similar issues to this case. We observe for the benefit of all parties that the Equality Act 2010 does not apply in Northern Ireland, and so our findings are based on the existing law in this jurisdiction. The relevant legislation in relation to this matter is Article 3(1)(b) of the Race Relations (Northern Ireland) Order 1997 (“the 1997 Order”) which provides as follows:-

“3(1) (b) A person discriminates against another in any circumstances relevant for the purposes of any provision of this Order if…

(b) he applies to that other a requirement or a condition which he applies or would apply equally to persons not of the same racial group as that other but -

(i) which is such that the proportion of persons of the same racial group as that other who could comply with it is considerably smaller than the proportion of persons not of that racial group who can comply with it; and

(ii) which he cannot show to be justifiable irrespective of colour, race, nationality or ethnic or national origins of the person to whom it is applied; and

(iii) which is to the detriment of that other because he cannot comply with it.”

3.24 Article 5 of the 1997 Order provides as follows:-

“5(1) Subject to paragraphs (2) and (3), in this Order - “racial grounds” means any of the following grounds, namely colour, race, nationality or ethnic or national origins; “racial group” means a group of persons defined by reference to colour, race, nationality or ethnic or national origins and references to a person’s racial group refers to any racial group into which he falls…”

3.25 The claimant relied on the decision Paul v The Chief Constable of the RUC [2004] NIIT to affirm that people who were Northern Irish constituted a relevant racial grouping. While we are not bound by that ruling, we note that the next two issues were:-

(b) If so, does this amount to a provision, criterion or practice (PCP)?

(c) If so, was this PCP applied to the claimant? (The words “and to persons who are not in the claimant’s age group” were added in the case of the age discrimination claim). It is also noted that in order to substantiate an allegation of discrimination, the claimant must show that the provision criterion or practice in question puts his or her racial grouping at a “particular disadvantage” compared to the comparator grouping. It follows that if the disadvantage is slight or negligible, the claimant will not have established his or her case.

3.26 The defence of justification is open to a respondent in an indirect discrimination case. We were referred to the seminal sex discrimination case of Bilka Kaufhaus [1986] IRLR 586 where the European Court of Justice said as follows:-

“If the national court finds that the measures chosen by Bilka corresponded to a real need on the part of the undertaking, are appropriate with a view to achieving the objectives pursued and are necessary to that end, the fact that the measures affect a far greater number of women than men is not sufficient to show that they constitute an infringement of Article 119.” (Paragraph 26 of the judgment.)

3.27 To establish justification, it is necessary to show therefore that the employer has identified a legitimate aim and that the means that they have chosen to achieve it are proportionate and necessary. In the case of R (Elias) v Secretary of State for Defence and Commission for Racial Equality [2005] IRLR 788, a three stage approach to determining proportionality was identified as follows:-

(1) was the objective sufficiently important to justify limiting a fundamental right;

(2) was the measure challenged rationally connected to the objective?

(3) were the means chosen no more than was necessary to accomplish the objective?

3.18 Age discrimination

The relevant provisions in relation to age discrimination are to be found in the Employment Equality (Age) Regulations (Northern Ireland) 2006 (“the 2006 Regulations”) which provide as follows:-

“3(1) For the purposes of these Regulations, a person (“A”) discriminates against another (“B”) if

(a) on the grounds of B’s age A treats B less favourably than he treats or would treat other persons, or

(b) applies to B, a provision criterion or practice which he applies or would apply equally to persons not of the same age group as B, but:-

(i) which puts or would put persons of the same age group as B at a particular disadvantage when compared with other persons; and

(ii) which puts B at that disadvantage,

and A cannot show the treatment or, as the case may be, provision, criterion or practice to be a proportionate means of achieving a legitimate aim;

(2) A comparison of B’s case with that of another person under paragraph (1) must be such that the relevant circumstances in the one case are the same or not materially different, in the other;

(3) In this regulation -

(a) “age group” means a group of persons defined by reference to age, whether by reference to a particular age or a range of ages; and

(b) the reference in paragraph (1)(a) to B’s age, includes B’s apparent age.”

3.29 As with other types of unlawful indirect discrimination, indirect age discrimination may be justified on proportionality grounds. In this regard we were referred to the recent decision of the Supreme Court in Homer v Chief Constable of West Yorkshire [2012] IRLR 601.

3.30 We note that the decision in Homer was given on the basis of the Age Discrimination Legislation in Great Britain which is based on the Equality Act 2010. The law on the issue of justification is however the same in Northern Ireland as in the rest of the United Kingdom. The lead judgment was given by Lady Hale who observed that, “the law of indirect discrimination is an attempt to level the playing field by subjecting to scrutiny requirements which look neutral on their face but in reality worked to the comparative disadvantage of people with a particular protected characteristic. A requirement which works to the comparative disadvantage of a person approaching compulsory retirement age is indirectly discriminatory on grounds of age.”

3.31 In that case, there was a requirement placed on legal assistants employed by West Yorkshire Police to achieve a law degree before being promoted to the highest grade of their job. Mr Homer believed he had been discriminated against on grounds of his age as he could not achieve a degree before reaching retirement age. Lady Hale went on to consider the question of justification. She said as follows:-

“The approach to the justification of what would otherwise be indirect discrimination is well settled. A provision, criterion or practice is justified if the employer can show that it is a proportionate means of achieving a legitimate aim. The range of aims which can justify indirect discrimination on any ground is wider than the aims which can, in the case of age discrimination, justify direct discrimination. It is not limited to the social policy or other objectives derived from Article 6(1), 4(1) and 2(5) of the Directive but can encompass a real need on the part of the employer’s business: Bilka Kaufhaus GmbH v Weber Von Hartz”.

She went on to refer to the judgment of Lord Justice Mummery in Elias referred to above and then clarified the requirements for any justification. At paragraph 22 of the judgment she said as follows:-

“To be proportionate, a measure has to be both an appropriate means of achieving a legitimate aim and (reasonably) necessary in order to do so. Some measures may simply be inappropriate to the aim in question: thus, for example, the aim of rewarding experience is not achieved by age-related pay scales which apply irrespective of experience… The aim of making it easier to recruit young people is not achieved by a measure which applies long after the employees have ceased to be young. So it has to be asked whether requiring existing employees to have a law degree before they can achieve the highest grade is appropriate to the aims of recruiting and retaining new staff or retaining existing staff within the organisation… A measure may be appropriate to achieving the aim but go further than is (reasonably) necessary in order to do so and thus be disproportionate. The EAT suggested that “what has to be justified is the discriminatory effect of the unacceptable criterion.” Mr Lewis points out that this is incorrect: both the Directive and the Regulations require that the criterion itself be justified rather than the discriminatory effect be justified… Part of the assessment of whether the criterion can be justified entails the comparison of the impact of that criterion upon the affected group as against the importance of the aim to the employer… To some extent the answer depends on whether there were non-discriminatory alternatives available… So it is relevant to ask whether such a clause [a “grandfather clause” in the Homer case] could have represented a more proportionate means of achieving the legitimate aims of the organisation. On the other hand what is in issue here is not preserving the existing benefits, but affording entry to a newly created higher grade.”

3.32 Mr Mulqueen for the respondent referred us to the case of Allonby v Accrington and Rossendale College [2011] IRLR 634 as authority for the proposition that the claimant must identify the requirement or condition she seeks to rely on. The legal and factual issues before us, which were discussed at a number of Case Management Discussions and agreed between the parties, specify that the PCP for both discrimination claims is: “Did the respondent offer to transfer the London Mainline crew to Eurofleet?”. At the submission stage of this case, the claimant’s representative sought to argue that the provision, criterion or practice was the decision by BA as to what cabin crew were or were not at risk of redundancy and the decision concerning who did and did not transfer to Eurofleet under TUPE which constituted a discriminatory provision criterion and/or practice. The written submissions include the unhelpful sentence:-

“The tribunal might take the view that these decisions translate into a number of PCPs.”

We reminded Mr Potter at the hearing that it was for the claimant to identify clearly the provision, criterion or practice on which she sought to rely in respect of her discrimination claims. We pointed out to him that it was not appropriate or acceptable for the claimant to seek to “move the goalposts” at submissions stage of the case, nor was it acceptable for the claimant to invite the tribunal to “translate” what constituted a provision criterion or practice. This is for the claimant to assert and establish from the beginning of the case.

3.33 The respondent’s representative also referred us to the case of Rutherford v The Secretary of State for Trade and Industry (No 2) [2006] UKHL19 which considers the correct pool for comparison in a race discrimination case. The respondent asserted that the correct pool should be all the persons affected by the alleged provision, criterion or practice. In the race discrimination case the claimant alleged that it was the 32 Northern Irish outstation crew based at Belfast who should be compared to the Heathrow crew who, she asserted, were predominantly English. In relation to the age discrimination claim, again the claimant sought to modify her position at submission stage to allege that the provision criterion or practice of closing the outstations put senior cabin crew over the age of 40 at a particular disadvantage, rather than all cabin crew over 40, as originally alleged. The statistics the claimant produced indicated that there were disproportionately more senior cabin crew in that age range in the outstations as compared to London Heathrow. The respondent’s position was that the correct pool for comparison were all of the 115 outstation crew aged over 40 as compared to the London Mainline cabin crew aged over 40, again relying on Rutherford.

4.0 DECISION

4.1 Unfair dismissal

The first issue which we need to address in relation to this matter is the claim of unfair dismissal. In this regard the parties agreed that there was a redundancy situation. This means we need to consider the appropriate pool for redundancy and also the issue of the claimant’s place of work, as this is relevant in terms of deciding whether or not she was fairly selected for redundancy, together with the matters raised in questions 1(a)-(g) set out at para.1.1 above.

4.2 Place of employment

The claimant’s representative argued that although her contract stated that she was based at Belfast, this was not her place of employment. The contract of employment given to the claimant in 1997 after she returned from maternity leave sets out the following:-

“8 Place of work

8.1 You are required to work at the company’s operational base at Belfast. However, the company reserves the right depending upon operational requirements to require you to work either on a temporary of permanent basis at any other of the company’s operational basis. Your base will not be changed without consultation but the company’s decision will be final...

8.2 You must be available within 60 minutes of the base to which you are assigned unless otherwise agreed in writing. Failure to comply with this requirement may result in the termination of your employment. Travelling to and from your base reporting office shall be your responsibility unless otherwise agreed by the company in writing”.

At Section 3.3 of the contract it also states as follows:-

“Cabin crew are also required to:

3.3.1 Be familiar with and comply with the appropriate company policies and procedures, copies of which can be inspected in cabin services or any of the company’s operational bases where cabin crew are permanently employed” [emphasis added]”.

4.3 In cross-examination the claimant was asked about this. She initially disagreed that her place of work was Belfast, saying “Not all of the time, I started the day there”. It was pointed out to her that she started and finished her day there and came back to Belfast at the end of her shift. She ultimately agreed, “Yes, I was employed with bmi at Belfast”. We are also mindful of the evidence given by Mrs James that outstations (including the Belfast outstation) were places of work to which members of cabin crew were assigned and from which they went to board their flights. The employees assigned to the Belfast outstation included cabin crew, flight operation crew, check-in and ticket desk personnel, a local airport manager, baggage service personnel, engineers and premium lounge staff. The claimant agreed that there was an office, a crew room and a computer with a local server. Cabin crew at the Belfast outstation were locally managed by a cabin service performance manager although this lady worked part-time. It was the claimant’s evidence that she had to contact a cabin service performance manager in London quite often if she had any requests regarding her work. However, given that the claimant also worked part-time, this may not be particularly remarkable.

4.4 The claimant’s argument was that she spent approximately 50% of her flying time operating on the Belfast-London Heathrow-Belfast route and the remainder of her time flying from Belfast to other locations which could on occasion result in a night stopover. This only emerged on cross-examination and was not part of the evidence led by the claimant. She did not produce any rosters to support her allegation. This allegation was also disputed by Amy James who had considerable experience of working with bmi staff and cabin crew. Her estimate was that the claimant and staff at the outstations and other staff at the outstations spent approximately 80% of their time on the route between their home outstation and London-Heathrow. The point she made was cabin crew must always get back to their base at the end of their shift, and usually on the same day. She said that in the claimant’s case she would normally be back to Belfast within the same working day.

4.5 Having considered all the evidence and the reality of the claimant’s working patterns, we accept that the claimant’s place of employment was Belfast and that she would normally start from Belfast and return to Belfast at the end of her shift. Accordingly, we accept that the claimant was based in Belfast and that this was her place of work although she may well travel to other locations as part of her duties. In so doing we are applying the geographic or factual test as set out in High Table Ltd v Horst and Others and Bass Leisure Ltd v Thomas as set out in the paragraph above.

4.6 Although the claimant had to travel as part of her job, and this was in the nature of her work, she always returned to Belfast and this was her base. The claimant’s place of work is relevant in the context of her selection for redundancy and whether the employer’s business had no need (or a diminished need) for employees to carry out work in the place where the employee is employed (Article 174(1)(b)(ii) 1996 Order).

4.7 Pool for redundancy

We have considered the case law which was opened to us in relation to this matter carefully. We are very conscious that it is not for the tribunal to submit to substitute its view for that of the employer making a decision about the pool of redundancy. The question for us to consider is whether it was reasonable for the employer to decide on the pool of redundancy which it had chosen, i.e. the outstation crew from the four different outstations, in-flight chefs and cabin service managers, leaving the mainline bmi crew in London. The result of this was that it left the greater proportion of bmi crew in London relatively untouched. It is important to see this in context. Mr Francis’ evidence was that as a result of the Acquisition BA required a number of aircraft and a number of flight “slots” which it would continue to operate. It required staff to man the aeroplanes and the staff needed to have the appropriate licences to carry out the work. The existing bmi staff based in
London-Heathrow could carry out this work. He acknowledged that retaining all of these staff would leave BA overstaffed at London-Heathrow. He was willing to deal with this by way of voluntary redundancies (of which there were sixty) but did not agree that this gave rise to vacancies in Eurofleet Heathrow. It merely reduced the overstaffing to an extent. The decision in relation to the selection of the outstations for closure had to be seen in the context of a number of issues. The first of these was the strategic approach of British Airways to simplify its operations and have all staff based at either London Heathrow or London Gatwick. This meant that British Airways had already closed its own outstations in a number of regional airports in the UK and in Dublin. Closure of the outstations was therefore consistent with this approach. Karen Slinger’s evidence was that continuing with the outstations had costs implications because the offices had to be rented and manned and if the outstations were not required, this was an unnecessary cost. She did not put a precise figure on it, but again indicated that closure of the outstations was in keeping with the overall strategy of the business. The point was also made that because outstations crew had to return back to their base at the end of their shift, this restricted the work they could undertake. If they needed to return to, say, Belfast or Edinburgh at the end of a shift, they could not undertake a flight to Middle East or further away in Europe and still return home within their shift. Occasionally, the crew was night-stopped away from home base. More often, they were limited to flights between Heathrow and their home base, or set to another closer destination. This meant that they would have “downtime” on the ground at an airport waiting to take their final flight home. As a result, at the outstations were not used to their full potential and were much less productive than the staff based at Heathrow.

4.8 It was important for both British Airways and bmi that efficiencies should be made as quickly and promptly as possible. At the time of the Acquisition, bmi was losing £3 million per week. In 2009, BA had made an operating loss of £220 million. They had produced a new strategy for the future and had envisaged making an investment of up to £5 billion in new infrastructure and aeroplanes. Accordingly, it was essential to the business that they should not spend money unnecessarily, otherwise it was likely that there would not be a business in the longer term.

4.9 It is also important to bear in mind the industrial relations background. Mr Francis made us aware that in 2010/2011, BA had sought to review the collective agreements which they had with the unions in relation to cabin crew salaries. In BA’s view they paid their cabin crew at rates which were well above market levels. The attempt to review cabin crew salaries led to a serious industrial dispute involving strike action and therefore major disruption to BA’s business over a considerable period of time. The ultimate result of this was the new collective agreement reached between BA and Unite the Union in May 2011. This led to an agreement that BA would freeze recruitment into Worldwide Fleet (which dealt with its long haul services) and Eurofleet (which covered short haul services) and recruit new staff only into Mixed Fleet where the terms and conditions had been changed to reflect what BA considered were market rates. This rather fraught industrial relations history provided part of the backdrop to the decision regarding staff at Heathrow. Mr Francis noted in his evidence that it transpired that the influx of London mainline crew into Eurofleet created a short-term surplus of cabin crew. He went on to say that, “It was not industrially possible for BA to contemplate a redundancy situation within Eurofleet at that time”. He went on to say that it would have been “very challenging” from an industrial relations perspective to suggest compulsory redundancies within Eurofleet without causing an enormous upset with the unions and fresh industrial disharmony. BA accepted that they had a surplus of Eurofleet cabin crew as a result of the transfer in of bmi London mainline crew. The suggestion made by the claimant’s representative was that the way the employer should have dealt with the pool for redundancy was to put all outstation and London-Heathrow mainline cabin crew into the pool for redundancy, decide how many staff were required and at what level and then proceed to apply a selection process which would have resulted in compulsory redundancies throughout the cabin crew. This may have resulted in some staff from the outstations being requested to move to London, if they were successful in being selected to continue working for BA. If this happened, then it would also have led to a number of compulsory redundancies amongst the London mainline crew. The evidence given by Ms James was that the London mainline cabin crew at London Heathrow comprised approximately 695 people and there were a further 115 based at the outstations. In addition to the other categories of employees at risk of redundancy, BA would then have had to conduct a redundancy selection exercise involving almost 800 members of staff, rather than a redundancy exercise involving 115 who were at risk because their place of work was closing.

4.10 All in all, we consider that it was a reasonable decision for BA to decide to close the outstations, and make the staff employed there redundant, if they could not be successfully redeployed elsewhere. To adopt the course suggested by the claimant’s representative would in all likelihood have led to a major breakdown in industrial relations, already strained by the events of 2009/2011. It would have resulted in considerable upheaval for the members of staff involved, given that BA may have ended up making a considerable number of people redundant or requiring staff to move from Scotland or Northern Ireland to London-Heathrow. We therefore consider that it was a reasonable business decision based on common sense factors including industrial relations, BA’s overall strategy and cost considerations which led to the decision.

4.11 We are of the view that British Airways had genuinely applied their mind to the question of who should be in the pool for consideration for redundancy in accordance with the case law. The question is not whether the pool for redundancy could have been decided in some other way, but rather whether the identification of the pool lay within the range of conduct which a reasonable employer could have adopted. For all the reasons set out above we believe that BA’s approach in this matter was reasonable.

4.12 We believe also that it was not necessary for the respondent to pool all the staff at Heathrow and the outstations. There were business and operational needs (not least preservation of reasonable industrial relations at Heathrow) which meant that it was necessary and desirable for the staff not be pooled. Although there would be a surplus of cabin crew staff at Heathrow, Mr Francis seemed to believe that these staff could be absorbed into the workforce. Accordingly, it follows that the pool identified by BA of people at risk of redundancy would lead to closure of the outstations. As the claimant was employed at one of the outstations (see above), she was fairly identified as being at risk of redundancy.

4.13 The overall consultation process

It was drawn to our attention that BA had some 22 meetings with union representatives in relation to the Acquisition and its impact on bmi staff. Mr McMurray, who gave evidence on behalf of the claimant indicated that he had been at seven of these meetings. It seems clear that a number of the meetings concerned the terms and conditions for Heathrow based staff who were transferring into Eurofleet, and it is quite possible that Mr McMurray was not present at these meetings. It is fair to say however that there were a series of meetings involving Mr Francis, Ms James and other bmi and BA managers together with a variety of union representatives. BA agreed that any staff who wished to be considered for Mixed Fleet could move straight to interview without having to complete an application form, which was a concession they had never given before. BA considered the possibility of bmi staff transferring to Eurofleet, but in light of the collective agreement they had reached with Unite in 2011, believed they could not go back on their word to restrict recruitment into Eurofleet. It was agreed as a
“one-off” with the Union that the mainline crew at Heathrow could transfer into Eurofleet as there was an obligation on the party of BA to honour the bmi terms and conditions of employment to which the London mainline crew were entitled.

4.14 The outstation staff however had already been identified as being at risk of redundancy. While it is correct to say that the outstation staff were entitled to the protection of the TUPE regulations, the fact that they had been identified as being at risk of redundancy made them vulnerable. As far as those staff were concerned therefore, BA was looking primarily at possible ways to provide them with suitable alternative employment to avoid making them redundant rather than protecting their bmi terms and conditions. One option was for the staff to transfer to Mixed Fleet. This was an option which was available to the claimant, but she was unhappy to consider Mixed Fleet. She did not check with Ms James, Mr McBrierley or any of the individuals she had been asked she had been put in touch with as to what exactly her position would be if she applied to join Mixed Fleet.

However it was conceded by Mr Francis that the terms and conditions available to recruits to Mixed Fleet were not as beneficial as those for bmi crew. It was suggested that with the available bonus and hourly rate, the claimant could earn almost as much as she had with bmi but no figures were produced in relation to this. BA also offered a one off discretionary payment of £10,000 for those successful in securing a Mixed Fleet role which was recognised as an inducement, given that the initial terms and conditions with Mixed Fleet would not be as favourable as bmi terms and conditions.

4.15 It was noted that 18 former outstation crew and six in flight chefs made successful applications to join Mixed Fleet. Some of the outstation crew also applied for jobs at BA’s Gatwick Fleet and four out of 13 individuals interviewed were offered permanent positions.

4.16 In relation to the individual consultation, the claimant was sent letters in relation to the fact that her post was identified as being at risk of redundancy. She was subsequently sent a letter at the end of April about the opportunities within Mixed Fleet and details of possible vacancies within BA. She had an individual consultation meeting with Mr Brierley on 3 July which she initially dismissed at tribunal as being “a waste of time”. She did not raise any of her complaints in relation to the meeting with Mr Brierley on the day and we accept his account of the matter, that he had made aware by the claimant that she would prefer to remain in Belfast but might be interested in a move to Eurofleet. At that stage negotiations between the union and BA on bmi staff being able to move to Eurofleet were still under consideration. There were some administrative roles available within BA but the claimant acknowledged that she did not have computer skills which would have fitted her for these jobs.

4.17 The claimant agreed that she had been offered the opportunity to have a consultation with a representative from Fair Place Cedar in relation to career change which she had found helpful. She subsequently had a further interview with Jayne Dewey on 8 August, prior to being made redundant at the end of August. In light of this we are of the view that British Airways took appropriate steps to consult and inform both individually and at union level. We find that this procedure was in all respects reasonable.

4.18 The only issue which remains outstanding is whether the claimant should have been allowed an appeal against her redundancy. Amy James in her evidence indicated to us that there were a total of 882 redundancies made as part of the Acquisition. She indicated that BA simply did not have the resources to hold up to 882 appeal meetings if everyone had appealed. We do not think that this is a particularly strong argument. If the opportunity to appeal is desirable, it does not matter how many people are likely to want to appeal, they should be given access to an appeal. We do accept however some of the other points that she made: a series of meetings had been held with the union and with the individuals concerned. The respondent’s representative had counted 22 meetings between April and August 2012. The situation of the outstation crew and the means by which dismissals could be avoided or mitigated had been considered at some length. Miss James made the point that she did not believe that affected employees could raise concerns with more junior BA managers which had not already been discussed during the consultation process. She also considered that a genuine appeal was not possible as members of the outstation crew already knew that their ultimate boss, Bill Francis, had been part of the senior management team which considered the alternatives to dismissal and had come to the conclusion that there was no alternative to dismissal. While we believe that it would be best practice to provide an appeal, we acknowledge that in this situation, offering an appeal would probably not have made any difference to the final outcome, in that work for the claimant at her place of work had ceased.

4.19 Dismissal as a result of a TUPE transfer

We have considered whether the claimant was dismissed for an economic, technical or organisational reason contrary to the Transfer of Undertakings (Protection of Employment) Regulations 2006. This point was not emphasised by the claimant’s representative.

4.20 The claimant as we already said did not emphasise or suggest that she was dismissed because of the transfer itself or for a reason connected with the transfer which was not an economic, technical or organisational reason. The respondents indicated that the claimant was dismissed not because of the transfer itself or for a reason connected with the transfer but rather because of the closure of the former bmi outstations. It is however apparent that the bmi outstations may not have been closed at that time had it not been for the Acquisition of the business by BA. We tend to the view that the claimant was dismissed for a reason connected with the transfer, that is, because of the reorganisation of the business following the acquisition. We accept that the dismissal was for an economic, technical or operational reason. Bmi was haemorrhaging money at this time (over £3 million per week) and there was therefore clearly an economic reason to make savings. BA had already identified a strategy that it would operate all its flights from London Heathrow or from Gatwick and therefore there was an operational reason to move all the operations to London. There were therefore in our view both operational and economic reasons for the redundancy.

Indirect Discrimination on Grounds of Race

4.21 We move to consider the question of the claimant’s claims of indirect discrimination on grounds of her race and her age.Taking the claim of indirect race discrimination first of all, we note that it is for the claimant to establish the provision criterion or practice on which she intends to rely and for her to adduce evidence from which, in the absence of a reasonable explanation on the part of the respondent, a finding of discrimination can be made.

4.22 The only evidence which the claimant adduced in relation to this matter was to say that she and another 29 of her colleagues based in Belfast were all from Northern Ireland. Of the 32 cabin crew based at Belfast outstation, the claimant asserted that only two, namely a colleague from Scotland and one who was Italian, were not from Northern Ireland. She gave no evidence whatsoever about the staff at the other outstations. She asserted that of the London Heathrow Mainline crew, she was aware that there were 20 or 30 who were from Northern Ireland because she had got to know them over the years. She gave no evidence whatsoever of the racial makeup of the other cabin crew based in London. The submissions for the claimant state:-

“There is clearly a disproportionate number of Northern Irish people in the outstations and in particular the Belfast outstation as compared to Northern Irish/Irish people in London Heathrow. It is asserted that the PCP particularly disadvantaged people of a Northern Irish racial grouping and the claimant herself.”

4.23 The original provision, criterion or practice identified by the claimant’s representative and set out in the legal issues to be considered was whether or not the respondent had offered to transfer the London Mainline crew to Eurofleet. The next question for consideration was whether this amounted to a PCP and whether it applied to the claimant. The short answer to this question is that the respondent did offer to transfer the London Mainline crew to Eurofleet, and this provision criterion or practice was not applied to the claimant. In this regard, it was always helpful to look at the wording of the legislation. This specifically requires (at Article 3(1)(b) of the 1997 Order) that a person discriminates against another in any circumstances relevant for any provision of this order if:-

“He applies to that other a requirement or condition which he applied or would apply equally to persons not of the same racial grouping as that other but…”

4.24 From this it is clear that the provision, criterion or practice must apply to the claimant. The PCP identified by the claimant’s representative simply did not apply to the claimant. She was not transferred to Eurofleet along with the London Mainline crew. At the submissions stage of the case, the claimant’s representative sought to change the provision, criterion or practice and set out in his submissions that:-

“It is submitted that the decisions as to what cabin crew were or were not at risk of redundancy i.e. the London crew were not at risk and the outstations crew were at risk, and the decision concerning who did and didn’t transfer into Eurofleet under TUPE constituted a PCP.”

4.25 Mr Mulqueen understandably objected to this “moving of the goalposts” by the claimant’s representative at this stage. While we agree that the claimant is not entitled to change her case at submissions stage, we think it appropriate to deal with this point to avoid any dispute on the issue at a later stage.

4.26 The decision to close the outstations applied not just to cabin crew in Belfast but also to the crew based at Edinburgh, Manchester and Birmingham. The claimant gave no evidence in relation to the racial makeup of those groups. It may well be reasonable to assume that at least some of those based in Edinburgh were Scottish and some of those based in Manchester and Birmingham were English. However we do not deal in assumptions and we have no evidence of this because the claimant failed to adduce evidence from which she could prove her case. Accordingly, we take the view that there is no evidence before us from which we can make a finding that the claimant was discriminated against on grounds of her race, as she has failed to produce any reliable information in relation to this matter.

Indirect Age Discrimination

4.27 As set out at para. 4.23 above, the initial criterion identified by the claimant’s representative as regards age discrimination was not applied to the claimant and so we find that there is no case made out by the claimant in this respect. In relation to the claim of indirect age discrimination, the claimant again sought to vary the provision, criterion or practice as her representative had done in relation to the matter of race discrimination. The claimant was aged over 40. The claimant’s representative indicated that she was disadvantaged in that she was deprived of being part of a redundancy selection process involving all bmi Mainline crew who might have been based and worked out of London or London Heathrow. It was acknowledged by BA that the fact that there was a senior cabin crew imbalance throughout the bmi cabin crew was a factor they took into account in reaching their decisions about who would and would not transfer to the London Mainline crew. However, Karen Slinger was emphatic in her evidence that while it was a facto,r it was not a major factor.

4.28 Again the claimant’s representative sought to hedge his bets by suggesting that there was more than one pool in relation to this matter and also by varying the statistics in relation to the cabin crew affected. The London Heathrow group of cabin crew numbered 695. At the outstations as a whole there were 115 cabin crew and Belfast had 32. The respondent’s representative, Mr Mulqueen, contended that the correct pool for comparison were all of the 115 outstation crew (who were selected for redundancy) compared to the London Mainline cabin crew who were not. The claimant asserted in the course of the case that 44% of the London Mainline crew were over 40 years of age, based on the figures produced by British Airways. The information provided by British Airways revealed that 49.6% of the outstation crew were aged over 40. There was therefore a disparity of 5.6% which, in the respondent’s submission did not represent a significant or smaller group for the purpose of comparison of the correct pools.

4.29 The claimant had taken a different set of figures. Moving from the initial assertion set out in the facts and issues that the claimant had been discriminated against on grounds of her age, i.e., that she was over 40 while her comparators were under 40, Mr Potter then indicated that the correct comparators were the senior cabin crew in the outstations as against the senior cabin crew at London Heathrow. He asserted that the PCP particularly disadvantaged outstation senior cabin crew who were over 40. As evidence of this he pointed out that 83% of the Belfast senior cabin crew were over 40, 79% of Edinburgh senior cabin crew were over 40, and 69% of Manchester senior cabin crew were over 40 although none of the Birmingham senior cabin crew were over 40. In comparison, 44% of the Heathrow senior cabin crew were over 40. Again, we refer back to the legislation which contains the words:-

“A person “(A)” discriminates against another person “(B)” if… on the grounds of B’s age…”

4.30 We are of the view that the correct pool in this matter should be the cabin crew aged over 40, which is the PCP originally identified by the claimant. This was the group affected by the provision criterion or practice adopted by the respondent of closing the outstations and moving the London Mainline crew, but not the outstation crew, to Eurofleet. As noted by Mr Mulqueen, the disparity between the London Heathrow staff and outstation staff is much smaller on this basis and we are of the view that provision criterion or practice does not therefore put people in the same group as the claimant at a disadvantage.

4.31 If we are wrong in relation to the identification of the pool and the issue of “particular disadvantage”, we have also considered whether or not it is open to the respondent to justify the provision criterion or practice as a proportionate means of achieving a legitimate aim. Mr Potter emphasised that any justification must be on the basis of “costs plus” as set out in Cross v British Airways. Mr Mulqueen referred to the decision to close the outstations and to the rationale set out by Mr Francis, Ms Slinger and the other managers in this regard. These included the strategic plans already outlined by BA and the considerations of productivity and efficiency which are set out above. BA had already decided to move all its operations to Heathrow and Gatwick. This meant that they could maximise the use of their cabin crew to fly up to 900 hours a year which was the maximum, rather than 400 to 500 hours as was happening with staff based at the Belfast and Edinburgh outstations, in particular, because of the requirement for them to return back to the outstation at the end of their shift.

4.32 The reasons for BA’s action

The aim for British Airways was to implement their strategy of basing all staff at Heathrow or Gatwick, to reduce the number of outstations (as they had already done within their own business) and to endeavour to reduce the number of cabin crew without causing major upsets in terms of industrial relations. We accept that this was a legitimate aim. The way they chose to do this was through closing the outstations and through seeking voluntary redundancies amongst the Heathrow based staff. They required bmi staff based at Heathrow to continue to operate bmi’s routes and aeroplanes. The London based staff had the required skills match and qualifications to carry out this task. Because of the difficult industrial relations background at Heathrow, BA were prepared to live with an element of overstaffing. Presumably amongst their staff there will be an element of natural wastage and they were content to work through the issue of the overstaffing over time. We believe that these were appropriate measures to take, given the major restructuring of the business which was ongoing. The question remains as to whether it was “(reasonably) necessary” to achieve the respondent’s aims. We believe that it was. In comparing the impact of the criteria on the affected group as against the importance of the aim to the employer, we are aware that for the claimant and her colleagues aged over 40, there was a disadvantage to them. However the importance of the aim to the employer’s business was significant. It is probably not putting it too strongly to say that the survival of the business depended on implementing the planned BA strategy. This included integrating bmi’s business with BA’s business as in the most efficient and productive manner possible and unfortunately this entailed a number of redundancies.

4.33 The decision to close the outstations was based on strategic reasons and also cost. There were no vacancies in Eurofleet: recruitment into Eurofleet had been discontinued to try and obtain savings and efficiencies. We are mindful of Lady Hale’s direction in the Homer decision that the tribunal itself has to weigh the real needs of the undertaking as against the discriminatory effects of the requirement. We also note her comment that to be proportionate, a measure has to be both an appropriate means of achieving the legitimate aim and (reasonably) necessary in order to do so. She also commented that part of the assessment of whether the criterion can be justified entails the comparison of the impact of that criterion upon the affected group as against the importance of the aim to the employer. She also noted that to some extent the answer depends on whether there were non-discriminatory alternative available: could a non-discriminatory measure have represented a more proportionate means of achieving the legitimate aims of the organisation?

4.34 The claimant’s representatives suggest that she and her colleagues could have been moved to Eurofleet. That would have been non-discriminatory, but it would have compounded the problem which BA had already identified namely that they had too many cabin crew and a disproportionate number of senior crew. Because there were too many staff, it was necessary for BA to consider and implement redundancies. The respondent did offer the claimant the opportunity to transfer to Mixed Fleet and offered her a one off payment of £10,000.00 if she chose to do so. She turned this down on the basis that she would be worse off financially, although she had not investigated this in detail. It is our view that, given that BA had already taken a strategic decision not to recruit more staff into Eurofleet, that the claimant’s position was at risk of redundancy and therefore the employer was seeking to redeploy her, the offer of a transfer to Mixed Fleet was a reasonable one.

4.35 In light of the points made above, we find that although the provision, criteria or practice applied to the claimant was indirectly discriminatory in relation to her age, the respondent has succeeded in justifying its position on the grounds of the needs of its business which were based on strategy, productivity and efficiency as well as cost.

5.0 CONCLUSION

5.1 In conclusion, we summarise the view which we have set out above as follows.

5.2 Unfair Dismissal

The claimant was employed at Belfast. As a result of the decision by BA to close the bmi outstations, which was part of its overall strategy to improve productivity and efficiency, BA’s need for work at Belfast diminished markedly and so the claimant and her colleagues were fairly identified as at risk of redundancy. Given the decision to close the outstations as part of BA’s overall strategy to base staff at Heathrow and Gatwick, we believe that BA made a reasonable decision in selecting the pool of staff for redundancy.

5.3 In this context the mobility and location agreement in the claimant’s contract are relevant, but should not be used to avoid paying a redundancy payment where it is due. We do not accept that the respondent was obliged to move the claimant to London on foot of the mobility clause, especially as it was not required by their business needs.

5.4 The respondent took reasonable steps to consider alternative employment for the claimant. The offer of a move to Mixed Fleet, with a payment of £10,000 as compensation for the change in conditions, was a reasonable alternative to redundancy. BA also offered both individual and group advice on alternative training and publicised other internal vacancies.

5.5 In light of the fact that there had been detailed and lengthy consultation both on an individual basis and on a collective basis, we do not believe that the absence of appeal rendered the dismissal procedurally unfair.

5.6 The claimant was not unfairly dismissed contrary to Regulation 7 of the TUPE Regulations 2006. The respondent did not breach the claimant’s contract in relation to the application or operation of the mobility clause and/or the location policy.

Indirect Race Discrimination

5.7 The initial PCP identified by the claimant’s representative - whether the respondent moved the London mainline crew to Eurofleet - was not applied to the claimant and so she cannot raise a complaint in relation to it. (para 4.23 above)

5.8 As regards the selection of the claimant for redundancy, the claimant has failed to adduce any evidence from which we can make a finding that she has been discriminated against on grounds of her race as she has failed to show the racial makeup of the cabin crew either in the other outstations or at London Heathrow. The assertions made by the claimant in the course of the hearing do not in our view discharge the burden of proof on the claimant to establish her case on the balance of probabilities.

Age Discrimination

5.9 The provision, criterion or practice initially identified in this claimant was not applied to the claimant either.(see para.4.23 above). Subsequently the claimant’s representative argued that the discriminatory provision criterion or practice in this matter related to the decision by British Airways to close the outstations and to offer a transfer to Eurofleet to staff based at London Heathrow, but not to the claimant and the others based at the outstations. The initial assertion made by the claimant was that this disadvantaged her and those of her colleagues who were aged over 40. The claimant’s representative then sought to refine this and to argue that the claimant and her colleagues who were members of senior cabin crew aged over 40 were the group particularly disadvantaged by the PCP.

5. 10 In our view, the correct “pool” for consideration in this matter is the cabin crew aged over 40 as originally asserted by the claimant being the whole group to which the PCP applied. On this basis, we believe that the claimant has failed to show that she and her colleagues aged over 40 were particularly disadvantaged by the application of this PCP. If we are wrong in this, then for the reasons set out at paragraphs 4.27- 4.35 above, we consider that the respondent has discharged its duty to show that the decisions it took were a proportionate means of achieving a legitimate aim.

Chairman:

Date and place of hearing: 11-14 and 29 November 2013, Belfast.

Date decision recorded in register and issued to parties:

SCHEDULE 1

IN THE OFFICE OF THE INDUSTRIAL TRIBUNAL AND THE FAIR EMPLOYMENT TRIBUNAL

Una Neill v British Airways PLC

Submission on behalf of the Claimant

Introduction

1. The Claimant was a senior member of cabin crew, a Flight Supervisor, with BMI based in Belfast.

2. She was part of the BMI Mainline crew to be distinguished from BMI Baby and BMI Regional. The mainline crew were variously based at London Heathrow, Manchester, Edinburgh, Birmingham and Belfast.[1]

3. On 20^th April 2012 the Respondent acquired BHL (the parent company of BMI). For the purposes of the Transfer of Undertakings (Protection of Employment) Regulations 2006, this constituted a relevant transfer.

4. On 31 August 2012 the Claimant was made redundant by the Respondent (bundle page 276).

5. A redundancy situation was identified / announced by the transferor and transferee in the first part of April 2012.(See pages 114-123)

6. A redundancy process lasting from April until August 2012, which included collective consultation, is documented in the bundle from pages 114-283.

7. The Claimant lodged proceedings with the Industrial Tribunal and she has three main claims:

a. Unfair dismissal

The Claimant relies upon articles 126 and 130 of the Employment Rights (NI) Order 1996 and asserts that she was unfairly dismissed on the ground of redundancy by reason of :

1. unfairness in how the Respondent identified who was and was not at risk of redundancy, and in the Respondent failing to cast the net more widely when considering who ought to be in the redundancy pool;

2. Unfairness in how the Respondent acted when considering the question of suitable alternative employment;

b. Race discrimination: the Claimant argues that an indirectly discriminatory policy criterion or practice was applied causing her and her racial group disadvantage which the Respondent cannot justify;

c. Age discrimination: the Claimant argues that an indirectly discriminatory policy criteria or practice was applied causing her and her and people in a particular age range disadvantage which the Respondent cannot justify;

The evidence – statements and oral evidence

8. Some pertinent aspects of the evidence are as follows:

a. The Claimant indicated in oral evidence that she was rostered to work sometimes for one day and at times for more than one day. She indicated that sometimes she worked only on flights to and from London from Belfast. On other occasions she worked flights out of London to one of the many BMI destinations.

b. The Claimant estimated that approximately 50% of her time involved the Belfast London route and the rest involved flying to foreign destinations and other outstations. Mr Francis accepted this estimation.

c. The Claimant indicated that 30 of the 32 Belfast crew were from Northern Ireland.

d. She put the number of Irish or Northern Irish people based in London at some 20-30 crew.

e. In his oral evidence Mr Francis explained in his written and oral evidence that the decisions relating to outstation closure and who was and was not at risk of redundancy were predicated upon considerations of poor productivity in the outstations, the cost of running an outstation as compared with the more economical BA strategy of centralizing cabin crew in London.

f. When asked what consideration the Respondent had given to widening the pool, Mr Francis stated that he asked Unite for proposals. (Ms James written evidence in her statement on this point similarly rested on whether Unite had raised this issue rather than the respondent having responsibility to consider the matter.[para 28])

g. In questioning on the ‘place of work’ issue, and where cabin crew actually worked in practice, Mr Francis accepted that in practice the cabin crew worked in their base (Belfast) and flying around the world.

h. On being referred to Mr Walsh’s comments in a Select Committee (at page 288) he accepted that a person could work from any base as long as they can get there on time. He further accepted that the cabin crew role was inherently a mobile role.

i. Mr Francis accepted that cabin crew productivity was base dependent – in other words it had little or nothing to do with the actual cabin crew member per se.

j. Ms James accepted that when flying in and out of London [to foreign destinations or destinations other than their home bases] the roles of mainline cabin crew were the same. (She indicated that outstation crew did this approximately 15% of the time rather than 50% as indicated by the Claimant and Mr Francis. However and notably Ms James position was not put to the Claimant.)

k. Ms James further indicated that when operating out of their outstation to and from London, outstation cabin crew were probably performing a similar duty to mainline London crew.

l. Ms James accepted that people transferred as between bases from time to time.

m. It appears common case that in previous redundancies cabin crew were offered transfers to other bases. There was not consensus over whether this was ‘vacancy dependent’.(See the evidence of Karen Slinger and Nicola Jones.)

n. At paragraphs 69 and 70 Ms James states: “This was not a case where BA only required for example 50% of the outstation cabin crew. BA did not require any of the Outstation crew……Instead, considering their places of work, the crew assigned to the outstations formed the pool for redundancy. We did not think that it was appropriate or possible to place them in a pool with employees from different places of work based at Heathrow or Gatwick because their roles (in terms of duties and location) were different …….” (Ms James is apparently referring to inter alia paragraphs 6-20 [particularly 14] and 37-39)

o. Ms James at para 37 - 39 indicates that the London Mainline crew were not at risk of redundancy because they were ‘needed’ to operate the flights from Heathrow.

p. Ms James states at para 39 that BA had no comparable roles in terms of duties and location to the Outstation cabin crew roles. In cross examination on the comparability of and interchangeability of roles between crew in London and outstation crew, Ms James indicated that whilst the place of work and contracts were different, the duties on board were broadly similar.

q. Ms James indicated that the numbers of 695 London Heathrow cabin crew of which 635 transferring to Eurofleet and 60 not availing of the opportunity sounded roughly right. (Mr Francis indicated that the Respondent would provide the correct figures. They have yet to be clarified. The above represents the best evidence currently available subject to clarification.)

r. Ms Slinger indicated that the respondent considered absorbing the Belfast routes into the work of the London Heathrow cabin crew. It was confirmed by the Respondent side toward the end of the hearing that Eurofleet were undertaking the Belfast London route.

s. Senior cabin crew imbalance within the outstations was a factor taken into account in arriving at the challenged or impugned decisions.(See Amy James witness statement at paragraph 44(c) and Karen Slinger at pargraphs 20-23.)

t. Ms James (paragraph 58) and Mr Francis (paragraph 31) on a number of occasions made reference to their TUPE obligations to the London mainline crew.

The evidence – documentary evidence

9. The Claimant’s contract of employment is found at page 53 of the bundle.

a. Paragraph 3 concerns job title and function – at paragraph 3.2 she was required to serve the company in any part of the world as and when required.

b. Paragraph 8 concerns her place of work – para 8(1) she was required to work from the Company’s operational base at Belfast.

10. There was provision for requesting a transfer from one base to another– see page 77A. Under para 8.1 of the contract the Company could require a person to change base.

11. A 2011 joint settlement between the Respondent and Unite the Union is found at page 60. This established a reference point / guidance for addressing or dealing with future challenges.(Page 61) The collective agreement does not appear particularly relevant to the issues at the core of this case.

12. From the perspective of the Claimant side, some of the most important documentation in the case is found at pages 115 to 129. The Claimant side makes the following points arising out of this documentation:

a. A position or proposal was outlined on 12 April 2012 as to how BMI would be integrated with BA.

b. The proposal involved absorbing the London mainline staff including the cabin crew into BA;

c. The proposal involved redundancies at the outstations;

d. Underpinning the proposal at least in part was the assertion that particular roles were no longer needed in particular locations, i.e. the outstations. For this reason it was asserted that a redundancy selection process was not required.(Page 118)

13. A confidential paper composed by Mr Francis and prepared for a meeting on 13 April 2012 has been provided in discovery.(Page 124) This provides insight into and clarification of the approach adopted. As can be seen at page 125 a clear demarcation had been drawn between Heathrow cabin crew and outstation based cabin crew.

14. A letter from Bill Francis dated 17 April 2012 at page 147 is entitled ‘Cabin Crew – rationale for proposals’. Of particular note is the section at pages 147 to 148 entitled ‘proposal in relation to cabin crew based at Belfast Birmingham, Edinburgh and Manchester’. The explanation underpinning the proposal is stated in terms of BA’s need to have a sustainable operation with a competitive cost base. (It is a cost-based explanation.) The Respondent continues to rely upon these factors.

15. Collective consultation occurred between April and August 2012. Only a limited number of meetings and time spend therein addressed issues relevant to this case. It became clear in April that the Respondent intended to transfer the London Heathrow crew into Eurofleet.(See for example page 145) One of the main points made by the Union in these meetings was that the outstation crew should also be transferred into Eurofleet.(See page 145, 156, 164, 183 and 211)

16. BA considered points made by Unite and responded in a number of documents – see pages 201 and 218.

17. In the course of the discussions and responses, the demarcation identified above at paragraph 14 developed into an important substantive position that hallmarks the respondent’s approach in this case. It can be neutrally summarized as follows – London Heathrow cabin crew are not at risk of redundancy and therefore BA is obliged to protect this groups terms and conditions under TUPE and they are to transfer into Eurofleet; the outstations are at risk of redundancy. (see pages 201 and 218)

18. Mixed fleet was the main option for the outstation crew – the Eurofleet door was firmly closed.

19. At the conclusion of the 90 day consultation the respondent set out its position on relevant matters including cabin crew. (See in particular pages 252 to 253.)

20. The respondent provided information as to the job title, base and age of cabin crew in the 6 bases at page 293.

Unfair dismissal – article 130

21. It is accepted that there was a redundancy situation. The position articulated by the Union during the collection consultation is not four square with the case pursued by this Claimant. The Claimant is not challenging the Respondent position that for organizational reasons it was necessary to close the outstations and that there was a reduced need for cabin crew.

22. Of relevance in this case is the phrase “the place where the employee was employed”, found in article 174 (1)(a) and (1)(b) of the Employment Rights (NI) Order 1996.[2]

23. Two cases are notable and appear to indicate that when considering the place of work the Tribunals should apply a test of primary fact asking where does the person actually work? Contract terms can assist in that determination but are not necessarily determinative.[3]

24. A dismissal must be fair within the meaning of section 130 including sub-section 130(4). Guidance on fairness in redundancy dismissals was provided by the EAT in Williams and Compair Maxim [1982] IRLR 83, para 19.[4]

25. Central to our submission is the contention that a fair selection process should involve fairly identifying the pool and applying fair criteria to the persons in the pool to determine who is retained. The following issues are of particular relevance:

a. In a recent authority, Silber J outlines the principles relevant to redundancy pool selection emphasizing that the employer must genuinely apply its mind to the question of the pool composition. (Capita v Byward [2012] IRLR 814 at para 31(d))

b. Consideration should be given to the possibility of establishing a pool from which redundancies could be made.(Wrexham Golf Co Ltd v Ingham EAT 190/12)

c. An employer must act reasonably in determining the pool for redundancy. (See footnoted summaries of relevant case-law: Taymech v Ryan EAT/663/94[5]; Hendy Banks City Print Ltd v Fairbrother EAT 691/04/TM[6]; Capita v Byward 2012 IRLR 814 [7].)

d. The unit of selection should not be artificially small to as to exclude a group of workers.(Byard at paragraph 31(c))[8]

e. The pool should include those doing the same work or work of a similar kind. (Kvaerner Oil and Gas Ltd v Parker and others EAT 444/02)

f. The breadth of the pool should reflect inter-changeability as regards the skills of potentially redundant employees and jobs which are not at risk of redundancy;(Wright v Bluesky International Ltd 1901774/09; Blundell Permoglaze Ltd O’Hagen EAT 540/84; Lomond Motors v Clark 19/09 EAT; see Harvey at paragraph 1685.)

g. Where there are different sites, an employer must consider whether to include employees from different sites in the pool. In this regard, geographical location and linkages as between sites are relevant factors to take into account;(Highland Fish Farmers v Thorburn EAT 1094/94) Given its factual relevance, it is worthwhile setting the Thorburn case out in greater detail in the body of the submission in case-note form:

The respondents operated a fish farming enterprise at a number of sites in Scotland. At the time of the dismissal, they had ten fish farms at six sea water sites and four freshwater sites located in the north of Scotland, from Portree to Cromarty and from Torridon to Lochcarron. All of these sites were staffed, and had a range of different equipment. They employed about fifty people in a range of occupations. The Claimants worked in Torridon. The employer closed that site and made the employees redundant. The Industrial Tribunal were agreed on two points, namely, that the dismissals were due to redundancy, and that there had been a lack of consultation which rendered the dismissals unfair. They disagreed, however, on the question whether the selection of the respondents for redundancy had been unfair. The majority held it was unfair – the pool was unlawful. The Tribunal stated:-

“The Tribunal accepted that the Torridon site was managed as a separate costs unit with certain distinct record keeping. The relationship of Aird to Torridon was a close one due to geographic proximity. By a majority the Tribunal found that there was close support between the two sites. It was the (dissenting) Chairman's view of the evidence that the sites were distinct operations and that the Torridon site was not a satellite of or subsidiary to the Aird site…… By a majority the tribunal found that the Applicants had been unfairly dismissed by reason of unfair selection for dismissal. In the tribunal's majority view the selection criteria of the Respondents was fundamentally flawed. Any reasonable employer faced with two sites in geographical proximity and providing mutual support would not have focused on one single site as the pool for selection.

The Employment Appeal Tribunal (Scotland) upheld the decision of the majority and some of the most relevant parts are included below:

“It appears to us to be manifest, on reading of the statement of reasons for the decision, that the reason for the disagreement between the minority and the majority was that they gave different answers to the question whether the Aird and Torridon sites should be regarded as separate sites. It is also manifest, in our view, that that is a question of judgment upon the particular facts and circumstances, and upon the evidence before the Industrial Tribunal, and that we could only interfere with the decision of the majority if it could be shown that they had erred in law in some way; or that their decision was perverse. The majority of the Industrial Tribunal approached the question correctly; they clearly understood that the question was whether any reasonable employer would have acted as the appellants did. In the argument on behalf of the appellants, a great deal of stress was put on the proposition that an employer is entitled to a degree of flexibility or discretion in the selection of the pool from which redundancies are to be chosen; and that, in the present case, the employers' approach, which was to apply a last in/first out principle on a site by site basis, after allowing for part-time workers, was a perfectly normal and reasonable means of going about the selection, and certainly one which might have been adopted by a reasonable employer. That argument undoubtedly has force, but it seems to us that it largely misses the point in the present case. The majority of the Industrial Tribunal nowhere criticise the site by site policy adopted by the appellants, nor the selection of part- timers for redundancy first, nor the application of It was last in/first out. The reason for their conclusion is their view that no reasonable employer would have treated the Aird and Torridon sites as separate sites……… it was for the Industrial Tribunal to assess the weight and value of the evidence of the appellants' witness and of the respondents respectively. It was also for them, in the light of that evidence, to assess the significance of the geographical proximity and the linkages between the sites. They were not required to lay down any wider propositions, but only to deal with the particular case before them. The points to which the majority refer were all points to which they were entitled to have regard.”

26. The principle of ‘bumping’ is arguably relevant. (Thomas & Betts Manufacturing Ltd v Harding [1980] IRLR 255[9];)

27. Consultation must be meaningful and adequate. (Mugford v Midland Bank plc [1997] IRLR 208)

28. The employer must consider the question of suitable alternative employment.(Vokes v Bear [1973] IRLR 363)

Unfair dismissal – evidential submission

29. The Claimant contends that the dismissal was unlawful:

(a) The Claimant worked as mainline cabin crew and was based in Belfast;

(b) Her base location was Belfast where she spent part of her working time. However Belfast was not her place of work. Her place of work was in airports (including but not restricted to her base airport) and in aircraft.

(c) In terms of inter-changeability of role, the Claimant could have requested a transfer to other bases and could have been transferred by the Respondent to other bases regardless of her preference.

(d) It is notable and relevant that for a short period the Claimant actually was based in London.

(e) Crucially she was prepared to work from London as of September 2012.

(f) The Claimant spent part of her working time flying the Belfast – London route. She spent part of her working time flying other routes out of London Heathrow.(The proportion of time spent on the Belfast London route is a matter of dispute – see above and below.)

(g) The Respondent approached the transfer and integration of BMI by costing the bases and taking into account its more economic organizational model of having all cabin crew based at London Heathrow. It decided to close the uneconomic outstations. None of this is in dispute.

(h) However where (it is respectfully submitted) the Respondent fell down was in its consideration of the redundancy issue. The Respondent crudely and arbitrarily determined who was at risk of redundancy by simply integrating the London Heathrow crew into its existing operation and making the outstation based cabin crew redundant. This approach embodied a substantive failure to properly or adequately address its statutory obligations to act fairly in a redundancy situation.

(i) The cabin crew based in London were excluded from the ‘at risk’ group and simply transferred into Eurofleet.

(j) The cabin crew in the ‘outstations’ were not given the opportunity of transferring into Eurofleet.

(k) It is submitted that the an employer acting reasonably would have

(1) acknowledged that cabin crew in the various bases discharged similar, comparable and interchangeable roles; (2) identified the number of cabin crew needed following the merger; (3) identified the number of cabin crew (particularly outstation cabin crew) who were prepared to be based in London; and (4) if the number at 3 exceeded the number at 2 carried out a selection process.[10]

(l) The Respondent failed, or failed to properly or adequately, consider what cabin crew should and should not be at risk of redundancy in all the circumstances. This failure constitutes a breach of its statutory obligations.

(m) The Respondent never considered widening the pool of persons at risk of redundancy and thereby opening the opportunity for people like the Claimant to compete for a position in Eurofleet.

(n) The cabin crew in the ‘outstations’ were deprived of the opportunity of being part of a fair selection process involving all BMI mainline crew who were prepared to be based in and work out of London / London Heathrow.

(o) Rather than considering how many cabin crew were needed to run the operation, the Respondent arbitrarily made outstation cabin crew redundant.

(p) Whilst Mr Francis indicates at paragraph 26 of his witness statement that BA had no requirement for outstation cabin crew to carry out their duties in the outstations, the Belfast route was continuing and required cabin crew. We now know this work was simply absorbed by the London Heathrow cabin crew.(See the evidence of Karen Slinger.)

(q) Mr Francis states at paragraph 30 of his witness statement: “As there was a need to keep certain of the bmi aircraft and routes flying from London heathrow, there was no reduction in the need for employees based at London Heathrow to do the work of crew before and after the transfer. The same crew were needed by BA at the same location to operate these routes….” This statement is a flawed statement. Outstation crew crewed routes out of London to various European and other foreign destinations. Mainline crew, (including the Claimant and her outstation colleagues), operated the routes, not just London Heathrow crew.

(r) Similarly Mr Francis at paragraphs 31-33 states that “As certain of the bmi planes and routes transferred to BA the London mainline Crew assigned to Heathrow simply transferred/mapped across into BA on the same terms and conditions and have carried out the same or similar duties as before the transfer. We considered that the London mainline Crew were in a different position to the Outstation crew. This was not a redundancy situation affecting the London mainline Crew and …. BA was obliged to protect their terms and conditions under TUPE. In contrast the closure of the Outstations meant that there was a cessation of BA’s need for cabin crew at each of those locations.” It is submitted on behalf of the Claimant that this is flawing reasoning – the duties of the London crew cannot be so clearly demarcated from the duties of the outstations crews – rather mainline crew from the various bases were rostered and were crewing flights together.

(s) Mr Francis at paragraph 35 of the witness statement indicates that there was no requirement for the outstation cabin crews’ roles given the closure of the outstations. Again this is flawed reasoning - insofar the role is identified with working largely on a flight to and from the base and London, the route was continuing.

(t) There is no direct or clear nexus as between the closure of the base and the disappearance of a cabin crew role. Moreover it is not as simple as the Respondent attempts to make out – the outstation crew were involved in crewing the London routes destinations other than their bases. In other words the the roles of cabin crew in all the bases was intermingled.

(u) At paragraph 47 Mr Francis further references a need for the London mainline crew to operate the newly acquired aircraft and routes. This is predicated upon paragraphs 30-33 and flawed as explained above. There was a need for cabin crew or mainline crew – but no need for only London mainline crew.

(v) According to the Respondent the Belfast crew was responsible for the vast majority of flights from London to Belfast. After the implementation of the changes, Eurofleet undertook this work. Query the fairness of absorbing the routes but refusing to consider or properly consider absorbing the crew that was crewing most of the flights in this route. Why were the outstation cabin crew not given the opportunity to be integrated into or absorbed by the London crew given that they were (apparently) largely responsible from crewing these routes?

(w) A further anomaly and illustration of arbitrariness is the fact that the approach implemented led to a ‘surplus’ of cabin crew. A more rational approach identifying the numbers needed and carrying out a fair selection process would have avoided a ‘surplus’.

(x) The Claimant’s case is that the cabin crew roles as between the bases were not only inter-changeable, but to a not insignificant extent they were in fact the same.(The figures of 50% and 85%/15% were put forward in the course of the evidence to indicate the amount of time spent on outstation work as opposed to working on routes out of London to European and other destinations other than a person’s base outstation. )

(y) Ms James statement at paragraph 14 addresses differences in contracts as between London Heathrow crew and outstation crew. It is submitted that the differences outlined are largely base specific (e.g. location of base, and London weighting). In relation to her paragraph 14c, it was accepted by Ms James that the paragraph was inaccurate in part – i.e. outstation crew did not return to their base every night. Consequently whilst London Heathrow crew had more flexibility this was a relative concept and base specific.

(z) At paragraphs 69 and 70 Ms James states: “This was not a case where BA only required for example 50% of the outstation cabin crew. BA did not require any of the Outstation crew……Instead, considering their places of work, the crew assigned to the outstations formed the pool for redundancy. We did not think that it was appropriate or possible to place them in a pool with employees from different places of work based at Heathrow or Gatwick because their roles (in terms of duties and location) were different …….” (Ms James is apparently referring to inter alia paragraphs 6-20 [particularly 14] and 37-39) Again this appears to be ex post facto reasoning and is clearly flawed reasoning – it was clearly possible to transfer employees to different bases. It is submitted that the Respondent did not properly consider or address the matter otherwise it would not have made such a blatantly erroneous statement of evidence. If the Respondent had addressed the matter, in our respectful submission, it could and would have found it appropriate to broaden the pool.

(aa) Ms James at para 37 - 39 indicates that the London Mainline crew were not at risk of redundancy because the London Mainline crew ‘assigned’ to these routes were ‘needed’ to operate the flights from Heathrow. This is flawed reasoning at the heart of which is the erroneous suggestion that the London Mainline crew were operating these routes when, as Ms James accepted in cross examination, it was the mainline crew who were operating these routes and not just the London mainline crew. (Albeit that Ms James contended in this part of her evidence that the London crew did the majority of the work. )

(bb) Ms James in her oral evidence contended that the main role of the outstation crew was to operate flights to and from their base. This was the first time this contention had been advanced – there is no trace of it in the papers - and it was was never put to the Claimant.

(cc) Ms James states at para 39 that BA had no comparable roles in terms of duties and location to the Outstation cabin crew roles. However there was comparability in role according to Ms James such that the role was the same in part and similar / broadly similar in part. Moreover people could and did transfer bases and indeed the Claimant was for a time based in London.

(dd) Ms James accepted that senior cabin crew imbalance was a factor in the impugned decision.

(ee) Ms Slinger indicated that the respondent considered absorbing the Belfast routes into the work of the London Heathrow cabin crew. However it is submitted she was unable to adequately explain why the Respondent had failed to consider absorbing or integrating the Belfast cabin crew along with the routes.

(ff) It is submitted that the Respondent erroneously concluded that TUPE only applied to the London Heathrow cabin crew. Even for a moment adopting the Respondent’s reasoning that the outstation crew worked mainly on the route from their home base to London, it is notable that said crew did not transfer along with ‘their routes’.

(gg) It is submitted that the Respondent was unable to provide evidence that it considered whether London Heathrow cabin crew should be part of the at risk group and part of a redundancy pool given that they had (it is respectfully submitted) comparable and interchangeable roles.

(hh) It is notable that the factors underpinning the closure of the outstations were generically cost relevant – reduced productivity of the outstations, reducing the cost of having outstations and the greater economy of centralization of cabin crew in London. They are all cost relevant factors.

(ii) Finally and central to the disadvantage and unfairness to which the Claimant was subjected, is the gulf in contract terms as between the Claimant’s BMI terms and conditions and Eurofleet terms and conditions on the one hand, and Mixed Fleet terms and conditions on the other. To have gone to work in Mixed Fleet the Claimant would have lost her seniority and her pay would have virtually halved.

Suitable alternative employment

30. The second main unfair redundancy argument concerns suitable alternative employment. The focus of this point concerns the London Heathrow crew who were offered and did not avail of the opportunity to transfer into Eurofleet (approximately 60 out of 695). It is argued that the Claimant was treated unlawfully by reason of the failure and refusal to offer her one of the positions offered to but not taken up by London colleagues.

31. The terms and conditions of employment in mixed fleet were greatly inferior to her pre-existing terms and conditions and the terms and conditions enjoyed by Eurofleet cabin crew; (See Mr Francis statement at para 41(b); and his evidence confirmed the basic of £12,000)

32. Mixed fleet was not a suitable option for the Claimant. However the terms and conditions of Eurofleet would have made base transfer viable.

Discrimination

33. As explained in the opening, the claims of discrimination involve largely the super-imposition of discrimination law onto the facts and evidence as outlined above.

34. In short, the decisions as to what cabin crew were or were not at risk of redundancy, and who did and didn't transfer into Eurofleet under TUPE, indirectly impacted and disadvantaged the Claimant and persons in her groups in the outstations.

Race discrimination

35. First, the relevant legislation is article 3(1A) of the Race Relations (NI) Order 1997:

(1A) A person also discriminates against another if, in any circumstances relevant for the purposes of any provision referred to in paragraph (1B), he applies to that other a provision, criterion or practice which he applies or would apply equally to persons not of the same race or ethnic or national origins as that other, but—

(a) which puts or would put persons of the same race or ethnic or national origins as that other at a particular disadvantage when compared with other persons;

(b) which puts [ or would put] that other at that disadvantage; and

(c) which he cannot show to be a proportionate means of achieving a legitimate aim.

36. Dealing with the various elements of indirect discrimination:

a. The PCP – a PCP is a provision, criterion or practice.(See British Airways v Starmer [2005] IRLR 862) A practice appears to be something less formal than a provision – and can be broadly described as a way of doing something. A one-off decision can be a provision.

b. A PCP can include criteria, standards or principles applied in relation to a redundancy process.(Perera v Civil Service [1983] IRLR 166)

c. Article 5(1) of the Order states as follows:

5(1) Subject to paragraphs (2) and (3), in this Order—

“racial grounds” means any of the following grounds, namely colour, race, nationality or ethnic or national origins;

“racial group” means a group of persons defined by reference to colour, race, nationality or ethnic or national origins, and references to a person's racial group refer to any racial group into which he falls.

d. One relevant racial grouping is people who are Northern Irish and that relates to their national origins.(Paul v Chief Constable [2004] NIIT)

e. Disadvantage involves differential treatment which raises a justifiable sense of grievance – it is analogous to a detriment and something that a reasonable person would complain about.

f. Particular disadvantage is required – that is the PCP puts the Claimant’s racial grouping at a particular disadvantage compared to a comparator grouping.

g. To establish comparative disadvantage it is sometimes necessary to construct pools and conduct statistical analysis. The hallmark of such an exercise should be logic. The key issue is whether the PCP in question is having an indirectly discriminatory effect on the proscribed ground in question when the relevant pools A and B are compared.

h. There is a close nexus between the disputed criteria (PCP) and the composition of the pool. Thus in London Underground Ltd v Edwards (No.2)[1998] IRLR 364, Potter LJ stated

“The identity of the appropriate pool will depend upon identifying that sector of the relevant workforce which is affected or potentially affected by the application of the particular requirement or condition in question, and the context or circumstances in which it is sought to be applied. In this case the pool was all those members of the LU workforce, namely train operators, to whom the new rostering arrangements were to be applied…”

i. Extra jurisdictional comparisons can be made.[11]

j. An indirectly discriminatory PCP can be justified. Justification involves the employer establishing that the PCP was a proportionate means of achieving a legitimate aim. (Loxley v BAE Systems Land Systems (Munitions & Ordnance) IRLR 2008 IRLR 853.)

k. The European Court of Justice in Bilba Kaufhaus [1986] IRLR 586

seminally identified the core elements in justification:

“If the national court finds that the measures chosen by Bilka correspond to a real need on the part of the undertaking, are appropriate with a view to achieving the objectives pursued and are necessary to that end, the fact that the measures affect a far greater number of women than men is not sufficient to show that they constitute an infringement of Article 119.” (Paragraph 26;)

l. At the heart of determining both legitimate aim and proportionality is the concept of business need or reasonable business need. (Baker v National Air Traffic Services Ltd (ET 2203501/07) In that context it is relevant to consider whether there are alternatives to the impugned step.

m. It seems that considerations of cost alone do not amount to a legitimate aim. The employer must establish what have come known as cost plus reasons to justify an indirectly discriminatory PCP.(Harvey on Industrial Relations and Employment Law Part L at para 347)

n. In the Elias case at para 165 a three stage approach to determining proportionality was identified:

(1) was the objective sufficiently important to justify limiting a fundamental right;

(2) was the measure challenged rationally connected to the objective?

(3) were the means chosen no more than was necessary to accomplish the objective?

o. However all of the above must now be considered in the light of the Homer decision. In order to be proportionate a measure has to be an appropriate means of achieving the aim and reasonably necessary to do so.(Homer v Chief Constable [2012] IRLR 601 and para 22.)

Age discrimination

37. The relevant provisions are found in the Employment Equality (Age) Regulations (NI) 2006 No 261 –

Discrimination on grounds of age

3. (1) For the purposes of these Regulations, a person (“A”) discriminates against another person (“B”) if —

(a) on the grounds of B’s age, A treats B less favourably than he treats or would treat other persons, or

(b) A applies to B a provision, criterion or practice which he applies or would apply equally to persons not of the same age group as B, but—

(i) which puts or would put persons of the same age group as B at a particular disadvantage when compared with other persons, and

(ii) which puts B at that disadvantage,and A cannot show the treatment or, as the case may be, provision, criterion or practice to be a proportionate means of achieving a legitimate aim.

(2) A comparison of B’s case with that of another person under paragraph (1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.

(3) In this regulation—

(a)“age group” means a group of persons defined by reference to age, whether by reference to a particular age or a range of ages; and

(b) the reference in paragraph (1)(a) to B’s age, includes B’s apparent age.

Evidential submissions on discrimination

38. The race discrimination claim can be set out as follows:

a. It is submitted that the decisions as to what cabin crew were or were not at risk of redundancy (i.e. the London crew were not at risk and the Outstations crew were at risk) , and the decision concerning who did and didn't transfer into Eurofleet under TUPE, constituted a PCP – a provision, criterion and/or practice. The Tribunal might take the view that these decisions translate into a number of PCPs.

b. The Claimant was disadvantaged in that she was deprived of the opportunity of being part of a fair selection process involving all BMI mainline crew who were prepared to be based in and work out of London / London Heathrow. The Claimant was further disadvantaged as she was not afforded the opportunity of transferring into Eurofleet.

c. The comparison is between the London Heathrow cabin crew and the outstation cabin crew – either the Belfast outstation cabin crew or in the alternative all the outstation cabin crew.

d. The Claimant’s racial group is Northern Irish. In the Belfast outstation there were 30 people from here – i.e. perceived as from Northern Ireland. The Claimant indicated that some 20 to 30 people in Heathrow were of a Northern Irish / Irish background.

e. The numbers in the relevant pools are:

i. the London Heathrow group numbers 695;

ii. all of the outstations numbered 114

iii. the Belfast outstation numbered 32.

f. There is clearly a disproportionate number of Northern Irish people in the Outstations and in particular the Belfast Outstation as compared to Northern Irish / Irish people in London Heathrow.

g. It is asserted that the PCP particularly disadvantaged people of a Northern Irish racial grouping and the Claimant herself.

h. It is denied that the indirect discrimination can be justified.

i. It is submitted that the reasons relied upon all relate to cost. Indeed it is submitted that Mr Francis accepted in cross examination that the reasons underpinning the decision were essentially about cost.

j. In the alternative it is submitted that the justification reasons are not proportionate and do not represent reasonable necessity.

k. Indeed as indicated above the contention that there was a business or organization necessity in transferring the London mainline crew to Eurofleet (see Bill Francis at paras 30-33 and 47 and Amy James in the paras as set out above) is flawed and lacking in logic.

39. The age discrimination claim can be set out as follows:

a. The decisions as to what cabin crew were or were not at risk of redundancy, and who transferred into Eurofleet under TUPE and who didn't, constituted a PCP – a provision, criterion and/or practice. In particular, senior cabin crew imbalance in the outstations was a factor taken into account in arriving at these decisions.[12]

b. The Claimant’s age group is 40+ / over 40.

c. The Claimant was over 40. She was disadvantaged in that she was deprived of the opportunity of being part of a fair selection process involving all BMI mainline crew who were prepared to be based in and work out of London / London Heathrow. The Claimant was disadvantaged as she was not afforded the opportunity of transferring into Eurofleet. As indicated senior cabin crew imbalance in the outstations was a factor taken into account in arriving at these decisions.

d. As already identified, the relevant pools are - the London Heathrow group numbering 695; and the outstations numbering 114 and the Belfast outstation numbering 32.

e. The statistics are as follows:

i. 83% of the Belfast senior cabin crew (SCC) were over 40 (15 out of 18);

ii. 79% of the Edinburgh SCC were over 40 (15 out of 19)

iii. 69% of the Manchester SCC were over 40 (11 out of 16)

iv. None of the Birmingham SCC were over 40 (0 our of 2)

v. Total outstation SCC over 40 – 41 out of 55 = 75%;

vi. 44% of the Heathrow SCC were over 40 (95 out of 215);

f. It is asserted that the PCP particularly disadvantaged outstation senior cabin crew who were over 40. There were disproportionately more senior cabin crew in that age range in the outstations as compared to London Heathrow. Consequently the PCP had an indirectly discriminatory impact on this group.

g. The justification given on age is a cost related.[13]

h. The justification does not meet the test of reasonable necessity.

i. In conclusion it is denied that the indirect discrimination can be justified in relation to age for essentially the same reasons as discussed under race and outlined above.

Conclusions

40. In conclusion it is submitted that in deciding who was and was not at risk of redundancy the Respondent acted in a misconceived, arbitrary, illogical and unlawful manner. Dividing the mainline crew on the basis of location was not fair.

41. The cabin crew were performing the same or similar duties and indeed were regularly rostered together for both internal and external flights. The roles and work of cabin crew transcended location. As Mr Francis accepted in cross examination – the cabin crew role is a mobile role.

42. It was particularly unfair that routes such as Belfast London should be absorbed by the London based crew but the cabin crew who were (apparently) most regularly employed on those routes were not given the opportunity to continue working them.

43. Not only was all of this unfair for the purposes of unfair dismissal law. Given the numbers of senior cabin crew it constituted indirect age discrimination. Also, and almost inevitably, the closure of bases in Scotland and Northern Ireland caused indirect racial discrimination on the ground of national origin.

44. The Respondent is weak on justification – neither appearing to have a legitimate aim nor being able to demonstrate that it was reasonably necessary to exclude the outstation cabin crew from being based in London and having the opportunity of joining eurofleet.

45. To conclude:

a. the respondent’s formation of the view that one base was better than five or six bases for economic reasons and that it was therefore necessary to close the ‘outstations’, did not mean the redundancy pool automatically self defined confined to the outstations. Rather given the inherently mobile nature of the cabin crew role, and the actual interchangeability of daily roles amongst mainline crew, the pool should have been a larger more inclusive pool. Moreover for the London crew to absorb routes such as the London Belfast route which was (apparently) largely or mostly crewed by the outstation crew without permitting said outstation crew to be similarly absorbed or have the opportunity to compete for the remaining (or not at risk) roles appears arbitrary, outside the range of reasonability and unfair.

b. Similarly the ex post facto explanations ring hollow – the suggestion that the London crew were needed to crew the London slots and routes because they had always done so - clearly a flawed argument - and that it was not possible or appropriate for the outstation crew to be placed in a pool with London crew given their different roles - again an argument which starts to disintegrate when scrutinized through the lens of logic.

c. It is respectfully submitted that the Respondent simply failed to properly consider the redundancy pool question and has stumbled into an arbitrary and irrational approach in this redundancy situation which also indirectly discriminated against people on the grounds of national origin and age. In short the Respondent in this case has acted irrationally and arbitrarily, without sufficient forethought or consideration, and unlawfully.

46. Finally it is hoped that the submission addresses the questions raised by the Tribunal in correspondence following the hearing. If not we will seek to address / further address same in oral submissions.

Michael Potter

Bar Library, Belfast.

Neil Gillam

Donnelly and Kinder Solicitors

28 November 2013

IN THE OFFICE OF THE INDUSTRIAL TRIBUNALS

AND THE FAIR EMPLOYMENT TRIBUNAL

CASE REFERENCE NUMBER 2431/12

BETWEEN:

MARIE UNA NEILL

CLAIMANT

-and-

BRITISH AIRWAYS PLC

RESPONDENT

WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT

Introduction

1. The Claimant is Mrs Una Neill and her date of birth is 9^th February 1962. The Respondent is British Airways PLC.

2. By way of an application to the Office of Industrial Tribunals dated 30^th November 2012, the Claimant and several colleagues presented allegations against the Respondent of unfair dismissal, breach of contract and indirect discrimination on the grounds of race and age. The Claimant is the test/lead Claimant in this action.

3. The Tribunal hearing relating to the aforestated allegations took place between 11^th and 14^th November 2013 at Killymeal House, 2 Cormac Quay, Belfast (the 11th November being a reading day).

4. Witnesses for the Claimant were:

a. Mrs Una Neill (Claimant)

b. Mr David McMurray (Regional Industrial Organiser, Unite the Union)

c. Mrs Nicola Jones (former Respondent employee and presently providing independent services for trade unions including Unite the Union)

Witnesses for the Respondent were:

a. Mr William Francis (presently, Head of Global Services and was, at the relevant time, the Respondent's Head of In-flight Customer Experience)

b. Mrs Amy James (Manager - Worldwide Fleet and former General Manager of In-flight Service, British Midland Airways Limited (bmi))

c. Ms Karen Slinger (Manager of Resource Planning for In-flight Customer Experience)

d. Mr James Brierley (Manager - Eurofleet)

Background

5. In June 1984, the Claimant commenced employment with bmi as a member of cabin crew on a temporary contract of six months; her contracted operational base was Belfast. The Claimant recommenced employment with bmi in March 1985, again out of her operational base at Belfast. Between November 1985 and March 1986, the Claimant moved to a new operational base at London Heathrow and resided in London throughout this period. The Claimant returned to her operational base in Belfast in March 1986 where she remained until her redundancy in August 2012.

6. At all times relevant to these proceedings the Claimant was a member of Unite the Union and her contract of employment was subject to collective agreements [See Clause 14 of the Claimant's contract of employment at Page 57 of the trial bundle].

7. It is the Respondent's case that, on 17^th April 2012, the Claimant was informed that her position was at risk of redundancy [Page 150 of the trial bundle]. The Claimant was, in addition, provided with correspondence dated 12^th April 2012 from Mr Wolfgang Prock-Schauer (CEO bmi) [Page 115 of the trial bundle]. Employees who were identified as at risk of redundancy at this time were 114 members of cabin crew based at the former bmi outstations in Belfast, Birmingham, Edinburgh and Manchester and 18 In-flight Chefs and 15 Cabin Service Performance Managers based at London Heathrow [See Item (g)(i) & (ii) at Page 127 of the trial bundle].

8. It is common case that the formal acquisition of British Midland Limited (the parent company of bmi) by the Respondent took place on 20^th April 2012. This enabled the Respondent, through a subsequent integration process, to acquire new slots and 20 aircraft.

9. At all times relevant to these proceedings, the Respondent operated from its bases at London Heathrow and London Gatwick. Further, the Respondent operated three types of cabin crew fleet at its London Heathrow base in addition to the Gatwick Fleet operating from its London Gatwick base:

a. Worldwide Fleet (long haul operations)

b. Eurofleet (short haul operations)

c. Mixed Fleet (short and long haul operations)

10. On foot of an express agreement reached with Unite the Union dated 11^th May 2011 [Pages 60 – 77 of the trial bundle], the Respondent permanently discontinued any recruitment of cabin crew into the Respondent's bmi Worldwide fleet or Eurofleet. Mr Francis gave clear and uncontested evidence about the Respondent's rationale for entering into such agreement at paragraphs 3 to 15 of his witness statement.

11. On 13^th April 2012, a ninety day collective consultation process commenced between representatives of bmi, the Respondent and Unite the Union. It was the uncontested evidence of the Respondent that between 13^th April 2012 and 30^th August 2012, there were twenty two meetings between the aforestated parties during which the Respondent conscientiously consulted with Unite the Union about all matters relating to the proposed redundancies. In addition, the Respondent held an individual consultation meeting with the Claimant on 3^rd July 2012 [Page 248 of the trial bundle].

12. By way of correspondence dated 16^th July 2012, the Claimant was served with notice of her compulsory redundancy and informed that her last working day with the Respondent would be 30^th August 2012. The Claimant was also provided with a redundancy calculation which included her notice pay, which amounted to £10,006.96 [Page 256 & 257 of the trial bundle].

13. A final individual consultation meeting was held between the Claimant and the Respondent (Jane Dewy – Product and Service Manager) on 8^th August 2012 [Pages 267 – 269 of the trial bundle].

14. Prior to the termination of the Claimant's contract of employment, the Claimant was offered the option to apply for vacancies in:

a. the Respondent's Mixed Fleet;

b. the Respondent's London Gatwick Fleet;

c. the Respondent's subsidiary company, BA Cityflyer Ltd; and

d. General vacancies within the Respondent's organisation which were advertised on its intranet site and which were regularly e-mailed to the Claimant.

In addition, the Claimant was provided with outplacement support by the Respondent through Fairplace Cedar (experts in career transition, management and coaching) which the Claimant accepted in cross examination that she found helpful.

Unfair Dismissal

Place of Work

12. Article 174 (1) of the Employment Rights (NI) Order 1996 states:

For the purposes of this Order an employee who is dismissed shall be taken to have been dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to:

(a) the fact that his employer has ceased or intends to cease –

(ii) to carry on that business in the place where the employee was so employed

13. It was asserted by Counsel for the Claimant in opening submissions that the focus of the Claimant's case was the Respondent's decision about who was at risk of redundancy as a consequence of their acquisition of bmi. It was suggested that the …“nub”… of the case was the place of work or ….“work location of the Claimant”…. .. Counsel for the Claimant suggested that all bmi mainline crew did the same or similar jobs and flew together regularly on flights internally/externally and that their place of work was therefore ….”in the air and on the ground in airports”… .

14. The Respondent respectfully agrees that the Claimant's place of work is central to this case and would assert that the Claimant's place of work was at her operational base at Belfast City Airport. In support of this assertion the Respondent notes as follows:

a. The Claimant accepted under cross examination that the document found at pages 53 – 59 of the trial bundle represented her express terms and conditions of employment. At section 3.3 of this contract of employment it states that:

Cabin crew are also required to:

3.3.1 Be familiar with and comply with the appropriate Company Policies and Procedures, copies of which can be inspected in Cabin Services or at any of the Company’s operational bases where cabin crew are permanently employed (Respondent emphasis)

At section 8 of the terms and conditions under the title “Place of Work” it states:

8.1 You are required to work from the Company’s operational base at Belfast ….. .

It is the Respondent's respectful submission that Section 3.3 of the Claimant's terms and conditions clearly state that an operational bases is the place where staff are permanently employed. Further and/or in the alternative, Section 8.1 of the terms and conditions defines the Claimant's place of work as the operational base as Belfast.

Further support of the fact that the Claimant’s place of work was Belfast can be found at Section 6.5 of the stated terms and conditions of employment where the Claimant’s leave entitlement is noted as ….” pro rata current local entitlement (full local entitlement in Republic of Ireland) in lieu of Bank/Public holidays ”… .In addition, at Section 8.3 of the contract of employment, it states that …”you must be available within sixty minutes of the base to which you are assigned unless otherwise agreed in writing by the Company”…. .

b. Under cross examination the Claimant was asked on five occasions if she accepted that her place of work/employment was Belfast. Subject to the Tribunal's note of this evidence, the Respondent submits that the following exchange took place between Counsel for the Respondent and the Claimant:

Q. I put to you fairly and squarely that in the context of paragraphs 3.3 and 8.1 of your contract of employment, your place of work and employment was Belfast.

A. I was employed to be based in Belfast.

Q. I put it to you your place of work was Belfast.

A. Not all of the time, I started the day there.

Q. You start and finish there. You come back home to Belfast. The point put to you quite clearly was your place of employment was Belfast. Do you agree or disagree?

A. Yes, I was employed by bmi at Belfast (Respondent emphasis)

It is therefore the respectful submission of the Respondent that the Claimant accepted that her place of work/employment was at Belfast, and not, as the Claimant's Counsel has asserted "in the air and on the ground in airports".

c. The uncontested evidence of Mrs Amy James was that outstations (including the Belfast outstation,), were permanent and physical places of work to which members of cabin crew were assigned [See paragraphs 6 – 14 of Mrs James statement]. Further, under cross-examination, the Claimant accepted that, at the Belfast outstation, the employees assigned to this outstation included cabin crew, flight operations crew (Pilots/First Officers), check-in/ticket desk personnel, an administrative assistant, a local manager (Airport Manager), engineers, baggage service personnel and premium lounge staff. It was further accepted by the Claimant that, at the relevant time prior to her redundancy, the outstation at Belfast had an office space, a crew room and a computer system with a local server.

It was the Respondent's uncontested position that the cabin crew at the Belfast outstation were locally managed by the Cabin Service Performance Manager whose responsibilities included undertaking the entire range of people management activity for members of cabin crew at the Belfast outstation including disciplinary and grievance matters, right to flexible working requests, performance reviews, leading and communicating with their teams and administrative procedures such as issuing Belfast car parking passes. The Claimant stated at Tribunal that she rarely saw the Cabin Service Performance Manager. The Respondent would suggest that this is not surprising given that both the Claimant and the Cabin Service Performance Manager worked part-time but does not detract from the fact that these were the responsibilities attached to the Cabin Service Performance Manager role.

d. Under cross-examination, the Claimant suggested that she spent approximately 50% of her flying time operating on the Belfast/London Heathrow/Belfast route and the remainder of her time flying from Belfast to other locations which could have, on occasions, resulted in a night stopover. The Respondent highlights the fact that the Claimant did not lead such evidence in her witness statement and/or failed to produce any documentary evidence (e.g. duty rosters) in support of such an assertion notwithstanding the fact that the Respondent sought copies of all records relevant to the Claimant's claim as part of discovery (page 38). Further, this Tribunal will recall that Mrs James gave evidence that, in her years of experience of working with bmi, she believed that the Belfast crew would have spent closer to 80% of their time working on the Belfast/London Heathrow/Belfast route. Indeed, Mrs James said that this was part of the role of the outstation cabin crew. The Respondent submits that the representations by Mrs James reflect the true reality of the Claimant's and her colleagues position while employed as cabin crew and is indicative of the fact that the Claimant was based in and worked in and out of Belfast

e. The Claimant accepted that she started and finished her working duties in Belfast whether that was on the Belfast/London Heathrow/London route or if her duties took her to other locations.

f. On transferring from Belfast to London in or about 1985 the Claimant accepted that her terms and conditions were changed to state that her operational base had changed to London Heathrow. Again, upon returning to Belfast the following year, the Claimant's terms and conditions changed to reflect the fact that her operational base changed from London Heathrow to Belfast. The Respondent suggests that this is supportive of the fact that business operations were undertaken from different locations and places of work.

g. The Claimant did not present any evidence to support the assertion that her place of work was “in the air and on the ground in airports”. It was noticeable that the Claimant did not call any additional witness evidence on this issue.

15. There may be situations where employees are required to be mobile during the course of their employment. A bus driver, lorry driver, sales representative or as in this instance, cabin crew, may have national/international routes to cover as part of their daily duties and responsibilities. In such circumstances these types of employees are sometimes referred to as “local employees” and may be firmly tied to an operational base, depot or office [See Harvey on Industrial Relations and Employment Law Vol.1 Section E Para 816 &7].

16. Helpful authorities in this area are Bass Leisure Ltd –v- Thomas [1994] IRLR 104, EAT followed by Table Limited –v- Horst [1997] IRLR 513, CA. This latter Court of Appeal decision endorsed what is known as the “factual or geographic test” as the exercise to be applied when determining the location of an employee's place of work. The Court of Appeal endorsed the following abstract from the EAT’s judgment in the Bass Leisure case:

…………''I am in broad agreement with this interpretation of the statutory language. The question it poses—where was the employee employed by the employer for the purposes of the business?—is one to be answered primarily by a consideration of the factual circumstances which obtained until the dismissal. If an employee has worked in only one location under his contract of employment for the purposes of the employer's business it defies common sense to widen the extent of the place where he was so employed, merely because of the existence of a mobility clause. Of course the refusal by the employee to obey a lawful requirement under the contract of employment for the employee to move may constitute a valid reason for dismissal, but the issues of dismissal, redundancy and reasonableness in the actions of an employer should be kept distinct … If the work of the employee for his employer has involved a change of location, as would be the case where the nature of the work required the employee to go from place to place, then the contract of employment may be helpful to determine the extent of the place where the employee was employed. But it cannot be right to let the contract be the sole determinant, regardless of where the employee actually worked for the employer.''

17. It is the Respondent's respectful submission that the Claimant’s contract of employment clearly defined her operational base as her place of employment where she was permanently employed. The documents put to the Claimant on the issue of mitigation referred to cabin crew vacancies with other airlines at their Belfast base, suggesting that this is an entirely normal approach within the industry. Unlike the employees in the High Table Ltd and Bass Leisure Ltd cases, the Claimant's operational base did not change at any relevant time prior to her redundancy. The Claimant clearly started and finished her period of duty in Belfast. Further, the Claimant's contract of employment did not expressly state or imply that her place of work was “in the air and on the ground in airports”. Applying the factual and geographical test to each of the issues as raised at a. to g. above, the Respondent respectfully requests that this Tribunal concludes that the Claimant's place of work was Belfast.

18. Finally, if the Claimants assertion that her place of work was “in the air and on the ground in airports” is correct, this would lead to the unsatisfactory situation where some crew who spend more time in the air and in airports outside the United Kingdom might have their terms of employment affected by territorial jurisdiction issues [Pitman –v- Foreign and Commonwealth Office 2003 ICR 699]. This clearly could not have been the intention of the parties when they were entering into this contractual arrangement.

19. Having due regard to Article 130(1) of the Employment Rights (NI) Order 1996, in determining whether the dismissal of the Claimant was fair or unfair, it is for the Respondent to firstly show the reason for the dismissal. It is common case that the Claimant's role was made redundant and, therefore, the Claimant was dismissed on the grounds of redundancy (Article 130(2)(c)). The Tribunal must then turn its attention to Article 130(4)(a)&(b) of the 1996 Order which states that:

Where the employer has fulfilled the requirements of paragraph (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)—

(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case.

20. Flowing from the central issue in this case regarding the Claimant's place of work is the contention that the Respondent acted unreasonably by refusing to pool all cabin crew employees in Belfast, London, Edinburgh, Birmingham and Manchester together before deciding what employees would be made redundant. The Respondent rejects this assertion.

21. At hearing, the Claimant did not challenge in any respect the decision by the Respondent to close the outstations, including the Belfast outstation. Indeed, under cross-examination, the Claimant stated that she fully understood the rationale leading to the outstation closures. Further, this Tribunal will be aware of the unchallenged evidence led by the Respondent relating to costs, productivity, efficiency and simplification which it had to consider when faced with an acquired airline (bmi) whose business was losing over £3M a week. [See paragraphs 4 -23 of Ms Slinger’s first statement]. The Tribunal will also be aware of the unchallenged evidence led by the Respondent regarding its operating model and the fact that it has, over a number of years, maintained a cost model which is centred around working out of London Heathrow and London Gatwick, rather than the UK regions.

22. In this context, as explained above, the outstations, including the Belfast outstation, were viewed by the Respondent as individual and distinct places of work. Further, the Respondent was faced with a situation where there was no longer a business and operational need for the same. It was obviously the correct decision for the Respondent to close all of the outstations. As a result of proposing to close these outstations, the roles of the members of cabin crew based there were at risk of redundancy.

23. In contrast, the roles of the bmi cabin crew based at London Heathrow were not at risk of redundancy. The Respondent's UK operation is based at London Heathrow and London Gatwick only. Following the acquisition of British Midland Limited and through the process of integrating bmi into its organisation, the Respondent acquired 20 aircraft and slots and it was the Respondent's intention that these aircraft and slots would be utilised at London Heathrow Airport. As Mr Francis said in evidence, as there was a need to keep certain of the bmi aircraft and routes flying from London Heathrow, there was no reduction in the need for employees based at London Heathrow to do the work of crew before and after the transfer. The same crew were needed by the Respondent at the same location to operate these routes. Whilst the TUPE Regulations applied to all the relevant employees, business and operational requirements resulted in the closure of the outstations and retention of the former bmi cabin crew at London Heathrow.

24. When it comes to applying the statutory test of fairness to defining the redundancy pool there are no fixed rules in relation to same [Thomas & Betts Manufacturing Ltd –v- Harding [1980] IRLR 255]. The pool must be judged according to the range of reasonable responses test and a Tribunal is respectfully reminded that it cannot substitute its own view of the appropriate pool. In Taymech –v- Ryan EAT/663/94 Mr Justice Mummery noted that:

….”There is no legal requirement that a pool should be limited to employees doing the same or similar work. The question of how the pool should be defined is primarily a matter for the employer to determine. It would be difficult for the employee to challenge it where the employer has genuinely applied his mind to the problem”…..

This approach has been consistently adopted by the EAT in cases such as Hendy Banks City Print Limited –v- Fairbrother and Others UKEAT/0691/04 TM and Halpin –v- Sandpiper Brooks UKEAT/0171/11. In Capital Hartshead Ltd –v- Byard UKEAT/0445/11 Silber J having reviewed the case stated:

''Pulling the threads together, the applicable principles where the issue in an unfair dismissal claim is whether an employer has selected a correct pool of candidates who are candidates for redundancy are that

(a) “It is not the function of the [Employment] Tribunal to decide whether they would have thought it fairer to act in some other way: the question is whether the dismissal lay within the range of conduct which a reasonable employer could have adopted” (per Browne-Wilkinson J in Williams v Compair Maxam Limited [1982] IRLR 83);

(b)“…the courts were recognising that the reasonable response test was applicable to the selection of the pool from which the redundancies were to be drawn” (per Judge Reid QC in Hendy Banks City Print Limited v Fairbrother and Others (UKEAT/0691/04/TM);

(c) “There is no legal requirement that a pool should be limited to employees doing the same or similar work. The question of how the pool should be defined is primarily a matter for the employer to determine. It would be difficult for the employee to challenge it where the employer has genuinely applied his mind [to] the problem” (per Mummery J in Taymech v Ryan EAT/663/94);

25. It is the Respondent's respectful submission that it did genuinely apply its mind to whether the pool for redundancy should include all former bmi cabin crew but that for reasons relating to location, strategy, costs, efficiency, business and operational matters this was simply not possible. Both Mr Francis and Mrs James were questioned heavily on this issue by the Claimant's Counsel. Further, it is clear that, during the very detailed discussions held between the Respondent and Unite the Union, that this matter was raised and discussed further and given additional consideration by the Respondent. During a meeting of 20^th April 2012 Mr McMurray (Unite the Union) stated that …”Unites position is for everyone to default under TUPE to EF LHR”….. The response given by Mr Francis was …”We will take that proposal away to consider”... . [See pages 57 of the trial bundle]. This was then considered and responded to (see Mrs James statement, paragraphs 49-65).

26. It may also be of assistance to the Tribunal that the IDS Employment Law Handbook on Redundancy discusses the issue of multi-site redundancy [Chapter 8.101 at Page 241] and whether the employer should treat employees working at different sites as separate groups for the purpose of redundancy selection. This legal commentary suggests that pool selection in multi-site redundancy situations will vary and much will depend upon the particular employer’s business needs. This commentary highlights the case of Clews & Others –v- Liverpool City Council EAT 463/93 where an employer’s decision not to pool two groups of security personnel on two different sites was found to be reasonable. The Respondent in this instance had compelling business and operational needs not to pool all cabin crew in the same pool for the purposes of selection for redundancy.

27. In support of the Claimant's case, both Mr McMurray and Mrs Jones suggested that, when the Respondent closed outstations in Manchester (2006) and Glasgow (2009), staff were given the option of transferring to London Heathrow. In response the Respondent highlights the follows:

a. In 2006 and 2009, there was a significant need for cabin crew in the Respondent's Worldwide Fleet and Eurofleet and, as a consequence, members of cabin crew in these affected outstations were given the opportunity to apply for any vacant roles at London Heathrow or Gatwick;

b. In 2008/09 the Respondent made an operating loss of £220M. Following on from the need to implement significant cost cutting measures, the Respondent entered into a written agreement with Unite the Union on 11^th May 2011[Pages 60 -77 of the trial bundle]. As a consequence of same all recruitment into Worldwide Fleet and Eurofleet was permanently discontinued;

c. Since November 2010 (therefore, following the closure of the Respondent's Manchester and Glasgow bases), there was no growth in manpower in either Worldwide Fleet or Eurofleet until the integration of the former bmi cabin crew based at London Heathrow into Eurofleet. Since November 2010, all new cabin crew recruits have been employed by the Respondent on Mixed Fleet terms and conditions. As Mr Francis stated in evidence, the former bmi cabin crew based at London Heathrow were integrated into Eurofleet following the transfer under TUPE because Eurofleet was the "best fit" (paragraphs 29-55 of Mr Francis' statement). Mr Francis explained at paragraph 41 of his witness statement why it was not a realistic option for the Respondent to integrate these members of cabin crew into the Respondent's Mixed Fleet.

d. The treatment of the Claimant was consistent with the Respondent's treatment of the members of cabin crew at the Respondent's former bases in Manchester and Glasgow in that the Respondent allowed the Claimant the opportunity to apply for vacant roles in its organisation. These included roles in the Respondent's Mixed and Gatwick Fleets, the Respondent's organisation generally, and the Respondent's subsidiary company, BA Cityflyer Limited.

28. In light of the foregoing, there were no vacancies in the Respondent's Eurofleet or Worldwide Fleet for the Claimant to be considered for.

29. With regard to any suggestion by the Claimant of procedural unfairness relating to her dismissal the Respondent rejects same. The Claimant was initially informed that her role was at risk of redundancy by way of correspondence dated 17^th April 2012 [Page 150 of the trial bundle]. A detailed collective consultation process took place between the Respondent and the Claimant's trade union involving some twenty two meetings between April and August 2012. On 30^th April 2012 the Respondent wrote to the Claimant indicating the options of applying for Mixed Fleet and highlighting the general vacancies within the Respondent organisation to include (without limitation) administrative support roles and In-flight Business Manager positions.

30. On 3^rd July 2012 the Respondent held an individual consultation meeting with the Claimant. This Tribunal is respectfully requested to reject the Claimant's version of this meeting and will recall that, under cross-examination, the Claimant accepted that she incorrectly alleged in her statement that the only offer on the table prior to this meeting was a job in Mixed Fleet [See paragraph 22 of the Claimants statement]. No explanation was provided to the Tribunal by the Claimant in relation to this clear and serious misrepresentation of the facts.

31. The evidence as presented by Mr Brierley in relation to this meeting was clear and consistent. This witness had no recollection of being forty minutes late for this meeting, as alleged, and noted that if he had been late then he would have made a note of same in his diary [See page 247A of the trial bundle].

32. At paragraph 24 of the Claimant's witness statement she states ….”I wanted to know what other opportunities there were in BA – he couldn’t tell me. I also wanted to know what my redundancy entitlement would be – he told me to go and find out”…. . These allegations were rejected by Mr Brierley and clearly must be incorrect. Prior to the meeting the Claimant had been made aware of the options available to her in the correspondence dated 30^th April 2012. She was aware that vacancies were advertised on the Respondent's intranet site and was receiving regular e-mails in relation to available positions. The evidence presented by this senior member of the Respondent's organisation was that he did not tell the Claimant to go and find out her redundancy payment and that he would never make such a comment to any employee at risk of redundancy.

33. This Tribunal is respectfully requested to conclude that the meeting of 3^rd July was not a waste of time or perfunctory, as alleged, but in fact represented an open and good natured exchange between the parties [Page 248 of the trial bundle].

34. On 16^th July 2012, the Claimant was informed in writing that her contract of employment would transfer to the Respondent on 20 August 2012 and that her last working day with the Respondent would be 31st August 2012 [Pages 256 – 258 of the trial bundle]. A final meeting was held with the Claimant on 8^th August 2012 [ Pages 267 & 268 of the trial bundle].

35. As explained above, prior to her dismissal, the Respondent offered the Claimant the option of applying for other positions within its organisation namely, roles in the Respondent's Mixed Fleet and London Gatwick Fleets, general vacancies within the Respondent organisation and roles in the Respondent's subsidiary company, BA Cityflyer Limited. For the reasons stated earlier, there were no vacancies in the Respondent's Eurofleet or Worldwide Fleet for the Claimant to be considered for. The Claimant states that, as some of the London Mainline Crew who were due to be integrated into the Respondent's Eurofleet opted for voluntary redundancy or roles in the Respondent's Mixed Fleet, she and her colleagues at the outstations should have been given the option of applying for these "vacant" roles. The Respondent respectfully submits that this assertion should be rejected. The Respondent has given clear, consistent and cogent evidence about its decision to permanently discontinue recruitment into its Eurofleet and Worldwide Fleet and why, therefore, there were no vacancies in these fleets for the Claimant to be considered for. Mr Francis also addressed this specific point at paragraphs 55-57 of his witness statement. The Respondent also provided the Claimant with outplacement support from Fairplace Cedar which the Claimant accepted in cross examination that she found useful. Despite all of the above, the Claimant rejected the opportunity to apply for any available positions within the Respondent's organisation and indeed was clearly only interested in considering employment in Belfast.

36. This Tribunal will recall that Mr McMurray stated under cross-examination that he believed that the Respondent was less than genuine in the manner that it carried out the collective consultation process. Such a representation should be rejected as this serious allegation was not contained in Mr Murray’s original witness statement. Further, in correspondence dated 15^th June 2012 (two months into the collective consultation process) Mr Richardson (lead negotiator from Unite the Union) stated to Mr Francis that …”these difficult discussions have, I trust you will agree, been conducted in good faith, with both parties seeking to find ways to avoid redundancies, reduce any numbers that may occur and mitigate their impact”….[Page 233 of the trial bundle].

37. This Tribunal will also be aware that Mr McMurray stated that he was present at most of the collective consultation meetings [See paragraph 2 of Mr McMurray’s statement]. Again this assertion is incorrect in that Mr McMurray attended only seven out of the twenty two meetings. Further, it is surprising that someone who alleged a detailed involvement and knowledge of the consultation process had not even read the agreement reached between the Unite the Union and the Respondent on 11^th May 2011 [Pages 60 – 77 of the trial bundle]. This Tribunal is therefore respectfully requested to give Mr McMurray’s evidence little or no weight.

38. In all the circumstances, the Respondent respectfully submits that its dismissal procedure was detailed, and fair. In the alternative if there was any shortcomings in the Respondent's dismissal process, which is denied, the Respondent rely on Article 130 B (2) of the Employment Rights (NI) Order 1996 which states:

….”failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of Article 130(4)(a) as by itself making the employer's action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure”.

Given the Respondent's business and operational requirements and the failure by the Claimant to pursue any of the employment opportunities presented to her by the said Respondent, dismissal was always going to take place.

39. The Claimant further alleges that her dismissal was unfair because she was dismissed because of the transfer itself or for a reason connected with the transfer which was not an economic, technical or organisational reason entailing changes in the workforce [See Regulation 7(1) & (2) of the Transfer of Undertakings (Protection of Employment) Regulations 2006].

40. It is common case that the Claimant transferred to the Respondent under TUPE on 20^th August 2012 and was dismissed from employment with the Respondent on 30^th August [See Page 256 of the trial bundle]. The Respondent does not accept that the Claimant was dismissed because of the transfer itself and/or because of a reason connected with the transfer. The Claimant was dismissed following the closure of the former bmi outstations and because she did not wish to apply for any vacant roles within the Respondent's organisation. It is common case that the outstations were costly and inefficient, as recognised by bmi when it decided to close its outstations in Teeside, Dublin and Glasgow (paragraph 18 of Ms Slinger's statement). The Respondent asks that the Tribunal infer that, had the Respondent not acquired British Midland Ltd, and/or integrated bmi into its organisation, the Claimant may be in the same position that she is in now.

41. Further, and/or in the alternative, if this Tribunal believes that the dismissal was connected with the transfer then the Respondent respectfully suggests that this was because of economic, technical or organisational reasons entailing changes in the workforce. As previously stated bmi were losing over £3M per week necessitating changes (an economic reason). The Claimant's place of employment was at the Belfast outstation, the Respondent's operations were based in London and, as such, all acquired aircraft and slots were transferred to London (an operational reason). The strategy adopted by the Respondent well in advance of the stated redundancies was to close all of its outstations (entailing redundancies and thus changes in the workforce). Finally, the unchallenged evidence of the Respondent was that outstations, including the Belfast outstation, were costly and inefficient [See statements from Mr Francis at paragraphs 3 – 21, Mrs James at paragraphs 43 – 65 and Ms Slinger’s first statement at paragraphs 4 – 23]. Therefore the primary facts associated with these present proceedings clearly support economic, technical or organisational reasons why it was necessary to make changes to the workforce in the manner as set out by the Respondent.

Breach of Contract

42. From the agreed legal and factual issues [Item 3 Page 50 the trial bundle] the Claimant purports to allege that the Respondent breached the Claimant's contract of employment in relation to the application or operation of the mobility clause and/or the location policy contained in the said contract. The Respondent assumes that the Claimant is referring to Clause 8.1 of her contract of employment [Page 55 of the trial bundle] which states:

…” the Company requires you to work either on a temporary or permanent basis at any other of the Company’s operational bases. Your base will not be changed without consultation but the Company’s decision will be final”.. .

43. The Respondent is of the belief that the Claimant has made no specific reference to any mobility clause and/or issue relating to the location policy in her contract of employment in her statement of evidence. Further, the unchallenged evidence in relation to the Respondent's position on the issue of the mobility clause can be found at paragraphs 66 & 67 of Mrs James' statement. In particular reference is made to correspondence dated 23^rd August 2012 from Mr Francis to Mr Hall (Unite the Union) [Pages 277 - 279 of the trial bundle] which stated:

….”the place of work for redundancy purposes is determined by where individuals actually worked in practice and not merely by the terms of their employment contract. This is because the presence of a mobility clause in a contract of employment should not be used to defeat genuine redundancy payment claim” … . [Page 277 Paragraph 4].

44. For the reasons as advanced above in these submissions, the Respondent states this was a situation where the Claimant's place of work was Belfast and where a genuine redundancy situation existed.

Indirect Discrimination

45. The Claimant alleges that she has suffered indirect discrimination on the grounds of race and age contrary to Article 3(1)(b) of the Race Relations (NI) Order 1997 and Article 3(1)(b) of the Employment Equality (Age) Regulations (NI) 2006.

46. In order to establish indirect discrimination in this instance it is necessary for the Claimant to identify:

a. A requirement or condition/provision, criterion or practice (PCP)

b. Disparate impact, where essentially persons of the same racial/age group are disadvantaged is considerably smaller than the proportions of persons not of that same racial/age group who are advantaged

c. Detriment to the affected Claimant

d. An absence of justification

47. It is for the Claimant to identify the requirement or condition/PCP she seeks to rely on [Allonby –v- Accrington and Rossendale College [2001] IRLT 634]. The Claimant states that the requirement or condition/PCP is “Did the Respondent offer to transfer the London Mainline crew to Eurofleet?” [Item 4 (a) & 5 (a) of the Legal and Factual Issues Page 50 of the trial bundle].

48. Firstly, the assertion that the Respondent offered to transfer the London Mainline Crew to Eurofleet is rejected. For reasons stated earlier, the London Mainline Crew's contract of employment transferred from bmi to the Respondent pursuant to the TUPE Regulations (as did the employment of the Claimants) and the London Mainline Crew were then integrated into Eurofleet whilst the Claimants were at risk of redundancy. In any event, the Respondent respectfully suggests that, on its ordinary meaning, the decision of the Respondent to offer the London Mainline Crew "a transfer to Eurofleet" does not impose any PCP on the Claimant. Further, this Tribunal is reminded that the Claimant only indicated that she …..“would consider (Respondent emphasis) Eurofleet, if available”… and only appeared to be interested in vacancies in Belfast. [Page 248 of the trial bundle]. In this instance, the Respondent suggests that the Claimant was not even certain that Eurofleet would be a viable option for her. This view is supported by the fact that the Claimant turned down options to be considered for employment in London and possibly elsewhere and was only interested in suitable vacant positions in Belfast.

49. In Hacking & Patterson –v- Wilson UKEATS/0054/09 an employee alleged indirect sex discrimination when her employer refused her request for part-time leave/flexible working after maternity leave. In her decision rejecting the employee's appeal, Lady Smith noted that this was not a case where the employer was imposing an obligation on the employee rather it was the employee asking for a variation in her contract of employment to afford her a new benefit.

50. In these present proceedings, the Claimant's case at its highest is that she would have considered a position in Eurofleet, if available. It is the Respondent's respectful position that, given the circumstances faced by them at this time, and having due regard to the Claimant's terms and conditions of her employment, her position was redundant and Eurofleet was not an option open to her. The Claimant at no stage, personally, made a formal request for transfer to Eurofleet and at no stage suggested that the decision of the Respondent not to offer her a position in Eurofleet was discriminatory. It is therefore the Respondent's respectful submission that the Claimant has failed to identify a PCP to advance any allegation of indirect discrimination on the grounds of race or age.

51. With regard to the claim of indirect race discrimination the Claimant suggests that it is persons who are Northern Irish and/or Irish who have suffered a particular disadvantage. The Respondent notes that in her witness statement the Claimant only makes reference to persons who are from Northern Ireland. At paragraph 16 of the Claimant's witness statement she states …"Nearly all of us based out of Belfast were from Northern Ireland and this decision patently impacted upon those of us from here more than those who were based out of Heathrow, who were predominantly English”…. The comparison sought by the Claimant, therefore, is between persons who are Northern Irish as compared to persons who are English.

52. Further, and/or in the alternative one must question the case presented by the Claimant that she is Northern Irish and/or Irish for the purposes of these proceedings. The Respondent respectfully suggests that Northern Irish and/or Irish does not represent a racial group within the meaning of Article 5 of the Race Relations (NI) Order 1997. The Claimant must allege, for the purposes of pursuing a claim under this Order, that she is Northern Irish or Irish, not both. As this Tribunal will recall, no acceptable evidence was presented by the Claimant regarding the racial background of both the Claimant and employees at the Belfast operation base. The Claimant did make reference to her “perception” of her fellow employees by speaking to them but did not provide names of colleagues at the Belfast base (other than a couple that she assumed were not from Northern Ireland) or provide specifics in relation to same. Likewise the Claimant adduced no evidence as to the composition of the workforce at other bases that were also closed down, which the Respondent submits below would have been the correct pool to examine. Further, the Claimant chose not to call additional witness evidence on this issue from former fellow employees.

53. Turning to the choice of pools for comparison the Claimant alleges that in relation to her claim of indirect race discrimination it is the thirty two Northern Irish employees based at Belfast as compared to the Heathrow Crew who were predominantly English [ See paragraph 16 of the Claimants witness statement and further confirmed by the Claimant under cross-examination]. The Respondent respectfully suggests that the correct pool should have been all persons affected by the alleged PCP [Rutherford –v- Secretary of state for Trade and Industry (No 2) [2006] UKHL 19] namely, all 115 of the outstation crew based at Belfast, Manchester, Edinburgh and Birmingham. The Respondent respectfully suggests that the Claimant has clearly not identified the correct pool of comparison and/or has failed to present the required evidence to allow a Tribunal to be satisfied that there was a disparity between the two chosen pools with respect to her claim of indirect race discrimination.

54. Having due regard to the claim of indirect age discrimination the only evidence presented or led by the Claimant in relation to same can be found at paragraphs 18 and 19 of her witness statement. It is unclear from this evidence what pools of comparison the Claimant is relying on in relation to this aspect of her claim. Further, the Respondent highlights the fact that the Claimant at no stage during the course of this hearing led direct evidence relating to any statistical information regarding her claim of indirect age discrimination and only sought to do so through the cross examination of the Respondent's witnesses.

55. Again, it is the Respondent's contention that the correct pools of comparison are all of the 115 outstation crew as compared to the London Mainline Cabin Crew. The Claimant has said that 44% of the London Mainline Crew were over 40 years of age. Applying the information contained at pages 293 – 306 of the trial bundle it is clear 49.6% of the outstation crew were in the same age group. This does not represent a significant or smaller group for the purpose of comparison of the correct pools . In such circumstances it is the Respondent's further respectful submission that the Claimant's claim of indirect age discrimination is without substance.

56. On the question of whether the Claimant has been placed at a particular disadvantage by the purported PCP, it is the Respondent's respectful submission that the Claimant at no stage indicated she would accept Eurofleet, even if available, and clearly on the evidence adduced at hearing she had no intention of leaving Belfast as a place of work. Further, the Claimant did not present any evidence as to how many of her colleagues in Belfast or at other outstations would have transferred to Eurofleet if this opportunity had been available. The Respondent therefore respectfully contends that the Claimant has not established that she and/or her colleagues have been placed at a particular disadvantage in all the circumstances.

57. Further, and/or in the alternative, the Respondent asserts that it was justified in relation to any treatment which could be construed as having a disparate impact on the Claimant and her fellow employees in Belfast.

58. In Homer –v- The Chief Constable of West Yorkshire Police and West Yorkshire Police Authority [2012] UKSC 15 Lady Hale stated at paragraph 19 that:

….”The approach to justification of what would otherwise be indirect discrimination is well settled. A provision, criterion or practice is justified if the employer can show that it is a proportionate means of achieving a legitimate aim. The range of aims which can justify indirect justification on any ground is wider than the aims which can, in the case of age discrimination, justify direct discrimination ………and can encompass a real need on the part of the employer’s business”… .

59. It is Respondent's respectful submission that prior to the relevant period in relation to these present proceedings (April to August 2012) they had taken a strategic decision to close outstations and base their operations, to include aircraft and crew, at London Heathrow and London Gatwick. Further, the Claimant's place of work at all times relevant to these proceedings was the Belfast operational base which, following consultation, the Respondent decided to close. The Respondent had permanently discontinued recruitment to Eurofleet and Worldwide Fleet as part of its agreement with Unite the Union in May 2011 as explained earlier. The reasons for allowing the London Mainline Crew to be integrated into Eurofleet was not because there were any vacancies - there were not. Instead, the London Mainline Crew were integrated into Eurofleet pursuant to the Respondent’s TUPE obligations because Eurofleet was considered to be the "best fit" considering the London Mainline Crew's terms and conditions and scheduling arrangements. Finally, it was not disputed that bmi was losing over £3m per week and the unchallenged evidence of the Respondent was that outstations were inefficient, unproductive and costly. In such circumstances and having due regard to the Respondents business needs they were justified in not only making the Claimant's position redundant but also in not allowing her to be integrated into Eurofleet.

60. The Respondent is conscious that the Claimant's counsel sought to suggest to Mr Francis under cross-examination that any reasons for justifying their stated decisions were based solely on cost; this is clearly not the case. In this regard, the focus is on the Respondent's decision to close the outstations, the reasons why there were no vacancies in the Respondent's Eurofleet for the Claimant and her fellow colleagues to be considered for and why the London Mainline Crew were integrated into Eurofleet. The Respondent's reasons for deciding to close the outstations were not solely cost related, rather they included factors such as the Respondent's strategy (i.e. the decision to base the Respondent's UK operations at London Heathrow and London Gatwick), simplification and productivity. Ms Slinger gave more detailed evidence about these factors which was unchallenged by Claimant's Counsel. For example, in relation to the Respondent's strategy, which is linked to simplification, she explained how operating regional outstations can make scheduling arrangements more complicated and cabin crew less efficient [paragraph 16(a) of Ms Slinger's statement]. In relation to productivity, she explained how unproductive the former bmi outstations were compared to the London crew [paragraphs 4-13 of Ms Slinger's statement]. By way of reminder, Ms Slinger explained that, whilst the Civil Aviation Authority permits members of cabin crew to undertake a maximum of 900 flying hours per year, members of cabin crew at the Belfast outstation operated an average of 405 flying hours between March 2011 and March 2012. In relation to the second issue, namely why there were no vacancies in the Respondent's Eurofleet for the Claimant and her fellow colleagues to be considered for, the Respondent turns to its reasons for permanently discontinuing recruitment into Eurofleet and Worldwide Fleet. The Tribunal will recall that, in order to achieve the mandated £141 million costs saving, Mr Francis considered imposing a significant and permanent pay reduction on all members of cabin crew. Clearly, this would have created industrial challenges for the Respondent, as Mr Francis explains at paragraph 10 of his statement. As a result, the Respondent opted for an alternative option, one which Unite the Union were agreeable to. Finally, the Respondent gave clear and consistent evidence about why the London Mainline Crew were integrated into the Respondent's Eurofleet which has been explained in detail in these submissions. The key factor was not cost-related but was, instead, as a result of the Respondent's legal obligations pursuant to the TUPE Regulations and the fact that there was not a proposed redundancy of these London based crew.

61. The Respondent respectfully suggests that costs were only one element relating to the decisions as taken by same [See Cross –v- British Airways plc [2005] IRLR 243 which established the “costs plus” approach in relation to justification which has received judicial acceptance thereafter and more recently in cases such as O’Brien –v- Ministry of Justice [2013] UKSC 6.

Quantum

62. It is the Respondent's position that the Claimant is not entitled to any award however the following observations are made in relation to the Claimant's schedule of loss, as presented, and her purported efforts to mitigate any loss and damages.

a. The Claimant received an enhanced redundancy payment from the Respondent amounting to £10,006.92 [Page 258 of the trial bundle].

b. The basic award is removed from the schedule of loss on foot of the redundancy payment. It is common case that a figure of £4504.00 remains which must be deducted from any award made by this Tribunal.

c. The Respondent suggests that the amount claimed (£450.00) for loss of statutory rights is excessive. A figure of £300 would seem more appropriate.

d. The Respondent does not take issue with any of the figures, to include the allowance figure of £30.46, found at Section B (ii), (iii) & (iv) of the Claimants schedule of loss.

e. The figure of £6000.00 claimed for injury for feelings is excessive. The Claimant did not present any evidence in her witness statement or at hearing to support any contention that she suffered any injury to feelings. In such circumstances, the Respondent respectfully suggests any award should be minimal.

f. The Tribunal has the power to make a compensatory award to the Claimant which it ….”considers just and equitable in all the circumstances”… [Article 157(1) of the Employment Rights (NI) Order 1996]. In doing so the Tribunal must also look at all efforts made by the said Claimant to mitigate any loss or damage [Article 157(4) of the 1996 Order]. The Respondent respectfully suggests that the Claimant has failed to present sufficient evidence to satisfy this Tribunal that she has made sufficient efforts to source alternative employment and, therefore, mitigate her losses.

g. The Claimant did not apply for roles in the Respondent's Mixed Fleet, London Gatwick fleet, nor did she apply for any of the vacant roles in the Respondent's business or the business of its subsidiary, BA Cityflyer Ltd. On a point of dispute the option to apply for BA Cityflyer positions was offered to all outstation crew not just those based in Edinburgh [See paragraph 5 of Page 278 of the trial bundle].

h. The Claimant did not apply for any of the many general positions within the Respondent's organisation which are advertised on its intranet site, the details of which were e-mailed to the Claimant. It was clear at the meeting with Mr Brierley on 3^rd July 2012 that the Claimant was only interested in positions in Belfast. Further, the Claimant indicated at this meeting that she would “consider” Eurofleet, if available, and that if made redundant ….“would be happy to go if she got PILON”… [Page 248 of the trial bundle]. Further, the Claimant accepted under cross-examination that she made no request to the Respondent to be considered for retraining. In essence, the Claimant was content to accept her redundancy payment, was not interested in any of the options open to her to remain an employee of the Respondent and was only interested in employment in Belfast.

i. The Claimant did not contact any of the airlines operating out of Belfast (Aer Lingus, EasyJet, Flybe and Jet2), to ascertain if they had any job opportunities. This is very surprising given the Claimants experience as a cabin crew member with bmi and it is evident from pages 337, 338 and 364 of the trial bundle that these airlines were recruiting.

j. The Claimant did not register with any employment agencies.

k. The Claimant was requested to provide to the Respondent all documentation relating to each and every effort made by her to source alternative employment from the date of her dismissal [See Notice for Discovery, Item 3 at page 38 of the trial bundle]. In relation to the fourteen month period from date of dismissal to date of hearing of this action it is accepted that the Claimant did obtain two temporary positions. The Claimant however has only produced six undated letters relating to efforts to source suitable employment for the remaining period. The authenticity of these documents must be in doubt given the failure of the Claimant to present copies of any advertisements, application forms and/or correspondence from any of the stated employers in relation to the purported employment opportunities.

63. In such circumstances it is the Respondents respectful submission that the Claimant has not made any significant effort to mitigate her loss and damage.

Barry Mulqueen (Barrister-at-Law)

Bar Library, Royal Court of Justice, Belfast BT1 3JP

28^th November 2013

SCHEDULE 2

CASE LAW

Williams v Compair Maxam Ltd [1982] IRLR 83

Taymech v Ryan EAT/663/94

Hendy Banks City Print Ltd v Fairbrother EAT 691/04/TM

Capita v Byward 2012 IRLR 814

Wrexham Golf Co Ltd v Ingram EAT 190/12

Kvaerner Oil and Gas Ltd v Parker & Others EAT 444/02

Lomond Motors v Clark 19/09 EAT

Thomas & Betts Manufacturing Ltd v Harding [1980] IRLRF 255

Mugford v Midland Bank Plc [1997] IRLR 208

Vokes v Bear [1973] 363

High Table Ltd v Horst & Others [1998] ICR 409

Bass Leisure Ltd v Thomas [1994] IRLR 104

See British Airways v Starmer [2005] IRLR 862

Perera v Civil Service [1983] IRLR 166

Paul v Chief Constable [2004] NIIT

London Underground Ltd v Edwards (no.2)[1998] IRLR 364, Potter LJ stated

Loxley v BAE Systems Land Systems (Munitions & Ordnance) IRLR 2008 IRLR 853

Bilka Kaufhaus [1986] IRLR 586

Harvey on Industrial Relations and Employment Law Part L at para 347

Homer v Chief Constable [2012] IRLR 601 and para 22

R (on the application of Elias) v Secretary of State for Defence (Defendant) and Commission for Racial Equality (Intervenor) [2005] IRLR 788

South Ayshire Council v Morton [2002] IRLR 256

Robert David Johnston v BT PLC 3935/01

Highland Fish Farmers v Thorburn EAT 1094/94

Wright v Bluesky International Ltd 1901774/09

Blundell Permoglaze Ltd O’Hagen EAT 540/84

Baker v National Air Traffic Services Ltd [ET 2203501/07]

Harvey on Industrial Relations and Employment Law, Volume 1, Section E, Paragraphs 816 and 817

Pitman v Foreign and Commonwealth Office [2003] ICR 699 (Summary only)

Halpin v Sandpiper Brooks UKEAT/0171/11

Capita Hartshead Ltd v Byard UKEAT/0445/11

IDS Employment Law Handbook on Redundancy [Chapter 8.101]

Clews & Others v Liverpool City Council EAT 463/93

Allonby v Accrington and Rossendale College [2001] IRLR 634

Hacking & Patterson and others v Wilson UKEATS/0054/09

Rutherford v Secretary of State for Trade and Industry (No 2) [2006] UKHL 19

Homer v The Chief Constable of West Yorkshire Police and West Yorkshire Police Authority [2012] UKSC 15

Cross and others v British Airways plc [2005] IRLR 243

O’Brien v Ministry of Justice [2013] UKSC 6

[1] It is relevant to note that BA has three cabin crew groupings: worldwide, eurofleet and mixed fleet.

[2] Article 174.

(1) For the purposes of this Order an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to—

(a)the fact that his employer has ceased or intends to cease—

(i)to carry on the business for the purposes of which the employee was employed by him, or

(ii)to carry on that business in the place where the employee was so employed, or

(b)the fact that the requirements of that business—

(i)for employees to carry out work of a particular kind, or

(ii)for employees to carry out work of a particular kind in the place where the employee was employed by the employer, have ceased or diminished or are expected to cease or diminish.

(2) For the purposes of paragraph (1) the business of the employer together with the business or businesses of his associated employers shall be treated as one (unless either of the conditions specified in sub-paragraphs (a) and (b) of that paragraph would be satisfied without so treating them).

(3) Where—

(a)the contract under which a person is employed is treated by Article 171(5) as terminated by his employer by reason of an act or event, and

(b)the employee's contract is not renewed and he is not re-engaged under a new contract of employment,

he shall be taken for the purposes of this Order to be dismissed by reason of redundancy if the circumstances in which his contract is not renewed, and he is not re-engaged, are wholly or mainly attributable to either of the facts stated in sub-paragraphs (a) and (b) of paragraph (1).

(4) In its application to a case within paragraph (3), sub-paragraph (a)(i) of paragraph (1) has effect as if the reference in that paragraph to the employer included a reference to any person to whom, in consequence of the act or event, power to dispose of the business has passed.

(5) In paragraph (1) “cease” and “diminish” mean cease and diminish either permanently or temporarily and for whatever reason.

[3] High Table Ltd v Horst and others [1998] ICR 409. The applicants were silver service waitresses. They worked for one client in London. A clause (mobility clause) in the contract indicated that they could be transferred to work in locations a reasonable travelling distance from their existing place of work. The issue for the Court of Appeal was in determining the ‘place where the employee was so employed’, whether they should apply a contractual or primary fact test. The Court of Appeal held that the place where an employee was employed for the purposes of the employer's business was to be determined by a consideration of the factual circumstances which obtained until the dismissal. The existence of a contractual mobility clause does not determine the issue by extending the place of work to any place she could be required to work. If an employee has worked in only one location under his contract of employment for the purposes of the employer's business, it defies common sense to widen the extent of the place where he was so employed, merely because of the existence of a mobility clause. If the work of the employee for his employer has involved a change of location, as would be the case where the nature of the work required the employee to go from place to place, then the contract of employment may be helpful in determining the extent of the place where the employee was employed. But, it cannot be right to let the contract be the sole determinant, regardless of where the employee actually worked.

Bass Leisure Ltd v Thomas [1994] IRLR 104. The Claimant worked as a collector and worked out of the Coventry depot driving around various pubs to collect takings from fruit machines. She returned to the depot at the end of her job. The Company closed its Coventry branch and offered relocation 20 miles west of Coventry. She tried the move but it did not work and she sought a redundancy payment. The Company relied upon contractual provisions permitting transfer of employees and adjustment of geographic areas. The EAT held that the Claimant had been made redundant in the place where she was employed. “The place” where an employee was employed for the purposes of the legislation does not extend to any place where he or she could contractually be required to work. Accordingly, the question is primarily a factual one and the only relevant contractual terms are those which go to evidence or define the place of employment and its extent, rather than to make provision for the employee to be transferred from one “place” to another.

[4] Also see generally Harvey on Industrial Tribunals and Employment Law at pages 148-159 of the authorities bundle.

[5] The employee Mrs Ryan was a telephonist/receptionist but she also did other duties including typing duties. The post of telephonist receptionist was earmarked for redundancy. She sought to raise with the employer the question of redeployment. The matter was not given in-depth consideration. She was made redundant. Mrs Ryan told the tribunal she would have considered a lower paid job. The Tribunal found that the reasonable employer would have engaged in meaningful consultation and Mrs Ryan would have been considered in the context of the group of 4 or 5 administrative workers in the office and not in isolation. The Tribunal found the pool was not correct. The Tribunal found the dismissal was unfair. The Employment Appeal Tribunal upheld the Tribunal’s decision – it indicated that there was no meaningful consultation as to who was in the pool and no process of selection from a pool where there could have been a meaningful comparison between her skill and those of administrative workers in the office. The employer failed to genuinely apply its mind to relevant issues including the creation of the pool.(See page 56 in the authorities bundle.)

[6] In this case the company had four departments – administration, pre-press, printing and finishing. Mr Fairbrother et al worked in primarily in the finishing room but also did binding work. The redundancy pool was confined to those engaged in binding work. The Tribunal found that the dismissals were unfair and that the pool had been unfairly restricted to the perfect bindings, and that the finishing department should have been part of the pool as the binders also did finishing work. Upholding the Tribunal’s decision the EAT stated at paragraph 12 that the Tribunal correctly addressed the salient issue, i.e. whether the respondent had acted reasonably in selecting those employees who worked on the binding machine as the pool for redundancy.

[7] The Claimant was one of a number of actuaries but was made redundant in a pool of one. The Tribunal found that by confining the pool to herself the Respondent had unfairly selected the Claimant for redundancy. The EAT (Silber J) carefully reviewed the authorities and set out the applicable principles in redundancy pool selection cases including a core principle that the employer must genuinely apply its mind to the issue.(paragraph 31) The EAT accepted that the employer had failed to properly apply its mind to the composition of the pool.

[8] Butterworths Employment Law Guide, Fourth Edition and paragraph 19.356

[9] Known as the ‘bumping’ case, Mrs Harding had worked as a packer but later primarily worked on fittings. She need for fittings decreased and she was dismissed for redundancy. The Tribunal found that the dismissal was unfair because she should have been considered for packing work even if that would have meant dismissing a more recently recruited packer. The EAT and the Court of Appeal upheld the Tribunal’s decision.

[10] It is questionable whether a selection process would have been needed given the number of London Heathrow crew who did not avail of the opportunity to transfer to Eurofleet.

[11] In Greater Manchester Police v Lea [1990] IRLR 372 the Applicant was not appointed because he was in receipt of an occupational pension. In attempting to establish his claim of indirect sex discrimination, he argued that proportionally fewer men could comply with a condition that excluded persons with an occupational pension. His assertions were based on statistical evidence in relation to a pool comprising persons throughout the United Kingdom. The Employment Appeal Tribunal accepted the validity of the Tribunal's use of this pool. This case has a number of interesting features. The employer was a local English employer. The pool encompassed persons in more than one jurisdiction. It was argued on behalf of the Appellant that the pool was too wide, however the extra-jurisdictional nature of part of the pool was not identified as a flaw.

In Perera v Civil Service Commission [1983] ICR 428, a Sri Lankan qualified advocate complained of indirect race discrimination in that he was rejected for a post in the English civil service. Stephenson LJ commented that the appropriate pool for the purpose of testing the allegations would be all Sri Lankan and English lawyers who were similarly qualified.

In R (on the application of Elias) v Secretary of State for Defence (Defendant) and Commission for Racial Equality (Intervenor) [2005] IRLR 788, a compensation scheme (the Far Eastern Prisoner of War Ex-Gratia Compensation Scheme) for civilian persons interned during World War II, was restricted to British civilians defined as persons born or having a parent or grandparent born in the UK. The purpose was to limit the scheme to persons who had a strong UK link at the time of the internment. It was conceded prior to the commencement of the hearing that the criteria was indirectly discriminatory, disproportionately impacting those persons who were of non-British national origin. It appears that the relevant pool included potentially eligible civilians, irrespective of whether they were residing in Great Britain.

Johnston v BT [2011] NIIT

[12] See Amy James witness statement at paragraph 44(c) and Karen Slinger at paragraphs 20-23.

[13] See Karen Slinger at paragraph 22.