Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 2100/12

 

 

 

CLAIMANT: Catherine Horgan

 

 

RESPONDENTS: 1. British Airways PLC

2. British Midland Airways Ltd (subsidiary of

Lufthansa)

 

 

 

DECISION

The unanimous decision of the tribunal is that the claimant's claims are dismissed.

 

 

Constitution of Tribunal:

Employment Judge: Employment Judge Murray

Members: Mr J Barbour

Ms G Ferguson

 

Appearances:

The claimant represented herself.

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

 

 

THE CLAIM

 

1.             The claimant's claims were as follows:

 

(1)           That she was unfairly dismissed on ordinary principles in that: there was no redundancy situation and she was unfairly selected for redundancy; there was inadequate consultation; the pool for redundancy was unfair; and no alternative employment was offered.

 

(2)           That her dismissal was automatically unfair as it was in connection with a TUPE transfer.

 

(3)           That there was a failure to consult in relation to the transfer.

 

(4)           That she suffered indirect age discrimination. The claimant relied on her being over 40 and over 50 in comparison to those younger than her.

 

(5)           That she suffered indirect sex discrimination when compared to the treatment of British Midland (BMI) cabin crew staff based in London Heathrow and compared to the treatment of BMI pilots, engineers and ground staff based in Belfast.

 

(6)           That she suffered direct and indirect race discrimination when compared to her BMI colleagues in Great Britain. The claimant relied on being Irish/Northern Irish and/or not being Scottish, Welsh or English.

 

(7)           That she suffered unlawful variation of her contract in connection with a TUPE transfer; breach of contract; unlawful deduction from wages in relation to: staff travel; removal of bar commission; removal of travel and flight allowances; loss of earnings because she was not allowed to work until 31 October 2012; the calculation of redundancy; notice pay.

 

2.             In relation to the indirect discrimination claims the claimant relied on a selection of matters which she alleged amounted to provisions, criteria or practices (PCPs) and which placed her, and those in her group, at a particular disadvantage because of race and/or sex and/or age.

 

3.             The respondents claimed: that the claimant's dismissal was fair as it was for redundancy; that it was unconnected to the TUPE transfer; and if it was connected to a TUPE transfer that it was for an economic technical or organisational (ETO) reason involving changes in the workforce and was therefore fair. The respondent denied breach of contract or unlawful deduction from wages and denied discrimination on all grounds whether direct or indirect.

 

SOURCES OF EVIDENCE

 

4.             The tribunal heard evidence from the following witnesses for the respondents:

 

(1)           Bill Francis, a Senior Manager in British Airways (BA) who was part of the team which decided to close the former BMI outstations and dealt with the collective consultation process and the trade unions at all relevant times.

 

(2)           Amy James, who was a Senior Manager in BA at the time relevant to these proceedings, had previously worked for BMI and therefore gave evidence in relation to the contractual position, the redundancy process and the consultation process.

 

(3)           James Brierley, who worked as a Manager for BMI before transferring to British Airways and who conducted the individual consultation with the claimant.




 

(4)           Karen Slinger, a Senior Manager in BA who gave evidence in relation to the absorption of BMI and the reasons for closing the outstations.

 

5.             For the claimant we heard evidence from the following:

 

(1)           The claimant.

 

(2) Francesco Genovese who worked for BMI until he was made redundant along with the claimant.

 

(3)           Paul Smyth who worked with the claimant until he was made redundant.

 

THE LAW

 

6.           Mr Mulqueen referred the tribunal to part of his written submissions which were provided for the Neill v BA case and are attached to the decision in that case.

 

7.             The claimant referred us to the following legal authorities:

 

(1)           Ferreira Da Silva e Brito v Estado portuges; C- 160/14 ECJ;

 

(2)           Relaxion Group PLC v Rhys-Harper 2003 UKHL 33;

 

(3)           F & G Cleaners Ltd v Saddington UKEAT/0140/11;

 

(4)           UK Coal Mining Ltd v NUM (EAT) 2008 ICR 163;

 

(5)           Garland v British Rail 1982 ICR 420 (ECJ);

 

(6)           Annalisa Roffey v UK 17 December 2012. This case relating to BA is pending before the ECtHR and is therefore of no assistance to us.

 

8.             The tribunal took account of all of the written and oral submissions together with any of the authorities to which it was referred insofar as they were relevant to the issues in this case.

 

9.             The Employment Rights (NI) Order 1996 (as amended) provides that redundancy is a potentially fair reason for dismissal (A130) and provides as follows in relation to redundancy:

 

"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 employee, 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."

 

10. Mr Justice Silber reviewed the authorities (in relation to the pool for redundancy) in Capita Heartshead Ltd  v Byard [2012] IRLR 814 EAT. He 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 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 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 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);

 

(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." (Paragraph 31).

 

11. Under the TUPE Regulations 2006 if an employee is dismissed and it is in connection with the transfer it is automatically unfair unless the dismissal was for a reason which amounted to an ETO reason entailing changes in the workforce. (Reg7(2)(b)). Similarly, under TUPE, an employee who is transferred under TUPE to a new employer cannot have her terms and conditions of contract varied unilaterally due to the transfer unless it is for an ETO reason.

 

12. In relation to the mobility clause in the claimant's contract of employment, the case of Lomond Motors Ltd  v Clark (UKEATS/0019/09/BI) is relevant:

 

"Turning to the relevance of a mobility clause in a 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." (Paragraph 25).

 

13.          The claimant can claim for unlawful deduction from wages and or breach of contract if there are any sums outstanding on termination of employment which were properly payable under the contract.

 

14. In relation to the direct discrimination claim it is for the claimant to prove facts from which we could conclude that an act of less favourable treatment on prohibited grounds occurred. If the claimant does so, the burden of proof shifts to the employer to show that any impugned acts were in no sense whatsoever discriminatory.

 

15. In relation to the indirect discrimination claims it is for the claimant to establish a provision, criterion or practice (PCP) which placed her at a particular disadvantage because of sex, race or age. If the claimant establishes the PCP and particular disadvantage, the employer can raise the defence of justification by showing that the impugned PCP was a proportionate means of achieving a legitimate aim.

 

FINDINGS OF FACTS AND CONCLUSIONS

 

16. The tribunal reviewed all the evidence both oral and documentary to find the following facts proved on a balance of probabilities. The tribunal then applied the legal principles to the facts found in order to reach the following conclusions. It is important to note that the following records the primary findings of fact drawn from the evidence; it does not seek to record all the competing evidence and allegations.

 

17. BMI was a failing business losing £3m a week at the time of its takeover by BA. We accept the respondents' evidence that they had to move swiftly to preserve the airport slots related to routes and their associated licences. This had a bearing on the position of the former BMI staff based at London Heathrow.

 

18. Immediately prior to the BA takeover the BMI outstations comprised 115 cabin crew staff spread out amongst the four BMI outstations as follows: Manchester 38; Edinburgh 34; Belfast 32 and Birmingham 11.

 

19. Staff based at BMI outstations included cabin crew, pilots, check-in and ticket desk personnel, administrative staff, a local manager, engineers, baggage service and premium lounge staff. There was also a part-time cabin services performance manager at Belfast. The staff at Belfast reduced to one manager and 4 engineers following the takeover by BA.

 

20. The London Heathrow BMI staff were also known as the London Mainline crew. All outstation crew were also mainline crew. There was no reduction in the need for employees based at London Heathrow to do work following the transfer. The same crew were needed immediately as otherwise the slots could have been lost. As they transferred under TUPE their terms and conditions had to be preserved and this is what led to them ultimately being placed in Eurofleet in compliance with TUPE obligations.

 

21. Differences between the Belfast outstation and London Heathrow mainline crew related principally to the following:

 

(1)           In Belfast the local manager was responsible for the first level of disciplinary grievance and performance management;

 

(2)           The employer was obliged to pay costs to night-stop Belfast staff in London if they could not get them back to Belfast at the end of a trip or series of trips;

 

(3)           Belfast crew operated on a different roster to Heathrow staff;

 

(4)           There were cost and productivity issues associated with outstations in that there was an obligation to fly staff back (as passengers if necessary) to their base in Belfast which meant that they were not actually working but being paid.




 

TUPE transfer and consultation

 

22. It is settled law that TUPE does not apply to transfers of shares alone whereby the share capital of a corporate entity is transferred. In a share-based transaction, in contrast to a business sale, the ownership of all or part of the share capital of the employer changes but the contracts of employment of the relevant employees are unaffected. As the change of ownership is simply share-related, there is no change of employer. There is however potential for a TUPE transfer to take place in conjunction with, or in connection with, a share-based transaction. The task for the tribunal is to look at all the circumstances to decide as a matter of fact when the transfer of the business entity took place.

 

23. In this case the claimant stated that the date of the TUPE transfer was 20 April 2012 which was when the shares in BMI were acquired by BA. In the alternative the claimant alleged that it took place on 27 June 2012 which was the date the claimant agreed that the Belfast route transferred to BA.

 

24. The respondents' case was that whilst the acquisition of shares took place on 20 April 2012, BA then considered whether to continue to operate BMI as a separate business within its group, or to merge the BMI business into BA. BA decided to absorb the BMI business and this involved a process which took place over several months due to operational, logistical and licensing issues.

 

25. Ms Slinger drew a distinction between the "commercial transfer" and the "operational transfer". She described them as follows:

 

(1) The commercial transfer took place on 27 June 2012, whereby all BMI flights were assigned BA and BMI flight numbers to allow BA to sell those routes using their machinery in order to maximise seat sales. She agreed that non- BMI crew were also involved in operating the Belfast route from 28 June 2012.

 

(2) The AOC/Operational Transfer took place gradually as aircraft transferred. The AOC is the Air Operating Licence which denotes approval from the National Aviation Authority to an airport operator to allow it to use aircraft for commercial purposes. The licence lists the aircraft types and registrations and lists for what purpose and in what area the aircraft can be used. Aircraft were migrated one at a time which involved removing them from service and transferring them to BA Engineering which then converted them to BA aircraft. This involved changing the aircraft's livery, interior, service history and certification. The aircraft could then be registered to the BA licence. As each aircraft migrated across to BA licence, 25 staff at a time were transferred to BA. Belfast crew only transferred to BA licence at the time the last night-stopping aircraft was removed from BMI service to convert to BA licence.

 

26. The Belfast/ Heathrow flights operated by BMI crew and aircraft continued until 18 August 2012. After that date BA crew and aircraft operated that route. This was the reason the respondents chose 20 August 2012 (as this was the Monday after the last flight on 18 August 2012) as the date on which the claimant and her colleagues transferred their contracts to BA. The respondent stated that the Belfast outstation closed on 21 August 2012.

 

27.          The claimant transferred on 20 August 2012 and was to be made redundant immediately with her colleagues due to the closure of the outstations. Following negotiations with the Trade Unions the date of termination for the Belfast and Edinburgh outstation cabin crew was pushed back to 31 August 2012 to enable the claimant and her colleagues to have a few more weeks' pay even though she and her colleagues did not actually work in that period.

 

28. In summary therefore the dispute between the parties centred on three dates, namely the claimant's dates of 20 April 2012 or 27 June 2012, and the respondents' date of 20 August 2012.

 

29. The relevance of the date to the claimant's case is as follows as she alleged:

 

(1) That the consultation was inadequate under TUPE;

 

(2) That the obligation to consult with individuals at risk of redundancy was not complied with in her case;

 

(3) That the collective consultation was inadequate because there was not enough consultation with the outstation staff and that this showed that the outstations were always going to close;

 

(4) That these points were relevant to the redundancy being unfair and amounted to evidence supporting her claim that the closures were for discriminatory reasons, that is because of gender, race and/or age. In this regard we note that the only claim for direct discrimination was on grounds of race.

 

30. The key issue for us therefore in relation to the date of transfer, relates to whether the consultation process was inadequate and thus rendered the claimant's dismissal for redundancy unfair or tainted by discrimination.

 

31. We accept that time was of the essence in relation to the transfer of assets in the form of planes and flight slots as it was necessary to keep slots running in order to preserve licences, to preserve business and to the ensure the continued viability of the business being transferred.

32. The claimant drew our attention to the following to support her case on the date of transfer:

 

(1) That some correspondence from managers was from BMI and BA and some were joint letters. We find that this reflects the fact that a TUPE transfer was in train and, for this reason, managers from both BMI and BA were involved in the relevant consultation;

(2) BMI cabin crew were given access to BA staff travel before the licence transferred (from 23 May 2012) so that they could book flights on the BA system. We do not find this to support the claimant's case on the date of the transfer of the business because it relates to a purely logistical matter;

(3) Both sides agreed that BA was the employer when the claimant was dismissed. The claimant received her P45 from BMI even though her termination letter said that she was being made redundant by BA. We find nothing untoward in this as we accept the respondents' evidence that, due to the fact that the transfer had just taken place, the practicalities of the payroll systems meant that the P45s had to be issued under the BMI system given the short period between the transfer and the termination for redundancies. This was made clear to staff at the time in writing.

 

33.          The proposal that outstation staff be in a pool for redundancy was formulated around March 2012.

 

34. The claimant was a member of Unite at all relevant times and became one of the Unite representatives in Belfast in October 2011.

 

35. The 90-day consultation by BMI and BA with Unite began on 13 April 2012 which was soon after the decision was taken that BA was to be the successful transferee. There were four extensive consultation meetings between BMI, with BA and Unite before the date of acquisition of the shares on 20 April 2012. The consultation meetings then proceeded on a regular basis between April and August 2012. The first meeting was on 13 April 2012; 19 meetings took place between that date and 27 June; 23 meetings took place between 13 April and 20 August. It is clear from the documentation that the meetings were comprehensive and we find that the consultation in relation to the transfer and proposed redundancies was at all times meaningful and genuine.




36.          The claimant agreed that she did not have an individual remedy for any alleged failure to go through the proper collective consultation process. Nevertheless the claimant alluded throughout her evidence to her concerns and grievances about that process. Essentially the claimant's concern was that she believed that Unite favoured union members in the Unite Branch in BA (BASSA) and BMI staff based in Heathrow by protecting their jobs at the expense of the jobs of those former BMI staff in the outstations which included Belfast. In this regard the claimant repeatedly referred to the fact that neither she nor local Belfast Unite representatives were at all the meetings with BA and BMI management.

 

37.          We find no fault on the part of BMI or BA in relation to the collective consultation process. It was clear from the documentation to which we were referred that there were over 22 meetings between senior Unite Officers and Senior Management from the two respondents in relation to the TUPE process and the proposed redundancies. As set out above, the meetings spanned the period April to August 2012. There was also exploration of how the effect of the closure of the outstations and ensuing redundancies could be mitigated by allowing affected staff to apply for vacancies in other parts of BA's business.

 

38. We find that it is not crucial in this case for us to decide definitively the date following April 2012 when the business transferred as it is not of a central relevance on the evidence presented in this case given the facts we have found above. We are clear that the transfer date was not on 20 April 2012 but rather it took place over a period as BA took over operations from BMI so we accept that the claimant transferred on 20 August 2012. Even if we are wrong and the transfer took place on 27 June 2012 (when the Belfast route transferred to BA) the consultation at that point was reasonable both collectively and individually in circumstances where speed was of the essence in order to retain the business.

 

39. In summary, therefore, we find that the consultation pre and post-transfer (whether that was on 20 August or 27 June 2012) with Unite was reasonable and there were no defects in that regard which rendered the subsequent redundancies unfair. The claimant's individual consultation was within the band of reasonable responses for a reasonable employer in the circumstances. As we have found no fault in the consultation process, we reject the claimant's case that defects in that process support her claim of discrimination.

 

BMI staff at Heathrow

 

40.          The BMI staff based at London Heathrow were in a different position to those in the outstations as they were based at Heathrow and when that function transferred across the staff transferred with them in accordance with TUPE. An examination of their terms and conditions then took place to see where the best 'fit' was for them in the BA model.

 

41. The BA model, which had helped BA emerge from the financial difficulties that beset the airline industry as a whole, involved centralising operations in London. Cabin crew based at Heathrow were assigned to one of 3 fleets namely Mixed Fleet, Worldwide Fleet and Eurofleet.

 

42. There had been industrial action by BA staff several years before which had led to an agreement with Unite that staff in Worldwide Fleet and Eurofleet would, essentially, be ring-fenced preserving their advantageous terms and conditions whereas all new recruitment would be into Mixed Fleet with less advantageous terms and conditions. There was also an agreement with Unite that there would be no new recruitment into Worldwide Fleet and Eurofleet and that all new recruitment would be into Mixed Fleet.

 

43.          In the TUPE transfer consultation in this case there were intensive negotiations with Unite as a result of which it was agreed that the former BMI crew based at Heathrow would transfer to BA's Eurofleet as there was an 80% match between their terms and conditions and those of staff in Eurofleet. For this reason they were placed in Eurofleet. This meant that they were included with the group of staff who had been ring-fenced following the previous agreement with Unite several years before.

 

44. We accept the respondents' evidence that they had good reason, untainted by gender race or age, to place this group of staff based in Heathrow in Eurofleet. Our principal reasons for so finding are as follows:

 

(1)           As they were not based in an outstation they were validly not in the pool for redundancy;

 

(2)           They transferred under TUPE with the function at Heathrow and this meant that they had to be accommodated in BA's business when their part of the business transferred with their terms and conditions intact;

 

(3)           Their terms and conditions meant that they fitted best in Eurofleet;

 

(4)           BA was very wary indeed of unravelling a hard-won agreement with Unite following the previous industrial action and for this reason it was not desirable in industrial relations terms nor was it a requirement of TUPE for other staff from the outstations to be transferred to Eurofleet.

 

Place of Work

 

45. A key point in this case was whether the claimant's place of work was in Belfast.

 

46. It was the claimant's case that her place of employment was not Belfast but rather was in aircraft in the air and/or wherever in the world she was sent in the course of her work. This was at odds with the issues document where the claimant made the case that her base was in London Heathrow. It was the respondents' case that the claimant's place of work and base was Belfast and for this reason she and the other staff at the outstations around the United Kingdom (namely in Manchester, Birmingham, Edinburgh and Belfast) were validly in the pool for redundancy.

 

47. We find that the claimant's place of work was Belfast for the following principal reasons:

 

(1) It is clear from the contracts to which we were referred that the claimant was to be based in Belfast as that is explicitly stated in the examples of contracts to which we were referred by both parties;

 

(2) One term of the contract was that the claimant had to live within 15 minutes or 45 miles of her base;

 

(3) There was an obligation on the respondent to fly the claimant back to her Belfast base at the end of her duties. In practice this could mean flying her back to Belfast either at the end of a day's shift or at the end of group of shifts comprising flights to various places over several days. The bulk of the claimant's work was, however, on the Belfast to Heathrow shuttle;

 

(4) When the claimant had to stay away on longer flights she had to "night stop" in places other than Belfast and was paid to do so;

 

(5)           It was clear from the evidence that at different points in the claimant's career with BMI, she was based at Belfast and then London. Each time she wanted to change her base she had to make a formal application which was then considered in the light of various circumstances pertaining at the time. It was therefore not a foregone conclusion that she would be allowed to transfer as and when she wished;

 

(6) When the claimant transferred to London she was paid a London weighting allowance to reflect the fact she was based there. This was removed when she transferred back to Belfast.

 

48. In summary, it was clear from the evidence and the documents to which we were referred that the concept of being based in a physical geographical location was key to the contract. It was also clear from the evidence that the claimant's last base was Belfast. The fact that the claimant's duties meant that she had to stay away from her Belfast base on a regular basis did not detract from the weight of the evidence which was that her place of work and base of work was Belfast.

 

49.          In reaching this conclusion we have taken account of the rosters to which we were referred by the claimant and her witnesses. The evidence in the rosters provided a "snapshot" of the claimant's and her witnesses' duties at certain points in time but did not, in our judgment, outweigh the evidence of the contract and surrounding circumstances which meant that the claimant's base was Belfast.

 

Redundancy pool




50.          Following the takeover of BMI, BA and BMI set about negotiating with Unite as to how the BMI business would be integrated into BA's model.

 

51.          It was clear from the evidence, and common knowledge, that the airline industry in general had encountered financial difficulties in the years preceding the events in this case. In particular BA had revised its model of business to close all of its outstations in the United Kingdom and to centralise its operations in London. This was done in order to streamline their business, improve flexibility, save costs and maximise efficiencies.

 

52.          BA took the business decision to close the outstations in order to comply with the business model which it had implemented successfully some years before. This model had worked for BA by improving its flexibility, profitability and stability.

 

53. There were no comparable roles for outstation staff because no outstations were being kept open and BA had no outstations of its own. The opportunity to apply for vacancies in Mixed Fleet was a voluntary option offered to staff by BA.

 

54. The reasons for closing the outstations related to the following:

 

(1)           Productivity because of the disparity in flying hours shown by the statistics. The analysis of productivity in Belfast, which showed that it was low, took account of part-time hours contrary to the claimant's allegation that this was ignored. The claimant did not dispute the disparity in flying hours between Belfast and London but essentially put forward the argument that this was management's fault. In addition, it is clear from the documents that the trade union accepted the productivity argument put forward in this regard by the employer.

 

(2)           Simplification of systems with a consequent cost reduction.

 

(3)           Centralisation in London in accordance with the successful BA model to simplify scheduling of flights and rostering of staff.

 

(4)           Reduction of infrastructure costs and overheads.

 

(5)           In order to save time and cost in relation to training.

 

55. We therefore accept that it was within the band of reasonable responses for this employer to identify the staff at all four outstations as a pool whose members were at risk of redundancy because the outstations were to close. It was clear from the evidence that the employers in the form of their managers genuinely applied their minds to the issue of the pool for redundancy.

 

56. We find no taint of discrimination in the decision to close the outstations the consequence of which was that the crew based there were liable to be made redundant.

 

57. The respondent accepted that no individual right of appeal was given to those made redundant. We find that the respondents' reasons set out below to be reasonable especially as collective negotiation preceded the redundancies.

 

(1)           There had been an extensive collective consultation process with the relevant trade union.

 

(2)           Decisions were taken at the very highest level and this meant that any appeal which would go to lower managers would not really have been a genuine appeal as decisions taken at such a high level were unlikely to be overturned.

 

(3)           Nearly 900 staff were affected by the redundancies and the company could not have justified the resources required to provide individual appeals to each member of staff affected especially as decisions taken at such a high level were unlikely to be changed.

 

58. The claimant's case was that the outstation in Belfast is still open and the business is still operating as before. We reject that contention given the clear evidence by the respondents that there were several consequences of the closure of the Belfast outstation as follows:

 

(1)           Staff numbers reduced substantially;

 

(2)           There were savings on property costs;

 

(3) Logistics in relation to rosters were simplified;

 

(4)           Flexibility improved and costs were saved by centralising operations in London;

 

(5)           Night-stopping Heathrow cabin crew in Belfast meant that those crew members were available for a wider pool of work and involved a saving when compared to basing staff in Belfast under the BMI model;

 

(6)           A number of BMI ground staff based at Belfast transferred with that part of the BMI business under TUPE to third-party providers.




 

Discrimination

 

59. We reject the claimant's suggestion that the redundancy process was inherently unfair because it was the first compulsory redundancy process and it was less generous than previous redundancy schemes in both companies. The redundancy process was conducted in the circumstances prevailing at the time. We do not infer discrimination of any kind, nor unfairness generally, from the fact that there may have been more generous redundancy schemes in the past, or since, by either respondent.

 

60. The claimant alleged that the dates of closure of the outstations showed that Belfast was being "picked on". We reject the claimant's case on this point as it was clear from the evidence that both Belfast and Edinburgh closed on 31 August 2012 whereas Birmingham and Manchester closed on 31 October 2012. The reason for the later closure of Birmingham and Manchester related to "Wetlease" contracts which were due to expire at that point. There was therefore a clear business reason for the difference in dates and this was unconnected to gender, age or race.

 

61. The claimant alleged that closure of the outstations put her and those who were cabin crew in Belfast at a particular disadvantage. This appears in essence to be the PCP complained of as several of the PCPs relied upon in the issues document appear to relate to the reasons advanced to us by the claimant for this decision.

 

62. All the outstations were closed for valid business reasons none of which was tainted by age, sex or race. Having assessed all of the evidence, we find that the claimant has failed to persuade us that she was treated detrimentally on grounds of age, sex or race in comparison to others and has failed in her indirect discrimination claims as set out below.

 

Race discrimination

 

63. We reject the claim for direct discrimination on grounds of race as it is clear that all the outstations were treated the same. We have no evidence in relation to the racial breakdown of those based in Belfast, in the outstations nor in Heathrow. More redundancies were made in Manchester and Birmingham than in Belfast and Edinburgh so, if anything, it could be argued that the closure of the outstations had more of an impact on the English outstations if we can assume anything at all about their racial make-up.

 

64. Both sides made reference at different points to the Neill v BA decision which was heard in this tribunal in November 2013. Despite this, the claimant brought forward no evidence to show the racial make-up of those in the outstations as compared with the BMI staff and other staff if necessary in the Heathrow. As we were presented with no evidence in relation to race, the claimant failed to show detriment on that basis and the race discrimination claims (whether direct or indirect) therefore fails.

 

65. Even if the claimant had shown disproportionate adverse impact or a particular disadvantage on grounds of race, we would have found the justification defence to any such indirect discrimination case made out for the reasons set out at para 74 below.

Sex discrimination




66. The claimant's case was that Belfast outstation was identified for closure because its crew were predominantly female. She compared her treatment to those based at Heathrow and to the pilots, engineers and ground staff based at Belfast. We reject that claim for the following reasons.




67. The respondents' evidence was that the position of the pilots was different. The pilots did not end up in Eurofleet (as alleged by the claimant) as their flight operations were different and related to particular types of aircraft. In contrast Eurofleet, Mixed Fleet and Worldwide Fleet related to the organisation of cabin crew only. After initially identifying pilots based at Belfast to be at risk of redundancy, following consultation with the pilots' union the pilots were offered alternative employment as line pilots based at Heathrow and many of them took this up. We find that they are not valid comparators as their relevant circumstances were different because they were not members of the same fleets as the cabin crew. The claimant did not contest the point made by the respondents that the pilots were organised in a different way to cabin crew. In addition the pilots were offered roles as pilots based at Heathrow which many of them took up. The alternative employment on offer for redundant cabin crew was offered to the claimant and she did not take it up. In summary we find that they are not valid comparators because of the difference in the way the two groups were organised and the difference in the posts available to the two groups.

 

68. The respondents' evidence was that the engineers were also in a different position to the cabin crew. There are 4 engineers remaining in Belfast. BA retained some outstation engineers following the transfer as BA had retained some bases where engineers were employed. In bases where BA did not have a presence, the engineers based there were placed in a pool for redundancy based on their place of work in the same way that cabin crew were treated. As the engineers based in Belfast transferred to BA's engineer base there, their circumstances therefore differed from that of the Belfast-based cabin crew and the claimant has thus failed to show less favourable treatment.

 

69. It was agreed by both sides that ground staff based in Belfast TUPEd to another provider at Belfast. Their circumstances therefore differed from the claimant's and she has therefore not shown less favourable treatment.

 

Indirect Sex discrimination




70. We have evidence in the form of statistics in relation to there being more women than men in the outstations as compared to those in Heathrow. In our assessment of the statistics we have looked at the group of outstations as a whole as compared with those BMI staff in Heathrow as all the outstations were treated the same.

 

71. The thrust of the claimant's complaint was that the BMI staff in Heathrow were treated more favourably than those in Belfast because of gender.

 

72. The statistics produced to us show that the percentage of women in all the outstations was 83% whereas the percentage of women in Heathrow on the respondent's account was 67.4% or on the claimant's account 64%.

 

73.          We accept that the claimant has shown that the closure of the outstations had a disproportionate adverse impact on women in the outstations given the statistical difference.

 

74. We find, however, that the respondents have validly made out the justification defence for the following principal reasons:

 

(1) There were economic, organisation and technical reasons for closure of the outstations which entailed changes in the workforce and these reasons were unconnected to gender;

 

(2) The reason for closure was not simply because of cost but related to simplification, productivity, and flexibility (see paragraph 54 above);

 

(3) The legitimate aim pursued was the streamlining of the business into one business model with a view to making it economically robust in circumstances where BA had emerged from previous financial difficulty and had then taken on a failing airline;

 

(4) The means adopted, namely, the closure of the outstation whilst preserving the position of the staff in London (due to the operation of TUPE) and offering the chance to apply for vacancies to those affected by redundancy, was a proportionate means of achieving that legitimate aim in the circumstances of this case.

 

Age discrimination

 

75. There were three grades of seniority of cabin crew namely cabin crew, flight supervisor and cabin services performance manager. The latter two categories were regarded as senior cabin crew because of supervisory and management responsibilities.

 

76. The claimant's case on age discrimination was described in the issues document as an indirect discrimination claim. At hearing however the claimant also appeared to allege direct discrimination alleging that the Belfast outstation was not attractive to BA because there were so many in that outstation who had over 20 years' service. The claimant's case was that there were more people over 40 and over 50 in Belfast than in Heathrow.

 

77. We do not accept the claimant's age discrimination case as:

 

(1) All outstations were treated the same and we have no evidence Belfast was picked on;

 

(2) We accept the evidence of the respondents' witnesses that the seniority of staff was not an issue for them. Seniority in terms of length of service was discussed with Unite as this was a concern raised by Unite as to how non-financial preferential treatment related to seniority would be dealt with when merging two sets of staff in Heathrow. Unite made a proposal on how to deal with this and this was accepted by management. We therefore reject the claimant's allegation that this constituted evidence of an animus by management towards older staff;

 

(3)           We have no evidence of the grade seniority of staff having a direct correlation to their age especially as the respondents' uncontested evidence was that promotion could be attained after only two years' service.

 

78. There was a disproportionately high number of senior (ie higher grade) staff in Belfast which meant that they regularly had to work as main crew because only a certain number of managers were required on each flight. This effectively increased costs as staff were paid at a higher rate to do a lesser job when more senior staff had to work as cabin crew on flights when there was an excess of senior grades on the flight. This happened regularly on the Belfast route because of the high number of senior grades based at Belfast. In these circumstances it was valid of the BA to note the disproportionate number of senior grade staff in Belfast when looking at its productivity.

 

79. It is for the claimant to make clear the basis for her assertion that there was a particular disadvantage suffered by those aged over 40 and over 50 and she has failed to do so.

 

80. Even if the claimant had shown the requisite particular disadvantage, we would have found the employer to have made out the justification defence for the same reasons as outlined above at para 74.

 

Alternative Employment




81. The claimant's case was that she should have been slotted into a post in Eurofleet whereas she was simply offered the opportunity to apply for vacancies in other areas of BA's business. In the event the claimant did not avail of any of the opportunities on offer. The claimant's case was that this rendered her dismissal unfair, that it was evidence that Belfast was "picked on" and that Belfast was treated in a discriminatory way. As set out above, we do not accept that Belfast was picked on and we reject below the claimant's case that BA failed to offer alternative employment.




82. The concept of alternative employment is relevant to two separate scenarios in a redundancy situation as follows:

 

(1) Where an employer offers suitable alternative employment to an employee who unreasonably refuses it. In these circumstances the employee can be dismissed fairly without the right to a redundancy payment;

 

(2) In relation to the employer's obligation to try to mitigate the effect of redundancy on affected employees. This relates to whether or not the dismissal for redundancy is fair or unfair.




83. In order to mitigate the effects of the redundancy situation on the affected staff (including the claimant) the respondent offered the chance to apply for the following:

 

(1) Available vacancies in Mixed Fleet. This involved giving the opportunity to the staff to apply: with a simplified application process; with prioritised access to outstation crew; with an extended deadline; with a one-off discretionary payment of £10,000 as a "sweetener" as the roles on offer were on lesser terms and conditions albeit that there was a possibility of promotion in the future. In the event the claimant did not apply for this option.

 

(2)           Vacancies in Gatwick Fleet . The vacancies arose after the claimant's termination in September 2012 and, whilst the claimant expressed an interest in September 2012, she did not attend the interview because the flight was not going to be paid for by the respondent. The respondent disputed the claimant's assertion that it paid for other outstation staff to go for interview. We had no evidence either way on this point and, as it is up to the claimant to prove that primary fact, we find that she has failed to do so and we therefore do not find that there was a difference in treatment between former BMI Belfast crew and former crew from other outstations. In addition, the claimant agreed in evidence to us that she did not intend to take this job anyway because of the level of pay. This being the case the claimant has also not shown that she actually suffered a detriment on this point.

 

(3)           Vacancies in BA Cityflyer . These were open to Belfast and Edinburgh crew. This is clear from the documentation and is at odds with the claimant's assertion that only Edinburgh crew were allowed to apply. The claimant did not express an interest in this.

 

(4)           General vacancies on the BA Intranet.

 

(5)           The employer also gave access to employees and former employees to Fairplace Cedar which was a coaching and support organisation tasked to give advice on career transition to those affected by redundancy.

 

84. In this case there was no question of the employer seeking to oblige the affected employees to take a job in Mixed Fleet given the disadvantageous terms and conditions and remuneration. The issue for us is whether the requirement by the employer to offer the affected employees the chance to apply for posts in Mixed Fleet, rendered the decision to dismiss the claimant for redundancy unfair.

 

85. All cabin crew roles based at outstations were identified as redundant roles as the outstations were to close. BA did not have outstations so there were therefore no roles for them to transfer in to under TUPE. They transferred to BA but were immediately redundant because there were no roles for them. Once the outstation cabin crew staff were identified to be at risk of redundancy there was no suitable alternative employment for them as outstation staff based in outstations as all outstations were closing.

 

86. The claimant's post was therefore redundant, she was fairly in a pool for redundancy and the employer was complying with its duties as a reasonable employer to offer any vacancies in its companies. It was within the band of reasonable responses for a reasonable employer to give the opportunity to apply for vacancies in the rest of the business in other locations . There is no requirement to slot an employee into a vacant post without interview. We therefore reject the claimant's case that this rendered the dismissal unfair or that we should draw an inference of discrimination from it.

 

87. There was no requirement under TUPE or in general fairness for the employer to move the claimant to Eurofleet in circumstances where, due to a previous agreement with the trade union there was ring-fencing of those within that group and the group was only extended because of the operation of TUPE in relation to a specific group of staff. Opening up that fleet to the group of staff with TUPE protection did not oblige the employer to include the outstation staff who were fairly in a pool for redundancy.

 

88. The mobility clause in the claimant's contract did not oblige the respondent to place the claimant in a post in London, as her base was in Belfast.

UDW/ Breach of contract claims




Redundancy Calculation and notice pay

 

89. We reject the claimant's claim in this regard as set out below.

 

90. The BMI policy document defines what is included in pay for the purposes of redundancy calculation. Nowhere does it say that pay includes allowances. It also stipulates that the redundancy payment is double statutory redundancy calculation. Any previous redundancy exercise by either BMI or BA is irrelevant to the issue of the redundancy calculation.

 

91. The claimant agreed in cross-examination and during the hearing that the calculation of her pay for redundancy purposes was calculated on her previous 3 months' pay. As the policy did not provide for the inclusion of commission or allowances in the redundancy calculation, it was valid for those not to be included in her calculation. Commission was not earned in the relevant period in any event.

 

92. The claimant complained that she was promised a redundancy pack but that it came in December 2012 some months after she left. We do not find this to amount to evidence supporting the allegation that relevant decisions and actions were tainted by discrimination on any ground nor do we find this to amount to breach of contract.

 

93. The claimant alleged that she did not get proper notice. It is clear from the redundancy calculation that she was paid in lieu of notice and we therefore reject any claim in that regard.

 

94. The claimant's original date for termination was 20 August which was extended by agreement with the trade unions. Extending the date in this way did not oblige the employer to give the claimant actual work whereby she could earn commission and other allowances which had previously gone with the performance of her duties. We therefore reject any claim for breach of contract or unlawful deduction from wages in that regard.

 

95. During the changeover period the former BMI operations conformed to BA standards. One important change was that BA provided complimentary drinks and snacks whereas BMI had charged customers for them. The BMI model meant that staff could earn commission on goods sold. That opportunity to earn commission disappeared when the BA model was implemented during the transition period.

 

96. It does not amount to a breach of contract or unlawful deduction from wages if in a business changeover over a period following a TUPE transfer, the actual operation of the business means that the opportunity to earn commission does not arise. We were referred to no term in the contract which obliged the respondent to credit the claimant for unearned commission and no term which obliged BA to give the claimant the opportunity to earn it.

 

97. The claimant alleged that in 2005 BMI had negotiated a pay settlement with cabin crew whereby they would have the ability to earn commission on goods sold on aircraft and in return they would do a "cabin clean" of the aircraft. The claimant's point essentially was that the cabin clean was paid for by the commission and, therefore, the lack of opportunity to earn commission whilst still being obliged to carry out the cabin clean meant that there was an unlawful deduction from wages or breach of contract. The claimant referred us to a BMA letter to all staff of 5 July 2005 to support her claim on this point. The paragraphs state as follows:

 

"The commission rate for the new business model/product has now been established at 6%. Based on projected uptake, and taking into consideration route fluctuations and the two class cabin on some routes, we believe the average achievable payment per year will be £1,026 per crew member. It is likely that some crew members will earn in excess of this amount whilst others may earn less for a number of reasons. Never the less the average cabin crew member should realistically be able to achieve in excess of £1,000 from onboard selling. We will, from time to time, amend the scheme if required. In the meantime, it will be reviewed after three months and then again after six months in order to ensure it is working effectively.

 

Following your feedback, we have revisited the cleaning specification and you will not be required to undertake the proposed cabin tidy. We have arranged that on every turnaround into London Heathrow the cleaners will carry out a cabin tidy and service the toilets and galley areas as normal. As a result of the removal of this proposed change, there will be no financial compensation as previously suggested. At the b-end, you will only be responsible for ensuring all rubbish is gashed and that seat belts are crossed. The majority of the rubbish will of course be collected in-flight, using the tidy bags supplied to the customer. Collecting any remaining rubbish, and crossing the seat belts, can be done whilst carrying out the security check".

 

 

98. We reject the claimant's claim in relation to the cabin cleaning point. The letter to which we were referred makes no connection between the commission point and the cabin cleaning point and indeed states that the cabin cleaning will be done by the cleaners. It is for the claimant to prove the primary facts in relation to this allegation and she has failed to do so.

 

Staff Travel




99.          The claimant's claim, in essence, was that she had a term in her contract with BMI which meant that she could avail of the staff travel benefit during her employment and following her date of retirement no matter when she left the employment. In the event as part of the redundancy package the claimant was given two years' access to an equivalent benefit under the BA staff travel scheme after the date of termination of her employment.

 

100.       For all the reasons set out below we reject the claimant's case that she had a contractual term which survived her redundancy and the merger of the BMI business into the BA business.

 

(1) Under the BMI contract it is clear that this was a non-contractual benefit, was discretionary and it was liable to be changed periodically by BMI;

 

(2)           The BMI routes were transferred to BA and the staff travel policy related to BMI routes. BMI policy was changed on 9 May 2012 and sets out the two year entitlement under the BA policy following the transfer. It stated explicitly that following the transfer any eligibility for transferred staff under the BMI policy would cease. This change of the policy occurred before the claimant actually transferred to BA and was in accordance with BMI's right to change the policy;

 

(3)           Even if it was a contractual benefit it was changed at BMI's discretion in accordance with the contract;

 

(4)           As the claimant transferred under TUPE with her BMI contract, there was no obligation on BA to give the claimant access to its more generous discretionary scheme once she transferred.

 

Grievance

 

101. The claimant raised a grievance and sent it to Mr Devlin of BMI. He replied in detail and asked the claimant for further details of the alleged discrimination. The claimant in the end did not respond to this, giving conflicting reasons at our hearing in this regard. The net position was that she did not respond to the respondents with details of any alleged discrimination but rather lodged her claim to the tribunal.

 

102. We decline to draw any adverse inference from any alleged failure to deal with the grievance as the claimant did not give the detail requested and we therefore find this point unsupportive of the claimant's discrimination claims. At the stage the claimant raised her grievance, the claimant had been dismissed for redundancy so we find any allegation in this regard irrelevant to liability in the unfair dismissal claim.

 

Summary

 

103. An agreed list of legal and factual issues was presented to the tribunal before the claimant's solicitors came off record. Within that agreed list it is clear that certain issues were in dispute between the parties. The list of issues ran to 59 paragraphs with added sub-paragraphs and in particular there was a markedly high number of PCPs relied upon by the claimant in relation to each of the three categories of indirect discrimination which meant that the issues document ran to 10 pages.

 

104. We do not intend to list every single one of the issues to set out our findings as we are mindful of the fact the purpose of the agreed list of legal and factual issues is essentially twofold as follows:

 

(1) To enable the parties to provide witness statements to cover the issues in the case;

 

(2) As an aid to the smooth running of the case as opposed to being akin to a pleading in High Court litigation. (See the comments of Mr Justice Langstaff in the case Millin v Capsticks Solicitors and Others [2014] EAT 0093/14.)

 

105. The first issue was whether or not the respondents aided and abetted each other in acts of discrimination. The respondents disputed that this was in the claim at all. Given our findings that no discrimination occurred, this issue falls away.

 

106. Under the heading "Unfair dismissal and TUPE", the claimant essentially alleged that she was unfairly dismissed in general terms and that she was automatically unfairly dismissed because it was in connection with a TUPE transfer. She also alleged that there was unlawful variation of the contract as it was in connection with a TUPE transfer.

 

107. Our findings in summary under this heading of the issues is that:

 

(1) The claimant was not unfairly dismissed as she was fairly selected for redundancy;

 

(2) Her dismissal was in connection with a TUPE transfer but was lawful because it was for an ETO reason;

 

(3) The allegations of inadequate consultation are not well-founded;

 

(4) Insofar as there was any variation of contract, it was for an ETO reason.

 

108. In particular one of the issues under this heading was whether the claimant's initial base of operation was Belfast as contended by the respondents or whether it was London Heathrow as contended by the claimant. In contrast, at hearing before us, the claimant contended that she was based in the air and at bases namely any of the bases at which she landed (Issue 2). As set out above we find that the claimant's base and place of work was Belfast.

 

109. The allegation that the collective redundancy was inadequate is rejected. At all times the employer negotiated with Unite, the relevant trade union and there was no obligation on the employer to have separate consultation with the outstations in a situation where it was Unite which nominated its negotiators. In the event the claimant and local Belfast trade union officials attended a sizeable proportion of meetings.

 

110. The issues refer to an alleged failure to deal with the grievance in accordance with the LRA code. The grievance was raised after the employment ended, we do not find the treatment of it supportive of the discrimination claims and it is irrelevant to liability in the unfair dismissal claim which we have dismissed.

 

111. The claimant alleged indirect age discrimination and relied on the age groups of 40 and over and 50 and over. As outlined above the claimant failed to establish the connection between seniority, rank, and length of service to establish a particular disadvantage suffered by those in her group and for this reason that claim fails. There is therefore no need for us to look in detail at the 13 PCPs listed. In this regard we note in the issues that the PCPs listed were stated to be "alleged PCPs relied upon by the claimant". We would have found the justification defence made out in any event.

 

112. We also note that the particular disadvantage alleged was in comparison with the treatment of not only the former BMI crew based in Heathrow but BA crew based in Heathrow. We reject the claimant's claim on this point as she was validly and fairly in the pool with outstation crew so comparison with BA staff generally when BA did not have outstations is not comparing like with like.

 

113. The claimant pursued an allegation that the Belfast outstation was singled out because of seniority of the crew there. As set out above we reject that claim.

 

114. The claimant alleged indirect sex discrimination. Whilst the issues also list that the claimant alleged instructions to discriminate, pressure to discrimination and aiding unlawful acts under Articles 40, 41 and 43 of the Sex Discrimination Order, it was disputed by the respondents that the claim included such allegations. In the event no evidence was presented to us that there were any such acts as the thrust of the case presented to us related to the adverse impact on women in the Belfast outstation when looking at statistics. The claimant also compared her treatment to the treatment of pilots and engineers or ground crew at Belfast. We reject any claim for direct sex discrimination as set out above and find the justification defence made out in the indirect discrimination claim.

 

115. In particular there was an allegation that the statistics gathered on the performance of outstations ignored the part-time status of the staff in Belfast. We reject that allegation given our factual findings set out at paragraph 54(1) above.

 

116. Insofar as the claim presented to us contained a direct sex discrimination claim we find that the claimant has not established less favourable treatment as set out at paragraphs 66-69 above.

 

117. The claimant claimed direct race discrimination in several respects and alleged contravention of Articles 30, 31 and 33 of the Race Relations (NI) Order which relate to instructions to discriminate, pressure to discriminate and aiding unlawful acts. We heard no evidence in relation to any such breaches.

 

118. The claimant failed to establish the race, nationality or ethnic origins of any of the staff groups involved and therefore could not show that any treatment (if any less favourable treatment occurred) was on grounds of race.

 

119. The claimant alleged indirect race discrimination and relied on 30 PCPs. As we had no evidence of the racial makeup of the groups in question the claimant's case in this point fails entirely without us having to look at PCPs and any particular disadvantage point. We would have found the justification defence made out in any event for the reasons set out above.

 

120. The claimant alleged breach of contract and unlawful deduction from wages which in summary related to the staff travel point, commission, flight allowances, calculation of redundancy and notice period. As set out above we have rejected the claims on this ground.

 

121. The claimant's claims are therefore rejected in their entirety.

 

 

 

 

 

Employment Judge:

 

 

Date and place of hearing: 5, 6, 7, 8, 9 and 13 October 2015, Belfast.

 

 

Date decision recorded in register and issued to parties: