Miss T Donaldson and Mrs T de Mello v British Airways plc: 3300980/2021 and 3301038/2021

EMPLOYMENT TRIBUNALS

Case No 3300980/2021, 3301038/2021

Between

Miss T Donaldson and Mrs T de MelloClaimant

British Airways plcRespondent

Before

Employment Judge Anstis

Date 11 June 2025

JUDGMENT

[1]The first claimant’s claim of indirect race discrimination is dismissed on withdrawal.

[2]The claimants’ claims of indirect sex discrimination are dismissed.

[3]The claimants’ claims of indirect age discrimination are dismissed.

[4]The claimants’ claims of direct age discrimination are dismissed.

[5]The claimants’ claims that they have suffered less favourable treatment as parttime workers are dismissed.

[6]The claimants’ claims of unfair dismissal are dismissed.

[7]The second claimant’s claim of wrongful dismissal is dismissed.

REASONS

a. A. INTRODUCTION 5 The hearing Introduction and developments in the first two weeks The third week The fourth week Closing submissions Orders made

b. B. THE FACTS 13 Working arrangements for cabin crew Scheduling Aircraft types, recency and familiarity The Covid-19 pandemic, its effects on passenger aviation and the respondent generally Furlough – the CJRS The respondent’s initial use of furlough The cost to the respondent of furlough Furlough for the claimants Redundancies and reorganisation plans Initial proposals Information and consultation from 28 April 2020 to trade union attendance on 15 July 2020 Trade union involvement from 15 July 2020 Events after the issuing of notice The dismissal of the claimants The first claimant The second claimant Wrongful dismissal – the second claimant

c. C. THE LAW 62 Indirect discrimination Indirect discrimination generally The PCP Group disadvantage - judicial notice and the childcare disparity Group disadvantage – a statistical approach and causation Individual disadvantage Combining PCPs Justification Direct discrimination The burden of proof in discrimination cases The Part-Time Workers Regulations

d. D. DISCUSSION AND CONCLUSIONS 71 Indirect sex discrimination – individual PCPs PCP1 – the mixed flying PCP PCP2 – the unclear scheduling PCP PCP3 – the ballot PCP PCP4 – the pay PCP PCP5 – the shift PCP PCP6 – the unequivocal acceptance PCP Indirect sex discrimination - combining the PCPs Statistics Other matters Conclusion on indirect sex discrimination Indirect age discrimination – individual PCPs Indirect age discrimination - combining the PCPs PCP 4 - justification The respondent’s position The claimants’ position Discussion and conclusions Conclusions on indirect age discrimination Matters said to be suggestive of direct age discrimination Donkor Conclusions on direct age discrimination Part-time workers discrimination The reason for dismissal Fairness

e. E. ADDITIONAL MATTERS 113 APPENDIX – LIST OF ISSUES 114 FACTUAL BACKGROUND JUDICIAL NOTICE SOUGHT BY THE CLAIMANTS JUDICIAL NOTICE SOUGHT BY THE RESPONDENT INDIRECT SEX DISCRIMINATION INDIRECT AGE DISCRIMINATION – PCPs PART TIME WORKER CLAIMS A. INTRODUCTION

FACTUAL BACKGROUND

[1]Mrs De Mello’s case is case number 3300980/2021 and Miss Donaldson’s case is case number 3301038/2021. However, for the purposes of this decision Miss Donaldson is to be considered as the “First Claimant” and Mrs De Mello the “Second Claimant”. This was agreed as an administrative point with the parties, given that entirely separate multiple proceedings are ongoing under Mrs De Mello’s name.

[2]These claims arise out of and concern measures taken by the respondent during the Covid-19 pandemic to reduce its “fleets” of cabin crew from three to one.

[3]Up to 2010 there were two fleets: Worldwide Fleet (which flew long haul) and Euro Fleet (which flew short haul). In this hearing these have been described as the “Legacy Fleet” or “Legacy Fleets”. The first claimant was employed on Euro Fleet and the second claimant was employed on Worldwide Fleet.

[4]In 2010, in controversial circumstances, the respondent closed the Legacy Fleets to new entrants. New recruits would instead join the “Mixed Fleet”, which flew both long and short haul. Flying both long and short haul routes was known as “mixed flying”.

[5]The distinction between fleets was more than simply about where you might fly to. Each fleet had separate terms and conditions (including different pay rates and allowances) and separate arrangements for scheduling. They were represented by different branches of Unite the Union for collective bargaining purposes. In the case of the Legacy Fleets the relevant union branch was known as “BASSA”.

[6]Subject perhaps to some minor details, the terms and conditions and working arrangements for the Legacy Fleets were more favourable to employees than those for the Mixed Fleet.

[7]How to characterise the steps taken by the respondent during the Covid-19 pandemic was a matter of dispute between the parties, but the effect was that at the end of those steps the respondent had one fleet of cabin crew rather than three. This new fleet was known as the Heathrow Fleet.

[8]At one point this idea of a “Heathrow Fleet” seemed to be argued by the claimants as being simply a new name for the Mixed Fleet, rather than a new fleet in its own right. For now I simply note that what had been three fleets became one fleet, and the terms and conditions and working arrangements for that fleet had much more in common with the Mixed Fleet terms than either of the Legacy Fleet terms and conditions. They included a requirement for mixed flying.

[9]In broad terms, the claimants’ position is that the respondent had long wanted to remove the favourable Legacy Fleet terms and conditions, and seized on the Covid-19 pandemic as being an opportunity or pretext to force Legacy Fleet employees to either leave or remain on substantially worse terms and conditions. The respondent contends that these changes were necessary in order for it to survive and eventually recover from the unprecedented effect that the Covid-19 pandemic had on civil aviation generally and on its business in particular.

[10]What resulted was a wide range of legal claims including unfair dismissal and multiple indirect discrimination claims. As described below the claims eventually pursued by the claimants at this hearing are in somewhat more limited terms. The hearing Introduction and developments in the first two weeks

The hearing

[11]This hearing had been listed to take place from 24 February – 4 April 2025 as a “Common Issues” hearing. That is, a preliminary hearing to determine certain matters based on lead claimants.

[12]The hearing commenced on 24 February with a short discussion on matters of case management and arrangements for the hearing, following which the first week of the hearing was taken up with me reading into the case. It is no surprise that the documentation involved was substantial. The list of issues alone ran (at that time) to almost 200 pages and the evidence comprised around 1,000 pages of witness statements, more than 12,000 pages of documents in a main bundle and multiple subsidiary bundles each containing hundreds, sometimes thousands of pages.

[13]The hearing was listed at a time when there were more than 30 claimants, with one self-represented claimant and the remaining claimants represented by three different firms of solicitors.

[14]Different arrangements adopted by the represented claimants meant that six advocates were expected at the hearing for the claimants (including the one self-represented claimant).

[15]That continued to be the case up to the week before the hearing, but shortly before the hearing and during the first week of the hearing (the reading week) I was notified of a number of claims that had been resolved and which were consequently withdrawn.

[16]On the second week of the hearing (when live evidence had been due to start) the parties asked for time for further discussions between themselves. I do not need to go into the events of the following few days, but it is sufficient to say that no live evidence was heard on the first three days of the second week of the hearing, and that by Thursday 6 March 2025 there remained only two claimants, Miss Donaldson and Mrs De Mello.

[17]Separate judgments have been issued in respect of those claimants whose claims have been resolved.

[18]The hearing thus started in earnest on the ninth day of the listed period: Thursday 6 March 2025. The remaining claimants were represented by Mr M Engelhardt-Sprack of counsel, instructed by TMP Solicitors, and the respondent was represented by Mr B Carr KC and Ms T Barsam, instructed by Baker & McKenzie. Ms J McGuigan of TMP Solicitors worked closely with Mr Engelhardt-Sprack on matters arising during the hearing, and a number of the documents presented by the claimants (including their written closing submissions) were in the joint names of Mr Engelhardt-Sprack and Ms McGuigan.

[19]While the reduction of the number of claimants from over 30 to two did not lead to a corresponding reduction in the issues to be resolved, it had a substantial practical effect on the nature of the hearing. There was discussion at the start of the day on Thursday 6 March 2025 about what the reduction in the number of claimants meant for the list of issues.

[20]It was immediately accepted by the claimants that some issues (principally indirect discrimination claims in relation to voluntary redundancy) previously identified fell away and did not need to be determined, as the remaining claimants that had not taken voluntary redundancy.

[21]There was discussion about whether the way in which some issues were framed in the list of issues accurately described the claims the claimants wanted to bring or accurately reflected the legal position. I considered that to be particularly relevant for the indirect discrimination claims, where I encouraged the claimants to be precise about the terms of the PCP alleged. I expressed my view that, particularly in circumstances where the relevant parties had been legally represented throughout, I would consider myself bound to determine the case based on the PCPs plead and set out in the list of issues.

[22]In saying this, it is relevant to note that the underlying pleadings for the remaining claimants did not originate with the claimants’ current representatives, but had been taken on by them when the claimants changed representation.

[23]It was agreed between the parties that we could proceed to hear the respondent’s first witness without any new version of the list of issues, so the remainder of the day was taken up with the evidence of Simon Philcox, for the respondent.

[24]An application for remote access to tribunal papers was also addressed on Thursday 6 March 2025, and is the subject of a separate written order.

[25]It had been agreed by the parties that the listing of the case would provide for one non-sitting day a week: Friday if possible. The intention was that in what was expected to be a complex and hotly contested hearing both the parties and the judge could have a day to review and if necessary document any developments during the week, and prepare for the following week. This would also allow the parties and the judge some time to address any other matters they may have to deal with, rather than being completely confined to the one case for six weeks.

[26]In the second week that had the advantage that the claimants could take Friday to work though the question of what changes may need to be made to the list of issues in these new circumstances, or to reflect on some of the legal and other matters that had been raised. That included: 26.1. What disputes there may be between the parties as to the “pool” in respect of any particular PCP. The list of issues at present was framed in respect of indirect discrimination by reference to “comparators”, and while it could be seen that in general the pool may be all three fleets prior to the Covid-19 reorganisation there were some points that the respondent was making about that not being the appropriate pool for particular alleged PCPs. 26.2. The distinction between the claimants’ claims of indirect and direct age discrimination, what fleet their hypothetical 39-year-old comparator (for direct discrimination) flew with and why they were a hypothetical rather than actual comparator (it appearing to be the case that each fleet had people aged under 40 in it). 26.3. Whether it was intended that a PCP should refer to the claimants transferring to or becoming employed on “Mixed Fleet” (a defined term in the pleadings) or whether there was some other way of describing that. 26.4. On a related point, whether some of the disadvantages that the claimants complained of arose from mixed flying as such or from some matter that was ancillary to or went with mixed flying. It did not, for instance, appear that there was anything specifically in the destination flown to or the duration of the flight that disadvantaged a claimant. It was striking that for some PCPs the first claimant appeared to be saying that anything other than exclusively short-haul flying disadvantaged her and the second claimant appeared to be saying that anything other than exclusively long-haul flying disadvantaged her. While in principle both may be possible it was not clear if having to fly both short-haul and longhaul was really at the centre of their complaints. 26.5. In respect of various PCPs relating to signature of a settlement agreement it was said that by signing a settlement agreement the claimant would lose the right to bring a claim of sex (or other forms of) discrimination, which appeared to be something that could be said of anyone signing a settlement agreement rather than something that particularly disadvantaged a group with a particular protected characteristic. 26.6. Whether, and if so on what basis, the first claimant was pursuing a claim of associative indirect race discrimination. 26.7. What precisely I would be asked to take judicial notice of in support of the claimants’ position that a particular PCP created a group disadvantage (see Choudhury P at para 48 of Dobson v North Cumbria

UKEAT/0220/19

[27]On the latter point, I pointed out to Mr Engelhardt-Sprack that both Dobson and the recent case of Marston v Perkins

[2025] EAT 20

made clear that taking judicial notice of the so-called “childcare disparity” did not automatically establish group disadvantage in any particular case. Presumably the same could be said of anything else I might be asked to take judicial notice of, although much would depend on the precise terms of what I was asked to take judicial notice of.

[28]I also invited the parties to consider a revised timetable for the hearing given that we were now to address only two claims.

[29]The parties agreed that we could not proceed to hear any further evidence from the respondent’s witnesses without a revised list of issues, and that if there were to be any dispute between the parties on the terms of a revised list of issues that would need to be resolved on resuming the hearing on Monday 10 March 2025. The third week

[30]At the start of the third week the claimants presented a revised list of claims setting out the judicial notice sought, the PCPs relied upon and the matters of direct age discrimination alleged. The first claimant’s claim of indirect race discrimination was withdrawn (and is dismissed on withdrawal in this judgment). There was considerable discussion of matters arising and time was allowed for further consideration by the parties on the morning of Monday 10 March. By the afternoon the claimants were in a position to make an application to amend their claims (in respect of the advantaged group for indirect age discrimination and comparator in respect of direct age discrimination) and the respondent made an application in respect of the scope of the unfair dismissal allegations set out in the claimants’ opening note. I gave my decision on those points at the start of the following day (Tuesday 11 March 2025) and the outcome is recorded in an order dated 11 March 2025.

[31]The tribunal recommenced hearing the respondent’s evidence on the afternoon of Tuesday 11 March 2025, hearing from Raghbir Pattar.

[32]On the morning of Wednesday 12 March 2025 I made some further observations on the list of claims that had been submitted, and invited Mr Engelhardt-Sprack to consider some points and redraw this as a list of issues, with input from the respondent as to whether the PCPs were or were not accepted. Mr Pattar’s evidence continued for the remainder of the day.

[33]Amy James commenced her evidence for the respondent on the morning of Thursday 12 March 2025. There had been discussion about whether it was possible to avoid her being on oath during the non-sitting day expected for Friday and the weekend, but no suitable way of doing this could be found, so she continued her evidence through to the end of the day and remained on oath on Friday 14 March 2025 and through the weekend.

[34]As previously, the Friday was taken as a non-sitting day. It has been arranged that during that Friday Mr Engelhardt-Sprack would provide to Mr Carr (and to the tribunal) a revised list of claims and matters the tribunal would be asked to take judicial notice of. This would, amongst other things, incorporate the issues on unfair dismissal and any other claims that it had not previously addressed. Mr Carr was then to set out whether the respondent accepted that it had and applied any of the PCPs alleged. The fourth week

[35]Mr Engelhardt-Sprack prepared a revised list of claims (now the fourth version of such a document, including the original list of issues) but discussions continued throughout the fourth week as to whether this really addressed the claims the claimants wished to make, and how it was that, for instance, a move to mixed flying disadvantaged both claimants when one had previously flown long-haul only and the other had previously flown short-haul only. This suggested there was nothing inherent in either long-haul or short-haul flying that caused difficulties with child care, but that the combination of the two created difficulties (or additional difficulties that did not arise with only long-haul or only short-haul flying). A similar difficulty seemed to exist with the PCP that was a requirement for a 21-day “on” roster, when one claimant had previously worked a 14-day “on” roster and the other a 28-day “on” roster. While it was perfectly possible that difficulties arose for both claimants on each of these scenarios what that difficulty was was not at all clear form the list of claims.

[36]Mrs James continued her evidence for the rest of the day on Monday 18 March, with Mr Monk giving his evidence on Tuesday 19 March. That concluded the respondent’s evidence.

[37]The second claimant gave evidence on Wednesday 19 March. An issue arose during her evidence as to some matters she relied on but which she said she did not want to mention in a public hearing. That point was to be addressed the next day, by which time the parties had agreed a form of rule 49 order incorporating the admission of a small number of facts by the respondent. On consideration I indicated that I was minded to make the order sought subject to any representations made by any observers at the hearing (of whom there were many). I provided an opportunity for such representations to be made but no observer made any representations and so I made the order sought.

[38]The first claimant gave evidence on Thursday 20 March. Her evidence was concluded shortly after lunchtime, and that concluded the evidence in the case. In discussion with the parties the following arrangements were made for closing submissions: - The parties were to exchange and provide to the tribunal written closing submissions by 09:00 on Wednesday 26 March (allowing three working days for them to be produced). - I would read the closing submissions during Wednesday 26 March and during that time the parties should discuss between them any points in the others’ submissions that they did not understand. To the extent that resulted in any corrections or clarifications to the written closing submissions they would be produced (in a marked-up form) by 17:00. - The hearing would resume for any further oral submissions or replies at 09:30 on Thursday 27 March, based on up to two hours each.

[39]It was acknowledged that despite the multiple lists of claims or lists of issues that had been produced even by the end of evidence there was no final agreed list of issues. The parties were to work on that and, if necessary, could call for a further case management hearing (to take place by CVP on Monday 24 March) by making an application by 15:00 on Friday 21 March.

[40]Neither party did make such an application, but on my arrival at tribunal on Monday 24 March it seemed that both parties were suggesting there was a need for such a hearing. Following further correspondence the parties agreed that the hearing was not necessary, and they provided the agreed list of issues that appears at the Appendix to this decision. Closing submissions

[41]The parties provided written closing submissions on the morning of Wednesday 26 March 2025, with oral replies (and answers to some questions I had provided the parties with) following on Thursday 27 March 2025, following which I adjourned in anticipation of being able to deliver an oral judgment (with reasons) on Friday 4 April 2025. At the conclusion of my oral judgment the claimants requested these written reasons and arrangements were made (documented in a separate order) for a case management preliminary hearing in respect of the remaining claims brought by the claimants. Because written reasons were requested I did not prepare a separate judgment but have prepared this judgment and reasons to be issued together.

[42]While there will later be some criticism of the position adopted by the claimants on particular matters I am grateful to the parties for their assistance in this case, and also for their patience on occasions when I had to break the hearing or start late due to personal appointments. Orders made

[43]The following written orders were made during the course of the hearing: 7 March 2025: in respect of access to tribunal papers, 11 March 2025: amendment and scope of the unfair dismissal claim 24 March 2025: under rule 49

[44]A case management order was made on conclusion of the hearing, and prior to issuing these written reasons I have made a further order dated 22 May 2025 in respect of an application made by the claimants. There is now also a further order dated 11 June 2025 in respect of the same subject matter. B. THE FACTS

[45]The respondent needs no introduction. It has been described as the UK’s flag carrier, operating a wide range of international and some domestic routes principally from its hub at Heathrow airport. It is a subsidiary of IAG, a quoted company which comprises the respondent, Aer Lingus, Iberia and other aviation interests. This case only concerns its operations at Heathrow airport.

[46]The claimants are both long-serving members of cabin crew, flying from Heathrow. The first claimant was employed in Euro Fleet and the second claimant was employed in Worldwide Fleet. The respondent has not criticised their work and nothing in this decision is any reflection on any lack of professionalism or ability in their work. Both have given accounts of their long service and dedication to the respondent and its customers. Their particular seniority within the cabin crew hierarchy is not material to this decision.

[47]Their domestic circumstances at the time of the events in question are relevant to their claims and will be referred to in more detail later, but I note for now that in September 2020 the first claimant was living in Cheshire with her partner (who also worked for the respondent at Heathrow, on a ground-based shift pattern) and their ten-year old daughter. They had previously lived in Surrey, moving to Cheshire in 2019, but the move had not worked out as they hoped and they were making plans to move back to nearer Heathrow, which they eventually did, relocating to Hampshire. At the time in question she was on longterm sick leave.

[48]In September 2020 the second claimant was living close to Heathrow with her husband and younger son, who was 16 and had just started at college locally. Her elder son was 20 and had just taken up a position at college (or university as it would be called in the UK) in Dallas, Texas.

[49]Another practical difference between the claimants was in their working circumstances in the period immediately prior to their dismissals. The first claimant had been on long-term sick leave since early 2020, and so never flew during the Covid-19 pandemic or the period with which the claims was concerned. It seems she was placed on furlough from 1 May 2020 for the remainder of her employment, but in any event she was not fit to fly. The second claimant was furloughed through to August 2020 but resumed flying on 10 September 2020 Working arrangements for cabin crew Scheduling

[50]Elements of the dispute between the parties arise in the context of working arrangements (and in particular part-time working arrangements) for cabin crew. With the exception of the “on” duty period, no elements of the claim depends on the detail of these arrangements, and neither side gave any particular oral evidence on the detail of their working arrangements, but it is important to note the following, which applied to some extent both before and after the reorganisation that is in question in this case:

[51]Scheduling of cabin crew is a complex matter. Cabin crew work to “on” periods and “off” periods of duty. A full time member of cabin crew will, subject to holidays or other absences, always be “on”.

[52]Where a member of cabin crew is on a part-time contract this is not dealt with by, for instance, working mornings only or only particular days of the week. That would be impossible given the nature of the work. Instead, they work full time for an “on” period and then have an “off” period, during which they cannot be deployed on duty. So a part-time role is scheduled in the same way as a fulltime role, but with “off” periods during which the individual does not work.

[53]Prior to the reorganisation, for the first claimant (on a 33% contract on Euro Fleet) this meant 14 days on followed by 28 days off. For the second claimant (on a 50% contract on Worldwide Fleet) this meant 28 days on followed by 28 days off. It is agreed between the parties that on completion of the respondent’s reorganisation this would become respectively 21 days on with 42 days off and 21 days on and 21 days off (the respondent having taken the view that consistent scheduling in blocks of 21 days was the most efficient way of scheduling). Indeed, following the reorganisation everyone (including full timers) was to be subject to a 21-day scheduling block. What distinguished full time employees from part-time employees was the “off” period, and different levels of part-time working are distinguished by the duration of the “off” period.

[54]A scheduling block is a period during which a member of cabin crew can be required to work, but this does not mean that they are flying or actually at work at all time throughout the scheduling block. There are at least three (and perhaps more) possibilities. On any particular day or at any time during the scheduling block a member of cabin crew may be on a rest day (and therefore not required to work), on standby (the details of which I was not referred to in detail, but which is essentially a mechanism to have reserve crew available in case of disruption or non-availability of scheduled crew – they will only actually fly if there is a need for them to do so) or scheduled to fly. If they are scheduled to fly, this will require them to report for duty a certain amount of time before their flight.

[55]Flying short-haul may operate on a there-and-back basis – that is, the member of cabin crew reports for duty, flies with an aircraft to, say, Paris, and returns with the same crew on that same aircraft the same day. That is not the only way in which short-haul flying works, and I was told (and it does not seem to be disputed) that around one in three short-haul flying duties would involve an overnight stay away from home. It was also not necessarily the case that the same crew would return with the same aircraft. There may be occasions on which the crews would swap over, and this may involve more than one night away from the United Kingdom.

[56]Flying long-haul did not generally operate on a there-and-back basis. Having flown out of the UK, cabin crew would stay in the location they flew to and return sometime later, typically after an overnight stay and sometimes more than one night away.

[57]Rest days may arise in a number of different ways. A rest day might simply be scheduled as a day off at home in the United Kingdom. A rest day may be overseas or elsewhere in the United Kingdom awaiting a return flight. Particularly in the case of long-haul flying there were restrictions on back-toback flying, meaning that there would be rest days on an individual’s return to the United Kingdom (known as “minimum base turnaround”). Just as an individual could not, say, fly to New York and continue their work on an immediate return flight, they could not fly from New York to London and then immediately be scheduled to fly back to New York. The “minimum base turnaround” and rest days following an individual long-haul flight could amount to several consecutive days within a duty block.

[58]Cabin crew may have personal reasons of many different kinds for preferring or not preferring to fly on particular routes or according to particular scheduling diagrams. Some may have reasons to prefer travelling to particular countries. Some may want to maximise their earnings by flying to countries that attract particular levels of allowances. Some may want to maximise their rest days without being concerned whether they are in the United Kingdom or not (in which case it would seem they would chose the longest long-haul routes that allowed for the most rest days). Some may have commitments at home or otherwise that mean that they prefer particular routes and scheduling arrangements. These preferences have been accommodated to some extent over time by the respondent by various measures including “bidding” (opting in advance for preferred routes at particular times in advance of the scheduling period) and “swapping” (swapping duties with another member of cabin crew).

[59]I heard that there was some limited opportunity for special schedules to be created in cases of individual need – for instance, there-and-back only flying in support of a phased return to work after sickness absence, but that this was typically only done for short periods of time in aid of rehabilitation.

[60]All of these concepts were, no doubt, second nature to experienced cabin crew and their managers, but they are very unusual compared to what might be expected on the ground. Of course, all of this depends on scheduling running according to plan. I mean no disrespect to the respondent and its employees in suggesting that the nature of complex flying arrangements is that things will often not go according to plan. For cabin crew this may mean extended unscheduled periods of time away from home, even if scheduled to fly on a simple there-and-back pattern. Mr Monk said that it was essential that each member of cabin crew always carried an overnight bag in case of disruption. Disruption may mean that they are stranded away from home for several nights, or that their schedule is changed at short notice or on a standby basis to cover for members of staff who themselves were unavailable due to disruption. For instance, even on short-haul routes if a member of cabin crew is taken ill on arrival at their destination, another member of cabin crew may have to unexpectedly fly out to cover their return flight. On one occasion it seems that the first claimant was stranded in Scandinavia for three or four nights due to disruption on her planned schedule.

[61]Except for the precise “on” and “off” periods and some points to do with bidding and swapping, everything I have mentioned above was taken by the parties to be inherent in the role of cabin crew, and applied both before and after the reorganisation that is the subject of these claims. I cannot be confident I have given a fully accurate account of this or used the correct terminology, but the main purpose of this section is to give some indication of the complexity that is inherent in cabin crew operations – both for the respondent and, of course, for a claimant who had to work according to schedules issued by the respondent that may themselves be subject to disruption. It also serves to demonstrate that an “on” period – whether of 14, 21 or 28 days, is not to be taken as a period during which cabin crew are continuously at work. It also suggests that so far as the claimants rely on the “childcare disparity” as a matter of indirect sex discrimination, this is a somewhat different situation to, say, a woman who had worked only during school hours being required to work on into the evening or weekends.

[62]Exactly how scheduling worked was the subject of scheduling agreements specific to each fleet. These were underpinned by safety regulations specified by EASA. It is important to note that the claimants’ dispute is not with the new scheduling arrangements temporarily adopted or eventually agreed with their union for Heathrow Fleet. Their complaint is not with any particular element of the new scheduling agreement, but with the Heathrow Fleet scheduling agreement being “new and unknown” at the time they were asked to say whether they wished their employment to continue. Aircraft types, recency and familiarity

[63]In speaking of cabin crew, “recency” relates to a regulatory requirement for experience working on different aircraft types.

[64]Although I was not given detailed evidence about this, it appears that the respondent’s short-haul and long-haul fleet were made up of different aircraft types, possibly three each. In order to fly on a particular kind of aircraft cabin crew would need “recency” which included refresher training on that kind of aircraft each year. A requirement for recency across different aircraft types would mean that it was not possible for cabin crew to fly only one kind of aircraft for a whole year.

[65]“Familiarity” was a term sometimes used by the respondent’s witnesses to describe something more than “recency”. This seemed to be used in an informal manner to describe a degree of comfort with and awareness of a particular aircraft type and its equipment that was more than the basic regulatory standard.

[66]While “recency” was a regulatory requirement that applied equally to short-haul and long-haul flying a change to mixed flying meant recency had to be maintained across a wider range of aircraft. To some extent it operated to limit someone using bidding and swapping to continue to fly exclusively short or long-haul while supposedly doing mixed flying. The respondent suggested that it was, in fact, the only formal limit on someone continuing to fly predominantly short haul or predominantly long haul even if they had committed to (or were obliged to carry out) mixed flying. The Covid-19 pandemic, its effects on passenger aviation and the respondent generally

[67]Much of the respondent’s evidence was taken up with a narrative of the Covid19 pandemic and its effects on passenger aviation and its business, from the first hints of problems in China through to national and international lockdowns.

[68]Given the way the claimants had plead their case, and their suggestion that the respondent had used the Covid-19 pandemic as a pretext for the removal of the Legacy Fleets and their dismissal, it is hardly surprising that the respondent addressed the pandemic and its effects in considerable detail. I do not propose to recount that evidence in detail, but the fact that I do not do so should be taken as an indication that the respondent’s efforts have been misplaced. On the contrary. The fact that I do not work through the evidence in detail should be taken as an indication of the success of the respondent’s evidence on this point. Hundreds of pages of witness evidence supported by thousands of pages of documentary evidence produce a compelling account of the difficulties the respondent was facing, and while Mr Engelhardt-Sprack made various points in relation to furlough the underlying difficulties or the fact that the respondent and passenger aviation more generally were facing an unprecedented crisis were not challenged by the claimants. One or two of the calculations put forward by the respondent to show their financial difficulties were challenged by the claimants (and I will refer to them later in this decision) but most were not.

[69]Initial reports of problems in China were noted internally, with some routes to the Greater China area being affected, but this was not something that initially caused substantial concern within the respondent. The pandemic spread, affecting Italy in particular. Self-isolation restrictions were introduced. At each point forecasts were produced and estimates being made, and at every step things were worse than expected. Transatlantic passenger traffic (the respondent’s single most important area of business) practically ceased on lockdowns in the United Kingdom and the United States.

[70]The respondent was profitable and in a good financial position heading into the pandemic, but it had a high cost base that could only be supported by highvolume flying. The most immediate problem was preserving and accessing cash. Mr Philcox said that at 30 March 2020 the respondent held a remarkable £3.4bn in cash, but of that £2bn was “sales in advance of carriage” – that is, fares paid for flights not yet flown. Government restrictions and other matters meant that very few flights were actually taking place, so the respondent was daily subject to having to issue massive refunds for flights that had been paid for but which had been cancelled. An indication of the scope of this is Mr Philcox saying that during 2020 £2.4bn was refunded to passengers who had paid for flights that were cancelled.

[71]Despite there being very few flights, the respondent remained liable for fixed costs that Mr Philcox describes as including “employee salaries, pension payments, aircraft payments (i.e. finance charges and payments to lessors), maintenance costs, fees paid to airports and governments, IT licence and maintenance fees, hedging contracts, operating BA’s website, contact centres and sales efforts, delivering regulatory and recurrent training for pilots and cabin crew, and property costs, despite some buildings not being used.”

[72]The reference to “hedging contracts” is illustrative of some of the extraordinary difficulties the respondent had. It might be thought that not flying at least limited fuel costs, with fuel being one of the most obvious and significant costs in aviation, but Mr Philcox explains the effect of hedging contracts in his witness statement: “The impact of the fall in revenue was also compounded by BA’s fuel and foreign currency hedging contracts. Fuel prices fluctuate regularly, so in order to improve certainty BA (in common with many other airlines) regularly enters into contracts with commercial banks under which a hedged price is agreed for the fuel and the value of foreign currency revenues and costs against Sterling is set. BA then purchases the fuel at market prices, and separately either pays to the bank the difference between the agreed hedged price and the market price (if the market price is lower than the hedged price) or receives from the bank the difference between the agreed hedged price and market price (if the market price is higher). In effect, BA is therefore contractually committed to paying the agreed hedged price and currency exchange value, regardless of whether(1) the market price for fuel falls below or above the agreed price and

(2) BA in fact needs the fuel. In 2020, as a result of its reduced operations, BA had a significantly reduced need for fuel and fuel prices also fell during this time. However, BA was still contractually required to pay for fuel at the previously agreed price. The fuel and foreign currency hedging contracts led to a loss of £890 million for 2020.”

[73]Thus the respondent’s cash reserves were being rapidly depleted by refunds of fares and the enormous costs it was incurring even without undertaking many flights. At this point cash coming in from people booking flights would have been minimal. There remained some flying, and the respondent picked up limited work through government-sponsored repatriation flights and flying passenger planes on a cargo-only basis, but even given its substantial cash reserves the respondent faced an immediate cash flow crisis.

[74]The respondent’s witnesses give an account of what was done in order to save cash. Mr Philcox says: “… by the end of March 2020, we had already taken significant steps to reduce costs, including the following:a. A freeze on hiring, contractor layoffs, pay uplift release (i.e. a pause on pay increases);

b. Management pay cuts;

c. The Business Response Scheme, which involved offering unpaid leave and part-time reductions;

d. Suspending non-mandatory training and discretionary spending (such as small projects, non-critical maintenance and programs);

e. Cutting non-essential and non-cyber related IT spend, which meant that any IT programme not deemed essential for safety, security, regulatory requirements or to keep the very limited operation running was paused;

f. Requiring an additional approval for non-essential spending over £1,000 to try to control any non-essential expenditure;

g. Grounding surplus aircraft, which would save on maintenance expenditure albeit this was not a zero cost option as we still had to pay parking costs and conduct some limited maintenance;

h. Deferring delivery of both long haul and short haul aircraft, as capital expenditure on aircraft is a significant portion of BA’s costs. When new aircraft are acquired, payment is usually made with small milestone payments prior to delivery of the aircraft, and then a significant payment on delivery. We negotiated to defer delivery of the aircraft and therefore defer the payments due on delivery. We were able to get agreement to defer a total of USD 430 million of payments for aircraft to post-2020. It’s important to note that this does not equate to a saving because we were merely pushing out the timeframe for payment. BA was still contractually obligated to pay for the aircraft and would need to find the funds in the future to do so.

i. Renegotiating or terminating agreements with suppliers, or negotiating holidays, discounts or deferrals, and lease payment deferrals;

j. At the end of March 2020, BA also took the decision to close Gatwick short haul. It was necessary to consolidate our operations across Gatwick and LHR because BA had very limited flying and it made economic and network sense to concentrate whatever little flying we were able to do at the home base of Heathrow;

k. Deferral of tax obligations under HMRC’s tax deferral scheme. This was merely a deferral of our obligations, and the relevant tax would still ultimately need to be paid. At this time we were also seeking to claim refunds from HMRC for PAYE, national insurance and corporation tax.”

[75]Mr Pattar addresses this point in his witness statement, also identifying steps take to raise cash: “(a) Utilising the UK government's CJRS (although, this nowhere near covered the total staffing costs for those on furlough at the time); (b) Accessing £300 million from the COVID Corporate Financing Facility (with repayment required within one year); (c) Entering into new and improved financing arrangements, including, a Revolving Credit Facility and Bridge Financing Loan; (d) Seeking refunds from HMRC for ("PAYE") and National Insurance Contributions ("NICs"); (e) Accelerating the retirement of 747 aircrafts that had only very recently been refurbished and retrofitted at some significant cost in order to further save costs; (f) Renegotiating fleet delivery payments and deferring lease payments (with repayment still required within one to two years); (g) Renegotiating and terminating supplier agreements, discounts, deferrals and lease payments; (h) Introducing voluntary measures for employees such as temporary unpaid leave and part-time reductions through the Business Response Scheme; (i) Negotiating with trade unions in March 2020 on other voluntary measures prior to commencing collective consultation for redundancy on 1 May 2020; (j) Implementing management pay reductions; and (k) Reducing capital expenditure to ensure this was confined solely to essential building, fleet and IT commitments only.”

[76]The reference to “retirement of 747 aircrafts” is to the Boeing 747, at one point something of a signature aircraft for the respondent. They were removed entirely from the respondent’s fleet despite (as Mr Pattar mentions) recent costly refurbishment.

[77]Mr Philcox gives an account of attempts (ultimately successful) to raise both external and internal funding (in the latter case from IAG). In doing so he notes the downgrading of the claimant’s credit rating from “investment grade” to “junk” by the three biggest credit rating agencies in the period up to May 2020.

[78]There is no shortage of statistics to illustrate the extent of the crisis facing the respondent, but two cited by Mr Philcox may suffice: “As at 1 March 2020, the number of passengers handled by European airports was down 11.7% compared to 2019, but by 31 March 2020 that number was down 97.1% compared to 2019.” and “In terms of an airline’s capacity, this is measured based on “Available Seat Kilometres” (or “ASKs”), which is the number of seats available for sale multiplied by the kilometres travelled. It is a measure of the volume of flying. Where I refer in this statement to capacity, I am referring to ASKs. BA is part of the IAG Group and the impact of Covid-19 on capacity was felt across the IAG Group. On 16 March 2020, IAG announced that it planned to reduce capacity by at least 75% for April and May, compared with the same period in 2019. IAG then revised its position on 2 April 2020, just 17 days later, announcing that it would reduce capacity by 90% for the period.”

[79]It will be apparent that neither of those figures relates exclusively to the respondent’s operations. They are, respectively, “European airports” and “the IAG Group”, but they are illustrative of the problems that the respondent was facing. There is no suggestion that the respondent was facing exceptional problems of its own making or caused by any mismanagement. This was an industry-wide problem caused by an unprecedented global event. Furlough – the CJRS

[80]The “Coronavirus Job Retention Scheme”, “CJRS” or “furlough” became an important part of the claimants’ arguments in this case, being seen by them as a better alternative for the respondent and them than their eventual dismissal.

[81]As with much of the claimants’ case, the significance of furlough was developed during the course of the hearing, in submissions and cross-examination.

[82]It is correct to say that there have always been issues in relation to furlough, although at the time (through representations from the trade union) and in the claimants’ witness statements the significance of furlough was said to be that for an employee to engage in redundancy consultation would amount to work, and therefore be prohibited either by the furlough scheme itself or by various instructions given by the respondent in relation to furlough.

[83]The first claimant’s primary concern about furlough in her witness statement was whether she had been paid properly while employed. She questioned the relationship between what she had received on furlough, her sick pay and her eventual notice pay. She objected to the prospect of a lay-off clause in similar terms to the second claimant (see below), and says: “British Airways deliberately took advantage of their employees during great uncertainty, exploiting the fact that crew were furloughed and unable to challenge the company's plans via strike action.”

[84]In her witness statement the second claimant criticises the respondent for putting forward lay-off clauses in its eventual agreement with the trade union (the “RMA”). She says “I do not understand how adding this new layoff clause was a response to the pandemic, saving jobs and stopping cash burn. I was furloughed. Taxpayers paid for me.”

[85]Neither claimant mentioned matters which Mr Engelhardt-Sprack crossexamined the respondent’s witnesses on and made submissions about: whether the claimants could have been kept on furlough as an alternative to dismissing them, and whether this could be done at no cost to the respondent given approaches by the union about “cost neutral” furlough.

[86]In her witness statement the second claimant identifies seven matters under the heading “alternatives to dismissal”. She does refer to the costs of furlough in this list but only on the basis that “The restructuring and associated costs could have been avoided if they had implemented alternative temporary options to save money and protect employees’ jobs.” The respondent’s initial use of furlough

[87]Mr Pattar explained that in mid-March 2020 the respondent was negotiating with unions for measures including the possibility of a four-week period of unpaid leave. Furlough was announced by the government on 20 March 2020 and by 2 April 2020 the respondent had agreed terms for the operation of furlough with both the GMB and Unite. During the hearing this was called the “Memorandum of Understanding” or “MoU”. It was said to continue until 31 May 2020 although in fact continued beyond that. As the respondent emphasised, whether the government would continue to operate a furlough scheme and how long it would last for was uncertain, with extensions and other changes often being made by the government at the last minute.

[88]The MoU set out a scheme that was more generous than the government scheme. It paid 80% of basic salary and 80% of allowances (allowances being calculated in a particular way), without any salary cap. The government scheme provided for 80% of pay subject to a salary cap of £2,500 a month. Mr Pattar says: “The negotiations over the use of CJRS were challenging and the Trade Unions were adamant that employees should receive full pay with CJRS mitigating those costs. After protracted discussion we agreed that we would pay over and above the minimum, not because we could afford it but as a concession to get Trade Union agreement quickly.”

[89]So far as redundancy consultation was concerned, the MoU provided that: “BA will write to GMB and Unite the Union confirming that the collective redundancy consultation which commenced on 17 March 2020 will be paused. If BA subsequently decides to restart any future redundancy consultation period, it will notify GMB and Unite the Union and there would be a minimum of 45 days from that notice before implementation of any redundancies (should they be necessary).” The cost to the respondent of furlough

[90]In his witness statement, Mr Philcox says: “BA's employee costs in 2019 were £2,529 million (approximately £211 million per month), and the total amount received by BA under the CJRS for April 2020 was £35 million ... The CJRS support therefore amounted to 17% of BA's average monthly wage bill, and less than two days of cash given BA's rate of average cash burn around that time.”

[91]Mr Engelhardt-Sprack correctly points out that there are some difficulties with these figures. Presumably even if there had been no Covid-19 pandemic the respondent’s employee costs for 2020 would not have been identical to those for 2019. They would have been different to some degree. Also, comparing total employee costs against amounts received from furlough would not take account of those employees who remained fully employed and were not on furlough (suggested by Mr Engelhardt-Sprack and accepted by the respondent to include members of senior management, the most highly paid individuals within the company).

[92]Therefore it would not be correct to say that furlough receipts only covered 17% of the costs of furloughed employees. However, it is clear that particularly for Euro Fleet and Worldwide Fleet the furloughed employees would still be costing the respondent a considerable amount of money. The government reimbursement cap of £2,500 a month would mean an annual salary of 12 x £2,500 x 100/80 = £37,500. This compares with average earnings in Euro Fleet of £49,400 and average earnings in Worldwide Fleet of £64,600. In his closing submissions Mr Engelhardt-Sprack calculated the difference that the respondent would have to pay compared to what it would receive for furloughed cabin crew on Euro Fleet and Worldwide Fleet to be around £10m a month Furlough for the claimants

[93]Furlough came into operation on 4 April 2020 for the vast majority of cabin crew. The second claimant was furloughed from this point, although the first claimant (who was off sick at the time) was not furloughed until 1 May 2020. Redundancies and reorganisation plans

[94]During the initial weeks of the pandemic it is clear that the respondent’s major imperative was to limit cash outflow and gain sufficient cash (by way of investment or loans) to secure its short-term future. Although there are no neat dividing lines, it appears that through many of the measures I have already addressed that was done, with the question then becoming less the respondent’s survival from week to week and more what might need to be done to secure its future in the hope of an end to the pandemic (or pandemic restrictions) and a recovery in passenger aviation. It is in the context that the proposals for redundancies and reorganisation were developed.

[95]The MoU came about in the course of discussions with the trade unions at which the prospect of redundancies had been raised. The MoU says “For the avoidance of doubt, the above measures are wholly designed to mitigate as many redundancies as possible during the Furlough Period.”

[96]Mr Pattar points out in his evidence that the MoU also provides that: “The entire Programme is contingent [on] BA being satisfied that this Programme does not impede its ability to implement further proactive measures to secure its business and protect the long-term security of its employees.”

[97]He says: “When the CJRS was initially introduced, it was announced that it would only be in place for a few months until lockdown and travel restrictions had eased in the UK. Indeed, it was uncertain how long the Government would continue the scheme. Retaining individuals on furlough was, therefore, intended to be a short-term initiative; it was not cost neutral for BA and, despite the support of the CJRS, BA was still suffering unprecedented financial losses. Given the limited impact and uncertainty around CJRS, the continued and potentially long term impact of the pandemic, and the lack of a credible vaccine, we had to make a difficult decision as to whether headcount reductions were necessary based on the much-reduced flying schedule.”

[98]Mr Pattar refers to discussion of cutbacks at a management committee meeting on 11 March 2020. This was a couple of weeks before the UK national lockdown, but at that time the respondent was looking at reducing its Heathrow schedule by 25-30%.

[99]I have cited above from Mr Pattar’s witness statement his identification of cash conservation measures. His statement continues from that point: “while these were all important measures to reduce out cash outgoings in the short term, many of these were short term savings, and the underlying costs would in many cases return, or increase (for example deferred payments and borrowings would ultimately be due, and loans would require servicing). The BA [management committee] therefore had to act quickly to restructure the business; ensuring the survival of BA was imperative.” Initial proposals

[100]Mr Pattar says, “BA first notified Unite about the potential for redundancies as a result of the developing Covid-19 crisis on 16 March 2020.” This was prior to the MoU. On that date the respondent submitted its first statutory HR1 form indicating potential redundancies. The numbers were in every case described as “TBA”.

[101]Following the MoU, the respondent held a further management committee meeting on 9 April 2020 at which: “… three options were under discussion. The first was compulsory redundancies effective 1 June. The tight time frame reflected how much of a serious situation this was for the business. The second was to initiate compulsory redundancies but with a new voluntary redundancy programme and sustainable change and efficiencies for the business going forward. The third was effectively option 2 but pivoting back to compulsory redundancies if effective change and efficiencies were not achieved.”

[102]However, Mr Pattar says: “I did not agree with the approach … suggested and it formed no part of the proposals put together between the BA [management committee] meeting on 15 April and communicated to the trade unions by way of the s188 letter on 28 April 2020. We were always clear in our meetings that meaningful consultation with the trade unions was essential, and this is demonstrated by the fact that we consulted for several months, eventually completing a comprehensive package of efficiencies and cost savings – across the entirety of BA's business – with agreement with the relevant unions. We sought to initiate consultation with Unite as soon as possible, as shown by our repeat invitations to do so. Following the meeting on 15 April, we conducted a series of analyses to evaluate a number of proposals and the potential impact on both BA and colleagues. We held a BA board meeting on the 17 April 2020, and whilst I wasn’t in attendance, I'm aware from the board minutes that the meeting was primarily focused on discussing the financial impact of the pandemic on BA and the various actions we had taken to preserve cash. I understand that BA MC met on the same day; this was the meeting where the initial proposals for IFCE were first presented to the Committee in high-level terms. Whilst I didn't attend this meeting, I did have sight of the presentation prepared afterwards, for review in advance of the next meeting. My colleague Amy James discusses the work conducted within IFCE to prepare these proposals in her witness statement. In summary, the proposals prepared for IFCE and presented to the BA MC were as follows:(a) Create a new Heathrow Cabin Crew fleet to replace the existing three-fleet structure with a new single supervisory structure, one set of scheduling principles, market driven pay and a common allowance structure;

(b) Place 8,219 colleagues in EF and WW at risk of redundancy, alongside 855 Customer Service Managers within MF; and

(c) Identify redeployment opportunities for 4,000 headcount equivalents, meaning there would be a total of 2,400 headcount equivalent (3,000) redundancies (which amounted to 20% of the cabin crew population). The cost savings presented to the BA MC as a result of these proposals showed that BA could save approximately £157m each year if we transitioned to market driven pay with an additional £5-8m yearly on the move to one fleet. The estimated cost of carrying out the restructure was estimated to be £220m with long-term savings estimated at £175m (2020), £580m (2021) and £600m (2022). These were the savings envisaged by right-sizing the business by making the structural changes required. The reference to payback within 6 months refers to how long it would take for the one-off cost associated with the restructuring (£220m) to be recouped by the savings generated by the restructure. In a situation where a restructuring involves a significant implementation cost, it is important to understand the expected point in time when the savings would outweigh the one-off implementation cost. It was not an indication that within 6 months BA would, once again, be profitable; that would take much longer. Rather, these were just predicted cost savings which had been presented to Management to aid the decision-making process for the business.”

[103]This was the first version of the proposals that eventually came to be implemented. Updated proposals were discussed internally by the respondent through to 24 April 2020. On 28 April 2020 the respondent issued a formal collective consultation notification under s188 to Unite and submitted an updated HR1 form showing 4,700 redundancies out of 14,262 cabin crew employees. Cabin crew were the largest single group of employees employed by the respondent.

[104]The notification to Unite included the following: “Structural changes - Our Heathrow based cabin crew community consists of three fleets, all of which operate to different arrangements, with Eurofleet and Worldwide dedicated to short-haul and long-haul flying respectively and Mixed Fleet operating both long-haul and shorthaul flying. Mixed Fleet work to scheduling arrangements that allow some flexibility to meet the needs of the operation, whilst both Eurofleet and Worldwide operate to more complex and less flexible scheduling arrangements. The overall cost, productivity and versatility of these working arrangements are significantly more complex than they should be if we are to confront the challenges we have and to compete effectively. The existence of three fleets also creates administrative, planning and rostering complexity, which adds further cost and inconsistency. We currently have 6382 Worldwide crew members of which:• 531 are CSDs

• 1,060 are CSLs

• 4,791 are Main Crew We currently have 1853 Eurofleet crew members of which:

• 11 are CSDs

• 466 are Pursers

• 1376 are Main Crew We currently have 6027 Mixed Fleet crew members of which:

• 852 are CSMs

• 5,175 are Cabin Crew We are proposing to remove the existing fleet structure and create a simple, single group of cabin crew, with a single set of terms and conditions and operating to higher levels of flexibility. Those terms will include temporary layoff or short-time arrangements and a harmonised pay and allowance structure. We are proposing that any new contracts would have new policies including on disciplinary and grievance procedures, performance and absence management which would be non-contractual. We are also proposing some changes to the Redeployment Agreement ... The single group of cabin crew would undertake both long-haul and short-haul flying to a flexible scheduling arrangement and at a competitive cost base. The internal organisation structure of this division would have a simplified supervisory structure rather than the current varying arrangements across three fleets. If we are unable to reach agreement on these proposals as part of the consultation process (and we were unable to implement these proposals by relying on the reasonable changes clause in an employee's contract) then we would propose to give all employees notice of dismissal by reason of redundancy and/or some other substantial reason, and offer a proportion of them employment under new terms and conditions (see below). To be clear, everyone who is employed in the Worldwide, Eurofleet and Mixed Fleet teams is impacted by this proposal. The numbers and categories of such employees are set out above. Headcount reduction - In addition to the structural changes described above, we are proposing the following headcount reductions:

• Non-supervisory roles - As set out above, across Worldwide, Eurofleet and Mixed Fleet there are currently 12,402 employees carrying out non-supervisory functions. We are proposing to reduce this number by 3,811.

• Supervisory roles - As set out above, across Worldwide, Eurofleet and Mixed Fleet there are currently 1,860 employees carrying out supervisory functions. We are proposing to reduce this number by 889. We will consult with you regarding the process for implementing the headcount reduction, but in principle we would propose to put all employees at risk of redundancy (or at risk of dismissal due to some other substantial reason) and determine who to offer a role in the new structure based on factors such as operational needs, skills and performance.” Information and consultation from 28 April 2020 to trade union attendance on 15 July

[105]With the respondent having served the s188 notice, following day (29 April) Amy James sent an email to cabin crew with the subject “The Future of BA Cabin Crew”. This identified the respondent’s proposals as including: “• closing our three fleets; creating a single new cabin crew team at Heathrow,• operational flexibility, with all crew flying both short- and longhaul, and

• a new, simplified onboard supervisory structure.” and “Our priority now is to consult with your trade unions to explore ways in which we can avoid or reduce job losses where possible. My team and I will be meeting intensively with your TU representatives over the coming days and weeks, and we’ll be working hard to consider all possible options for you and our business.”

[106]On 30 April 2020 Howard Beckett of Unite’s legal department acknowledged the notice under s188 (which seems to have also been accompanied by other notices in respect of non-Heathrow staff) saying, amongst other things, “In the current circumstances of the COVID crisis, and the circumstances of BA’s workforce, it is impossible to envisage how consultation satisfying the requirements of section 188 Trade union and Labour Relations Act 1992 (‘TULRCA’) can take place.”

[107]The union’s view was that consultation during furlough was “an abuse of the Coronavirus Job Retention Scheme” and “immoral”. The union pointed out possible practical issues with consultation while the staff concerned were on furlough, and concluded: “In those circumstances, Unite is now entitled to bring proceedings in the Employment Tribunal for a protective award for all workers employed by BA. That protective award would provide for payment of up to 13 weeks’ pay per affected employee in respect of whom the protective award is ultimately made.”

[108]As far as I am aware no such proceedings were brought.

[109]The second claimant says she saw this letter around the time it was sent by her union.

[110]The respondent replied the following day, emphasising its commitment to consultation and, on the question of whether consultation can be carried out during furlough, it said: “It is incorrect to describe the announcement of BA's proposals and the commencement of the consultation process as an abuse of the Coronavirus Job Retention Scheme (the "CJRS"). The CJRS does not prevent or restrict an employer from commencing or conducting a redundancy exercise and our actions in starting the consultation process are consistent with the CJRS and the guidance around it. As you will be aware, the employee guidance on the CJRS contemplates that redundancies may take place during periods of furlough. The guidance states that "Your employer can still make you redundant while you're on furlough". Any proposed redundancies would obviously necessitate consultation during furlough, and the CJRS makes clear that normal employment laws continue during any periods of furlough, which would include the obligation to collectively consult and to not dismiss unfairly. In addition to this, the latest version of the employer guidance on the CJRS states that "Whilst on furlough, employees who are union or nonunion representatives may undertake duties and activities for the purpose of individual or collective representation of employees or other workers". This clearly envisages the possibility that collective redundancy consultation can take place during furlough. Further, the MOU entered into between BA, Unite and the GMB anticipates that the need for further redundancies and consultation may arise despite the furlough arrangements. We had also at the time of agreement of the MOU agreed to not furlough a number of TU representatives who you identified were required to support furloughed members.”

[111]Also on 1 May 2020 the first claimant commenced furlough, and Amy James hosted the first of a number of video updates to cabin crew. She said in the invitation email that “your attendance is not inconsistent with the terms of the [MoU]”.

[112]There followed an impasse during with the union refused to engage in collective consultation offered by the respondent. There continued to be correspondence between the respondent and the union at various levels, but nothing that amounted to collective consultation.

[113]This led to a peculiarly one-sided consultation period. Amy James says: “We started consultation meetings on 1 May 2020 and scheduled a total of 33 meetings between this date and 7 August 2020, being the date on which selection outcomes were delivered to crew. Unite was invited to each of these meetings, but did not attend the collective consultation meetings until 15 July 2020. By that time we had held 22 meetings and so the meetings held prior to this date were attended by IFCE management representatives alone ... Although we invited Unite to every meeting, and very much tried to consult with them about our proposals, as they did not attend the meetings we had to effectively do the consultation ourselves. Our approach to the meetings once it became clear Unite was not going to attend any time soon was therefore to discuss our proposals amongst ourselves, consider feedback received from colleagues (which was delivered via the various communication channels we had established, as well as directly to our personal business email accounts), and to challenge ourselves on our proposals, for example, by trying to put ourselves in Unite’s position (i.e. consider what we believed Unite would ask of us based on our previous experience). I accept that the process might appear somewhat artificial, but given Unite’s position, we had little alternative and had to do the best that we could in the circumstances. Without Unite’s involvement, there seemed to be little alternative but to try to ‘stress test’ the proposals as best we could using feedback we were receiving directly, and our own judgment of the concerns and issues we would expect Unite to raise, based on past experience. Prior to each meeting, in addition to inviting Unite, we would prepare an agenda setting out the topics we wished to discuss, and would prepare a detailed presentation setting out the information we wished to discuss at the meeting … along with updates on financials and from the industry ... Following the meetings, which were generally minuted from 27 May 2020 onwards, the presentations and minutes would be shared with Unite ... We felt that through this approach, we could sensibly consult on our proposals as best as possible in Unite’s absence, whilst also keeping Unite and colleagues updated on our progress. That being said, it was a very unusual situation to be in and it remained a matter of frustration for me that Unite did not engage in the consultation, as I would have valued their input on the important changes we were proposing to make.”

[114]There is no doubt that this one-sided consultation proceeded as described by Amy James, alongside emails from her updating members of cabin crew on progress.

[115]I had been interested to see what questions would be asked of Amy James about this by the claimants and what points they would wish to make about this. As has already been discussed, the claimants in their witness evidence did not disguise their contempt for the respondent’s decision and its conduct, so I was interested to see how they would approach this attempt at collective consultation.

[116]It remained the claimants’ case at least to some extent at the end that consultation and furlough were mutually inconsistent, but there was no suggestion that this attempted collective consultation was done in bad faith or was not what it appeared to be. It is a notable feature of this case that in spite of the lack of (at this point) any cooperation from the trade union the respondent proceeded with attempts at collective consultation, and not only that, the onesided consultation seemed to produce variations to their proposals that would be likely to be seen as more favourable by the employees, such as the introduction of the possibility of voluntary redundancy with internal calculations to back it up. An offer of voluntary redundancy was made with initial expressions of interest to be provide by employees in the period 18-27 June 2020. 589 members of staff (all from the Legacy Crews) put themselves forward for voluntary redundancy, with an intended leaving date of 31 July 2020.

[117]Another remarkable development, likely to be in favour of the employees, that emerged during this one-sided consultation was the possibility of pay protection for those in the Legacy Fleets who would lose out on a change to Heathrow Fleet (at that point intended to be protected at 80% of “old salary”).

[118]Many pages of Amy James’s witness statement are taken up with her account of proposals made, discussed and varied during this one-sided collective consultation process, sometimes raising and taking into account individual representations that were made by employees.

[119]One reason why the claimants questions on this point would have been particularly significant is that taken at face value this appears to be an impressive attempt by the respondent in the face of non-cooperation by the union to thoroughly consider and, where it could, mitigate the effect of proposals it was making. In the absence of any challenge to that by the claimants I conclude that it is what it appears to be. It is an impressive attempt by the respondent in the face of non-cooperation by the union to thoroughly consider and, where it could, mitigate the effect of the proposals it was making.

[120]Amy James says the following: “Following 22 collective consultation meetings … - we carefully examined and challenged our proposals, by 6 July 2020, we had reached a point where we felt we needed to press ahead with moving to the individual consultation/selection phase. BA still remained in a hugely uncertain position, with BA’s operating loss for the three months between April to June 2020 alone being £1.13 billion. The outlook for the remainder of the year also looked bleak, with travel restrictions in the US (our largest market) remaining in place with no projections for when these would be lifted and we still had the requirement in the UK for travellers to quarantine for 14 days on arrival. I considered that the proposals were fair and necessary, and while I was not fully across the detail of the proposals for other parts of the business, l was aware that cost saving measures were being proposed for all areas, alongside some of the other measures I have already mentioned such as management pay cuts. By this time, on 22 June 2020, we had revised our HR1 Form to reflect that we believed we were unlikely to reach agreement with Unite (due to their lack of attendance) around our proposals, and were therefore likely to need to move ahead with implementing the proposals via a dismissal and re-engagement process for colleagues who would be remaining with BA. The total number of redundancies proposed at this stage reflected that we did not envisage needing to dismiss and re-engage all remaining colleagues. This was because we believed that the proposed changes for colleagues engaged as cabin crew within Mixed Fleet who were selected for a role within the new fleet could be implemented via our contractual right to make ‘reasonable changes’ within these colleagues’ contracts of employment. We did not have the same contractual entitlement within the contracts of Eurofleet and Worldwide colleagues, and in any event, we appreciated that the changes likely went beyond ‘reasonable’ changes such that a clause of this type could be relied upon, given the proposed significant changes to terms and conditions for these colleagues (such as the move to mixed flying and reductions in basic pay). This decision was not taken lightly, and prior to taking this decision, we had suggested an agenda to Unite under which we could expedite further consultation over a 14-day period in order to try to reach an agreement prior to submitting a revised HR1 and launching the individual consultation/selection phase. This agenda was set out in the slides prepared for our consultation meeting on 18/19 June 2020, however, Unite did not engage with this.”

[121]Mrs James says that the individual consultation process started on 6 July 2020. She sent an email to cabin crew saying “We will shortly move into the Individual Consultation phase. Whilst collective consultation remains open, we will shortly move into the individual consultation phase, meaning we will be inviting colleagues to meet with us individually to discuss our proposed changes and how they impact you as we prepare for a different future.” This was accompanied by a link to “Heathrow Cabin Crew: Our Future”. This document became known as the “blue book” and was the first detailed description of the proposed new fleet. Some of the proposals in the blue book changed following further consultation, but importantly for this case two matters that did not change were a requirement under the new contract for mixed flying (“all crew will fly a mixture of long-haul and short-haul routes”) and for part-time contracts to operate to an “on” block of 21 days. The minimum part-time working pattern proposed in the blue book was a 50% contract operating 21/21. The 33% contract was to be abolished. The blue book contained sample rosters showing how it was thought any new scheduling arrangements may work.

[122]The email also said: “In the coming days, you will also receive a Personal Options Statement via email which will provide confidential, personalised information bespoke to your individual circumstances, along with the options available to you in the event our proposals are implemented. It will also contain links to preferencing forms and a timeline with all key dates and deadlines. All colleagues will be offered a confidential one-to-one individual consultation meeting with a member of the management team. One-toOnes will be held via video or audio call and your Personal Options Statement will include instructions on how you can book a meeting at an available time that suits you.”

[123]The first claimant describes the blue book and this email in the following way: “The Blue Book contract crew received on 15 July 2020 was a deliberate attempt at frightening and manipulating older employees into complying with their fire and rehire plans through fear of losing their jobs. Deadlines given to accept the new contract were short and without knowing what the terms and conditions were, it was difficult to make any informed decision about my future.”

[124]I am not sure why she is saying at this stage that deadlines for accepting the new contract were short. At this point the relevant question seemed to be whether people wished to take voluntary redundancy or not. The blue book then envisaged redundancy selection amongst those who had not opted for voluntary redundancy.

[125]The second claimant had this to say about her views on receipt of the blue book proposals: “The letter stated that it required me to make an informed choice about my future. I could opt for voluntary redundancy or be considered for a role through the selection process and stay. It was headed “Individual consultation: Making informed choices”. This contained “Your personal options statement”. 50% contract is acknowledged, and the new equivalent contract is Lifestyle 21/21. However, it informed me that if I would like to reduce my hours by preferencing for a part-time contract, there was no contract I could reduce to as 33% would no longer be available. The typical basic pay quoted was full-time equivalent and the examples which were indicative and not specific to my own personal salary. If I were unsuccessful in a new role, I would face redundancy on less favourable terms than if I were to take voluntary redundancy. The termination date was set at 31 August 2020 if I chose to leave. The terms for the new role included a significant 20% cut to my base pay, losing meal allowances and Contractual Flying Pay (which included holiday pay), less time off at home (2 days off after Stateside instead of 3 days off) and at destinations, more types of standby duties, increased workloads during part-time working block, less annual leave, loss of seniority, unspecified lay off period at the Respondent’s discretion, no Line Trainer pay, no Scheduling Agreement, no stability and less flexibility for me, working outside the cabin crew role at the airport, my working pattern changing from 28 days on/28 days off to 21 days on/21 days off, and using existing Mixed fleet policies.”

[126]Further correspondence from the respondent offered individual consultation meetings with affected employees. Amy James says: “I understand that none of the Claimants took up the option to attend an individual consultation meeting. However many of their colleagues did. For example, by 22 July 2020, a total of 1,951 colleagues had booked an individual consultation meeting (62 colleagues from Eurofleet, 163 from Worldwide Fleet and 1,782 from Mixed Fleet). We had also received 243 acceptances for voluntary redundancy.” Trade union involvement from 15 July 2020

[127]On 15 July 2020 Unite attended their first collective consultation meeting with the respondent, albeit on a limited basis. Amy James says that there were 11 collective consultation meetings with Unite from 15 July to 6 August 2020. On 15 July 2020 voluntary redundancy had been offered to Mixed Fleet employees as well as the previous offer to Legacy Fleet.

[128]Many cabin crew remained on furlough at this point, and it is not clear whether the union’s engagement represented a change in its view that consultation could not take place during periods of furlough or whether the union had taken a pragmatic view that it should now engage notwithstanding its objections to consultation during furlough.

[129]On 24 July 2020 Len McCluskey of Unite wrote to the respondent’s chief executive and included the following in his letter: “Your previous correspondence asked me to consider the financial position of British Airways and in this regard we have made positive and cost neutral proposals to allow you to fully utilise both the extended Job Retention Scheme, alongside the six measures previously agreed in principle between us. These proposals will be to the benefit of all affected employees and ensure that discussions and negotiations can continue in good faith over any proposed future restructuring.”

[130]It is not clear to me what those proposals were. Mr Pattar gave evidence that they had costed the union’s proposals and they were not cost neutral. While not necessarily challenging this Mr Engelhardt-Sprack cross-examined Mr Pattar on the basis that this apparent acceptance by the trade union that a “cost neutral” furlough arrangement could be reached allowed the respondent to come back with proposals that it considered to fit the “cost neutral” criteria that the union had apparently conceded. Mr Pattar gave evidence in reply on that and I will consider that at the appropriate stage of my discussion and conclusions.

[131]On 25 July 2020 the first claimant wrote in emotive terms to the respondent’s CEO. Her difficulties were amplified by the fact that both she and her partner worked for the respondent. Her partner was not cabin crew but worked on the ground on a shift pattern. It appears that his job was under threat too, and that is a reminder to note that while I am focussing on cabin crew, similar redundancy discussions were occurring throughout the respondent’s business, though the particular terms of the discussions varied considerably given the different working practices and different union involvement (where there were recognised unions, as there often were). Primarily in this email the claimant is expressing the difficulties that may affect her family given the threat to the jobs of her and her partner, and contrasting that with the loyal service both she and he had given to the respondent. There is nothing in the email that raises her later concerns about mixed flying and her shift pattern. Mrs James replied to this email on 5 August 2020.

[132]As with the earlier one-sided consultation, Mrs James’s statement gives a detailed account of the consultation meetings actually attended by Unite, which were initially confined (at Unite’s insistence) to redundancy mitigation or limiting compulsory redundancies. By 29 July 2020 the numbers opting for voluntary redundancy were 212 in Worldwide Fleet, 70 in Euro Fleet and 239 in Mixed Fleet. The deadline for acceptance of voluntary redundancy was extended to 3 August 2020. By 3 August 2020 there had been an enormous increase in those opting for voluntary redundancy, giving a total figure of 4,226 having opted for voluntary redundancy, albeit it appeared that this left the crew hierarchy unbalanced, so there may remain some requirement for compulsory redundancies. The union still remained unwilling to discuss the terms of any new contracts for those members of staff who were to continue in the new Heathrow Fleet. Mrs James says “we had managed to mitigate the vast majority of compulsory redundancies as a result of the uptake of voluntary redundancy”.

[133]Neither claimant applied for voluntary redundancy nor takes issue with any matter arising out of the voluntary redundancy terms.

[134]Mrs James says that 4,200 members of cabin crew left on enhanced voluntary redundancy terms, and a further 20 left on a voluntary basis but without enhanced redundancy, apparently because they were unwilling to agree to the settlement agreement that the respondent required employees to sign to obtain enhanced voluntary redundancy. Voluntary redundancies took effect either at the end of July or the end of August 2020.

[135]There followed a substantially reduced compulsory redundancy selection exercise, focussed more on achieving the appropriate hierarchy ratios of cabin crew rather than absolute numbers of cabin crew. Those who were offered a new role in the redundancy selection exercise had to complete a form to signify their acceptance of the role, along with some other matters that formed part of the “Redundancy Mitigation Scheme” such as a period of unpaid leave. The offer letter specifically provided that “as we are not in a position to issue you with your new contract at this sage, we are asking you to let us know if you intend to accept the new role once formally offered”. This letter was provided to all who had not been selected for redundancy, and also operated as notice of dismissal from their former role. The letters for both claimants are dated 7 August 2020 and are identical subject to minor individual differences. This is the first claimant’s: “As you have been successfully selected into Cabin Crew role, we do need to serve notice on your current role. This letter therefore also constitutes formal notice of the termination of your existing role. Your notice period will commence as of the date of this email and your current role and existing terms and conditions of employment will terminate on 31 October 2020 (the ‘Termination Date’). Your formal offer and new contract of employment will be provided before the Termination Date and your new role and new terms will take effect from that date. Your period of continuous service will not be impacted as a result of this change and will therefore continue.”

[136]So this was the “fire” part of any “fire and rehire” process. Both claimants were given notice of dismissal, with “rehire” on new terms and conditions to be notified to them before the Termination Date. Events after the issuing of notice

[137]Neither claimant raised any issue concerning the compulsory redundancy process, although the second claimant says that “On 16 August 2020, I emailed Amy James … saying that accepting the new contract without knowing the terms and conditions was impossible. I said I had taken legal advice, and if my employment were terminated without proper consultation, whether individual or collective, this would be an unfair dismissal.”

[138]To some extent this foreshadowed the approach she adopted in September 2020, but nothing depends on that at this stage. 139. 131 members of cabin crew were made compulsorily redundancy and 458 were offered a more junior position. These were spread throughout the fleets.

[140]On completion of that exercise the respondent knew, in principle, which members of staff would be continuing with it, but the precise terms on which they would be employed remained subject to discuss with the trade union. As Mrs James says, “In the background, discussions with Unite continued.”

[141]While there have been times when the claimants have been as critical of their trade union as they have been of the respondent, it does seem as though at this point they continued to have confidence in the union. Notably the first claimant had not put herself forward for voluntary redundancy even though her 33% contract was due to be abolished according to the blue book, which provided for a minimum contract level of 50%. In cross-examination she said that she had continued because she was confident that the union would be able to ensure continuation of the 33% contract (which it later did).

[142]Further steps were taken pursuant to the Redundancy Mitigation Scheme, including offering an extended period of unpaid leave, a move to part time work (either temporarily or permanently) and/or a voluntary demotion. A small number of people took up one or more of those options.

[143]Pausing there, although underlying all of this is the matter the claimants fundamentally object to: abolition of the Legacy Fleets, it has the appearance of an employer doing everything possible to assist employees in difficult circumstances. The union have come to the table very late, but nonetheless the employer has engaged with them and undergone a period of very intensive consultation. Adjustments have been made to the redundancy program, ultimately with considerable success in avoiding compulsory redundancies. Exactly what the new terms and conditions were to be remained outstanding, but that was a matter the union explicitly ruled out of any consultation. It is apparent that several of the consultation meetings with the union had been very difficult, and both the union and the respondent were making use of multiple channels to try and make progress, with discussions sometimes taking place outside the framework of formal consultation meetings.

[144]On 13 August 2020 there was the first sign that the union may be willing to consult on the scope of the new contracts, with one of the union representatives sending to Mrs James a “Concept” or “Discussion” document concerning “Agreed contractual variance agreement”. This proposed voluntary agreement on whether an individual would fly long-haul only, short-haul only or mixed flying, alongside some changes to terms and conditions.

[145]While this was far from what the respondent wanted, it seemed to open up discussions. Mrs James explains that a final breakthrough with the union was made when she and a colleague visited the union representative and his colleague while the union representative was on holiday in Wales on 27 August 2020. This meeting gave rise to what became known as the “Redundancy Mitigation Agreement” or RMA.

[146]The claimants have, at times, been highly suspicious of the Redundancy Mitigation Agreement and how it came about. Much was made at earlier stages in these proceedings about the absence of any notes of the meeting in Wales. The claimants continued to question in this hearing why the eventual final draft of the RMA was not signed. As with much of the claimants’ general criticism of the respondent’s behaviour this was not explored in any detail during this hearing, and was not mentioned in Mr Engelhardt-Sprack’s closing submissions. This is another instance of what had originally been structured as a very broad attack on the respondent and its motives for dismissing the claimants becomming during the course of this hearing more about points of detail focussed around the last few days of the claimants’ employment.

[147]Mrs James says: “The final version of the Redundancy Mitigation Agreement as at 27 August 2020 reflected the move to one fleet with mixed flying, and included measures such as:a. the introduction of a layoff clause;

b. confirmation around the requirement for colleagues to take a period of 3 weeks’ unpaid leave period during Winter ‘20;

c. additional pay protection mechanisms;

d. the approach to allowances, which would include the introduction of subsistence rates;

e. the provision of annual leave at colleagues’ existing entitlement;

f. the option to opt for part-time contracts including Lifestyle 21/7 (75%); Lifestyle 21/21 (50%), and the reintroduction of a 33% contract (21/42) for colleagues already on this working pattern;

g. a commitment from both parties between date of the agreement and 31 October 2020 to work jointly to create a new Heathrow Cabin Crew Roster;

h. the provision of trial periods and a transition period (such that colleagues could request - based on their individual circumstances - to delay the training required to allow them to carry out mixed flying). This was by no means a final version of the agreement, however, I hoped that with further discussions over the coming days, we would be able to reach a final position.”

[148]As with instances during the one-sided consultation, I see in this a willingness on the part of the respondent to compromise and look for constructive solutions that does not fit with the claimants’ narrative of a simple attempt to “slash and burn” their terms and conditions under cover of the Covid-19 pandemic. Notable developments at this time include the possibility of a 33% contract (anticipated by the first claimant but not previously conceded by the respondent) and the idea of trial periods or a transitional period. By this point there was also discussion of pay protection at 85% rather than the previously proposed 80%. (As will be seen below, while a 33% contract and 85% pay protection were under discussion they were not formally offered to employees until a later stage.)

[149]This was seen as something of a breakthrough, but negotiations continued on the detail of the RMA. On 2 September 2020 Mrs James sent an email to cabin crew saying: “Over this past weekend, we said goodbye to colleagues who decided to leave British Airways under the voluntary redundancy programme. I know among them were many crew members whom you have worked alongside over the years and who have become like family to you. It has been difficult to bid them farewell under such challenging circumstances as they explore new paths outside our airline. For those of us remaining with British Airways, our focus now turns to our future and work is well underway to move to our new single cabin crew team later this year. We continue to meet with your trade union representatives to discuss future ways of working and terms and conditions. While we finalise the details, I wanted to let you know that we will be sending out your new contracts later this week. Your new contracts contain the specific terms and conditions aligned to our future single cabin crew team at Heathrow, the foundations of which are outlined in the ‘Our Future’ colleague information pack we sent you in July [the blue book].”

[150]So by that point Mrs James was confident enough to say that she was “finalising details” and that “we will be sending out your new contracts later this week”.

[151]Under the heading “new working arrangements” Mrs James said: “Pay & Reward - A market-leading reward package - Basic pay protection for Worldwide and Eurofleet cabin crew - New simplified, tax-efficient subsistence allowance structure which removes the need for retaining receipts - Quarterly financial incentives for great performance Rosters - All crew will fly a mixture of long-haul and short-haul routes Time off - 35 days’ paid annual leave Flexible working - Flexible working options, including part-time and full-time contracts - Part-time contract options include Lifestyle 21/7 (21 days on, 7 days off) and Lifestyle 21/21 (21 days on, 21 days off)”

[152]I don’t think any of that was new, and much of it had been signalled since July.

[153]Under “Next steps – PLEASE NOTE”, Mrs James said: “When you receive your new contract, you will need to sign it electronically and return it. Full details will be provided in the email you receive in the next few days. If you do not sign and return your contract by 19 September, we will take this as confirmation that you wish to leave the airline on the grounds of redundancy, which will happen on statutory terms.”

[154]So at this point cabin crew would have expected to receive their new contracts in the next few days, and that those contracts would require mixed flying and (for those working part-time) 21/7 or 21/21 shift patterns. They would know that they were expected “sign and return [the] contract by 19 September” and that if this was not done “we will take this as confirmation that you wish to leave the airline on the grounds of redundancy, which will happen on statutory terms”.

[155]Two days later, on 4 September 2020, Amy James sent an email to cabin crew with the heading “Terms and conditions for your new role”. This said “I can now share with you the terms and conditions for your new role. The contract will be sent in a separate email shortly. This email sets out the terms on which your contract is offered and together with the contract sets out all the terms relating to your employment. We continue to discuss and consult over other working practices with the Trade Union. These issues are more complex and will take some additional time, but we will provide you with an update as soon as we can.”

[156]Similarly to the previous email, this set out a requirement to accept the new terms and conditions by 19 September 2020.

[157]As well as the points previously made, this email set out a “trial period” of four weeks. It says: “This four-week trial period will commence when your new terms and conditions take effect, unless you are furloughed at that time, in which case it will commence when you cease to be furloughed or return from this period of leave.” Pay protection is described as being “a minimum of 80% of your current basic salary.” Instructions are given on how to accept the new employment contract, expected to be provided “shortly”. The email says “If you do not take action to accept the new terms and conditions by 19 September 2020, we will assume that you do not wish to accept the terms being offered and have decided that you would prefer to leave British Airways.”

[158]The second claimant describes receiving this communication. Both claimants make something of not receiving sufficient notice of the later requirement to accept their new terms and conditions, but as referred to earlier the headline terms later offered would have come as no surprise to them and in some ways were better than they may have been expecting. They give no indication in their witness statements as to what consideration they gave to these terms or the extent to which they could comply with them at this stage (or earlier).

[159]Mrs James says: “Although our conversations with BASSA around reaching an agreement on our proposals were ongoing at this stage, and I was very hopeful that we would be able to reach an agreement within the coming days, there was no guarantee that we would do so. Ultimately, a decision was taken by BA’s management team that contracts should be issued to colleagues on 4 September 2020 across many of BA’s line areas. By this stage, nearly a month had passed since we had issued outcome letters (including notice) to colleagues, and it was important that they were given the full set of terms and conditions sitting alongside our proposals and sufficient time to consider them in the event we did need to move ahead with our proposals without Union agreement. It was made clear to colleagues that discussions with Unite remained ongoing.”

[160]Mrs James says: “We ultimately reached an agreement with BASSA on 9 September 2020 as to the terms of the Redundancy Mitigation Agreement.”

[161]She refers to an announcement sent by the union to its members that day, in the following terms: “After weeks of extremely difficult negotiations, we have been able to find an alternative to “Fire and rehire", by securing an agreement in principle with IFCE to avoid this. We cannot pretend that this has been easy, and despite a huge Unite publicity campaign, British Airways has already issued new contracts and termination dates. This would have seen members either forced to sign a new contract by 19th September or lose their job. Against this backdrop, we have done our absolute best to secure, under the most difficult circumstances imaginable and having been dealt the worst possible hand, an alternative future to the one contained in your "new contract" and the IFCE blue book. There will be changes, there will be cuts, but there will also be security and certainty, where previously there was none. The work we have done in reaching this agreement is to save the jobs of those that have chosen to stay and to do our best to make it a job still worth having. This agreement in principle is specifically to avoid “Fire and rehire” and deals only with contractual issues. However, part of this proposal is a commitment to work with IFCE to also shape a new flying agreement between now and 1st November. We need to kindly ask you to be patient just a little longer. Our intention is to secure final legal sign off, and ensure that all our reps are fully briefed to enable them to understand all aspects of the proposal, to be able to help with your questions. Once we have that legal approval, we will be able to share the proposal with you imminently and hopefully open a ballot later this week.”

[162]Mrs James wrote to cabin crew the same day, saying that there was now an “agreement in principle”.

[163]The final version of the RMA is said to take effect from 17 September 2020. It provides that: “Where specified, this agreement will vary existing contractual terms and or collective agreements.” And: “If this proposal is accepted and agreed by Unite, those employees who were successful through the selection stage and/or were unsuccessful but have agreed to work down and have been notified that they are dismissed as redundant but would receive an offer of employment will now have the option of staying with BA on the basis of the terms set out in this agreement. Employees accepting this offer would be notified that their notice of dismissal would be rescinded, subject to acceptance of the changes contained within this agreement. By doing so, their current employment contract will remain in place, except where amended by this agreement.”

[164]Amongst other things, it provides that: “a new Flying agreement to cover an integrated flying operation will be sought. Both parties will use best endeavours to agree this new “Flying Agreement” before 30 October 2020. These ongoing arrangements will be both permanent and, where collectively agreed terms are apt for incorporation, contractual.”

[165]There was to be provision for lay-offs “as a final resort measure”, three weeks unpaid leave during the winter season (said to save approximately 1,000 jobs), changes to allowances, various provisions for pay protection, the headline of which was 85% of current earnings, a “Personal Days off Differential adjustment allocation mechanism has been designed to assist colleagues manage the adjustment from current working patterns” (both claimants accepted that they were within the groups intended to benefit from this), a 33% contract based on 21 days on, 42 days off (I think this was the first public indication that 33% contracts would continue). There were also to be “Transitional Period Arrangements” from 1 November 2020 to 31 August 2021 to allow for training on new aircraft types. Volunteers were sought for early training and, conversely, “British Airways will consider, on an individual basis only, requests for their aircraft conversion training to be deferred to the latter stages of the Transition Period”. The significance of this was that, in general, the respondent flew different aircraft types on short-haul and long-haul routes, so that in practice mixed flying could not occur for any member of cabin crew until they were trained on the aircraft types they were not used to (short haul aircraft for those formerly on the Worldwide Fleet, long haul aircraft for those on Euro Fleet).

[166]The RMA provided that: “To further assist colleagues with this change, British Airways is also committed to developing and improving self-help rostering tools such as Crew Bid and Crew Swap to enable even better choice and control over their working lives.”

[167]To some extent bidding and swapping had been possible in the Legacy Fleets, but it was the respondent’s position that bidding and swapping would be enhanced under the new arrangements, not least because with only one fleet the pool within which cabin crew could bid and swap was much larger.

[168]There was to be a “Trial Period”: “Crew will also have a period of 4 weeks from the point that they start their aircraft conversion training course, to decide whether integrated flying is suitable. They may at any point, prior to the expiry of that fourweek period, apply for a statutory redundancy package (based on SRP and notice pay).”

[169]The RMA concluded by saying: “Both Unite and British Airways accept that this agreement is an overall package, balancing the needs of the business in a changed and challenging environment but also recognising past commitments and that this change is significant and will impact upon colleagues. This, therefore, must be viewed as such. Accordingly, individual elements within it cannot be varied.”

[170]While the respondent was of the view that a ballot was not necessary for the RMA, BASSA did ballot its members on the RMA. As Mrs James says, “On 17 September 2020, BASSA announced that employees had voted overwhelmingly in support of the RMA (there was a turnout of 95.2% of applicable employees, with 95.3% of these employees voting in favour of the deal).”

[171]Given some of her later comments it came as some surprise to learn during the course of the hearing that the first claimant had voted in favour of the RMA. Whether the second claimant had voted for or against the RMA was not explored in evidence.

[172]What the legal position was following this was somewhat complex and not agreed between the parties.

[173]For the respondent, the RMA operated as a variation on previous collective agreements and was sufficient of itself to vary the Legacy Fleet contracts to the extent necessary, with the elements of the RMA that were apt for incorporation in individual contract being incorporated in those contracts. However, the respondent was of the view that this could not simply be treated as a variation of contract, since notice had previously been given to dismiss all relevant employees. That notice could not be withdrawn without the consent of the individual employee, so there needed to be a mechanism for an employee to consent to withdrawal of notice and (it seems for the sake of certainty) the new terms of employment. The respondent also said that it wanted to give those who did not want to remain on the new terms an opportunity to leave on statutory redundancy, particularly as that may create opportunities for others who wanted to stay on the new terms and thereby minimise compulsory redundancies (or possibly allow reinstatement of some who had been dismissed as redundant).

[174]As will be seen, it was the view of the first claimant, at least as expressed response to in cross-examination, that her contract had been varied by the RMA and nothing more needed to be done. It does not seem that the second claimant shared that view, and Mr Engelhardt-Sprack’s closing submissions were to the effect that the terms of the RMA were not apt for incorporation in individual contracts. In any event, Mr Engelhardt-Sprack said that nothing depended on the legal rights and wrongs of this, but it seems important to note the different views so as to give context to what follows.

[175]Following the announcement of the ballot result, on 18 September 2020 Mrs James wrote to cabin crew saying: “Last week, I announced that we had reached an agreement-in-principle with Unite the Union (BASSA) regarding our proposed changes for current Worldwide and Eurofleet crew. I am pleased to announce that following a ballot, BASSA members have voted to accept the agreement … This is positive news for us all – and it means we can now get to work building a strong, single team of crew at Heathrow as we prepare for a different future. We will now finalise the agreement with your trade union and make these changes to our business. Speed is of the essence as we continue to respond to the challenges we face as a business. What happens next? As we have reached agreement, you do not need to sign the new contract which has been sent to you. The electronic contract acceptance form will expire automatically at or before midnight on 19 September, but to confirm, you can ignore any reminder emails as no longer need to sign this as we can now vary your current contract through collective agreement. Now that this agreement has been reached with your trade union, we need you to let us know whether you still wish to stay; or would prefer to leave. … You now need to complete the Individual Confirmation Form. The deadline is Tuesday 22 September. You will have two options: STAY Confirm that you understand that: - notice given on your current contract will be rescinded - the variations outlined in the agreement will be made to your current contract, and - you wish to remain at BA (albeit with the right to a 4-week trial period) OR LEAVE - request to leave British Airways now through redundancy (assumed exit date 30 September) (and receive a statutory redundancy payment and notice pay) It is essential that all colleagues complete this form by the deadline of 5.00pm on Tuesday 22 September … If you don’t confirm that you wish to stay by the deadline, we will assume that you wish to leave BA through redundancy with an assumed leaving date of 30 September.

[176]This forms the basis of the “unequivocal acceptance PCP”. The parties agree that the RMA, balloting process and this invitation to accept the new terms applied only to the Legacy Fleets, with Mixed Fleet having reached their own separate RMA.

[177]This email was followed up by a “DocuSign” email saying “Further to your recent email, please find enclosed your new employment contract. If you could review, sign and return it to us at your earliest convenience. Please note the deadline is the 19th September 23:59 PM.”

[178]It is at this point that the approaches taken by each individual claimant diverge and need to be addressed separately. While I am now confined to looking at the circumstances of the two claimants, around 50 individuals on the Legacy Fleets remained in employment but had voted against or otherwise objected to the terms of the RMA. Many had consulted solicitors (either independently or in groups) and there were threats of legal action in the air. Many of those 50 or so individuals will have brought employment tribunal claims against the respondent arising out of these matters, but only the present two claimants have claims that require determination. The dismissal of the claimants The first claimant

[179]In September 2020 the first claimant was furlough and on long-term sick leave. She had not flown for many months. She was living in Cheshire with her partner and their ten-year-old daughter. I was not told whether their daughter was at school at the time or whether it was one of the periods when access to school was restricted. She flew exclusively short haul on Euro Fleet and worked to a 33% contract, which meant a pattern of 14 days on and 28 days off. In crossexamination she said that the move to Cheshire had not worked out as they had hoped – in particular her partner did not like the commute from Cheshire to Heathrow nor having to spend seven days away from home at a time. They were looking at returning to live closer to Heathrow, which they eventually did, although not until after her dismissal.

[180]The first claimant recounts the correspondence about changes to terms and conditions of employment and the ballot. She says the union “acted contrary to the interests of its members and crossed the floor to the other side”. She says “Disclosure has shown the RMA of 17 September was never signed by British Airways or the union.” She casts aspersions on the “secret” meeting in Wales that eventually led to the RMA. She goes on to say that “The RMA was improperly agreed between the union and BA and is null and void”. She says that “The vote was unfair because BA had legacy full-time, and legacy 75% crew voted that the RMA should change the contracts of other part-time legacy crew.” There was much of this kind of material in each claimant’s statement and I invited Mr Engelhardt-Sprack to be clear in his closing submissions about what legal conclusions I was being asked to draw from this. While it was Mr Engelhardt-Sprack’s case that the RMA did not change individual contracts this argument was based on his consideration of the law relating to incorporation of collective agreements, not on the basis that there was something improper about the RMA itself. The position was somewhat complicated by the first claimant’s acceptance in cross-examination that despite the criticisms she expresses in her witness statement about the RMA she had actually voted in favour of it.

[181]The first claimant says this about the email she received from Amy James on 18 September 2020: “I read the options but was confused about why I would need to complete a form to remain or leave. The form said if I did not confirm that I wished to stay by the deadline, BA would assume that I wished to leave through redundancy with an assumed leaving date of 30 September 2020. The RMA had already stated that acceptance of the proposal meant that I would no longer have my contract of employment terminated nor would I have to sign a new contract. It seemed contradictory and I was very confused as to what the purpose of this form was. On 18 September 2020, I received a DocuSign email with the subject heading asking me to review my new contract ... I opened the email, but I did not click on the DocuSign link. On 20 September 2020 I received another email with a DocuSign link. I opened the email, but I did not click on the DocuSign link.”

[182]On 22 September 2020 the first claimant called Seamus Devlin of the respondent, in response to an occupational health referral form she had received. She says: “He asked how I was, and I said I was extremely upset and distressed with the current situation and that the deadline to complete the form to accept the contract was in half an hour. I told him I wished to stay but could not decide because I did not have enough information about the job role other than my contract would be changed to 21/42, and I was doing mixed flying. As I had not received a diagnosis from a GP, I was concerned about the [occupational health] referral as I did not know if I was physically able to do the long-haul flying.”

[183]On 23 September 2020 the first claimant was sent an email giving her an extension of time until 12:00 on 24 September 2020 to opt to accept the new contract. She did not respond to this. She was given a further extension of time to 17:00 on 25 September 2020. She says she got an email from the respondent saying: “BA was allowing me a further opportunity to complete the form that day, Friday, 25 September, by 17:00; otherwise, BA would continue to assume that I wished to leave BA through redundancy with an assumed leaving date of 30 September.”

[184]So through to the end of September the first claimant did not opt one way or another in respect of the new contract. Her witness statement says that the reason why she did not do so was that she was confused as to why it was necessary and did not have enough information about the new job. In crossexamination she took both points a step further. She said that she considered that the RMA had already varied her contract and so it was unnecessary for her to “click” to accept the new contract, and that she was unwilling to commit to work to an (at that time) unknown scheduling agreement.

[185]Matters took a surprising turn when on 29 September 2020 the first claimant received an email saying “Thank you for completing the Individual Confirmation Form and confirming your wish to stay with us.” The first claimant had done nothing of the kind, as she made clear in her response, sent on 2 October 2020: “I believe I may have been sent this email in error as it states "Thank you for completing the Individual Confirmation Form and confirming your wish to stay with us". I did not complete the Individual Confirmation Form to accept the revised contract as my original part time pattern has been changed from 14/28 to 21/42. I obtained my original 33% pattern via Right to Request for childcare reasons because my partner also works on the ground doing a 7 day working block of varying shifts. I am now unable to cover childcare for the amended working pattern which has been made to my 33% I am unsure how it has been recorded that I have accepted as I know I did not click anything, I am sure this is an error but would ask that you provide me with proof you think I have accepted along with the date and time please.”

[186]At this point the claimant is clear that she did not complete the individual confirmation form and that the reason why she did not do this was “… my original part time pattern has been changed from 14/28 to 21/42. I obtained my original 33% pattern via Right to Request for childcare reasons because my partner also works on the ground doing a 7 day working block of varying shifts. I am now unable to cover childcare for the amended working pattern which has been made to my 33% contract.” At this point she was living in Cheshire and on long-term sick leave. There was considerable discussion at one point during the hearing as to how a 21-day “on” period may or may not conflict with the claimant’s partner’s shift arrangements, which were 7 days on, 3 days off, 7 days on, 4 days off. The respondent produced a table said to show that 21 days conflicted with this no more (or not substantially more) than the first claimant’s previous 14 day on pattern. The point was not taken any further when the claimant accepted in cross-examination that she had not investigated the point and did not know whether the new shift pattern of 21/42 would be better or worse for her in relation to her partner’s shift pattern because she had not investigated it. It was also her position that she could not know whether it would be better or worse for her without being given information about the new scheduling or rostering agreement.

[187]Also on 29 September 2020 the respondent reached agreement with the trade union on “interim measures” – effectively a temporary scheduling or flying agreement (or temporary adjustments to a scheduling or flying agreement) expressed to apply to the new Heathrow Fleet up to the end of February. This is a complex document and was not referred to in any detail at the hearing, except that it provides for a minimum of 21 days notice of any scheduling block, as opposed to the ten days notice that used to apply on Euro Fleet. It is not clear to what extent this “interim measure” was publicised by either the respondent or the union to “non-clickers” such as the first claimant.

[188]The respondent acknowledges that the reference on 29 September 2020 to the claimant having accepted the new terms was an error. This was explained on the basis that the formerly strict deadline was not to be applied to non-clickers who were on long-term sickness absence. They were to receive individual follow up to check that they were aware of the choice. The email of 29 September 2020 had been automatically triggered on the basis that the claimant had not by then been categorised as a leaver.

[189]The confusion continued. On 8 October 2020 the first claimant wrote again to the respondent saying: “Please see below my original email regarding my personal situation with regards to the Individual Confirmation form which I DID NOT click to accept. I understand that you are extremely busy however I have still not had any response from yourself regarding this and I find it a little worrying that your systems can indicate I clicked to accept when I know that I did not. As I didn’t click in the first email of 18 Sep, I was sent a second email on Wed 23 Sep at 12.46 requesting me to click and giving me a revised deadline and then a third email from George De Cintra on Friday 25 Sep at 11.52 stating as I hadn't completed my Individual Consultation form and that I will be given a final deadline of 1700 that day. To be clear so there is no confusion, my reasons for NOT clicking are that I am unable to accept the revised contract because it has resulted in a change to my current Eurofleet 33% working pattern of 28 days off followed by 14 day working block on. The revised contract would now have me working the Worldwide 33% pattern of 42 days off followed by 21 days on and will also mean that I will be operating Longhaul flights as well as Shorthaul flights. My partner also works at Heathrow Airport working 7 day blocks of varying shifts, we share the childcare between us as we have no family that can help us, sadly we would be unable to cover our childcare needs on this new pattern and mixed flying contract.”

[190]It took until 13 October 2020 for the first claimant to get any sort of response to this. She says that that day Seamus Devlin called her “and explained that those of us on long-term sick had been placed to one side. As BA were concerned, we were not able to make a correct choice. He assured me the relevant department was dealing with this and said I would hear something within the next few days.” She says “I did not think it was right that BA should be able to impose these changes without my consent.”

[191]The first claimant wrote again on 13 October 2020 to a variety of people within the respondent: “I did not complete the Individual Confirmation Form to express my wish to accept the revised contract, in fact I DID NOT click anything. I originally had my 33% pattern of 21 [that should be 14] ON 28 OFF granted via Right to Request for childcare reasons because my partner also works on the ground doing a 7 day working block of varying shifts. I am now unable to cover childcare for the new working pattern which has been made to my 33% contract and which will now mean I have to increase my working block to 21 ON and 42 OFF along with flying both Longhaul and Shorthaul flights. I am unsure how it has been recorded that I have accepted as I know unequivocally that I did not click anything and I am certain that your records are incorrect. For the reasons stated above I cannot accept the revised contract and your emails stated: If you don't confirm that you wish to stay by the deadline, we will assume that you wish to leave BA through redundancy with an assumed leaving date of 30 September. I hereby request you send me the necessary leavers email and correct documentation that all other crew member’s have already received who also did not wish to accept this amendment to our current contract.”

[192]If there ever was any doubt about the first claimant’s position it is clear at least by this stage that she was not willing to accept the new contract and that she accepted that the consequence of that was that she would be dismissed. The first claimant says “I did not know what to do and worried I would be compelled to work permanently under the changed terms and conditions.”

[193]Still there was no response, and the first claimant wrote again on 16 October 2020. She received a basic acknowledgment and some sort of indication that matters were in hand. On 22 October 2020 she accessed her roster to find that she had been allocated the 21/42 shift pattern she objected to.

[194]On 23 October 2020 the first claimant received what seems to be a standard form email saying that “you have made a request to leave the business on statutory redundancy terms, with a provisional leaving date of 31 October 2020”. The email contained a link for the claimant to confirm this, but the link appeared to be to a form related to voluntary redundancy. On querying this the first claimant was simply told that this had been sent in error, which can only have added to her confusion. 195. 27 October 2020 brought another standard form email saying she would be leaving on 30 October 2020 and talking about signing a settlement agreement, which had not been mentioned to her before. On 29 October 2020 she was sent a standard form email supposedly confirming her new contract to apply from 1 November 2020. In the meantime, she had received a draft settlement agreement. She notes from this new contract that “there was no longer any stability within my working weeks, which could make arranging childcare difficult”. She mentions this in the context of the lay-off clause, which provided “If there is a temporary reduction in the need for you to attend work due to a reduction in business, the Company may reduce your working hours or temporarily require you not to work. During any period of temporary lay-off you will not be paid. If you are required to work short time, you will be paid pro-rata for the hours you work. During lay off, holiday and pension accrual will cease save for any minimum statutory rights and will accrue pro-rata during any period of short time working.”

[196]Although not explored in evidence, it is not clear how the lay off clause gave rise to childcare difficulties. Lay off could only reduce rather than increase the claimant’s work. While any disruption would be unwelcome, if she was concerned about providing childcare herself (rather than others providing it) a lay-off period would only increase rather than decrease her ability to do so.

[197]The confusion as to the first claimant’s status continued through to November 2020, at which point she raised a formal grievance. Amongst other things, the claimant says: “I emailed you to advise why I was unable to accept the revised working pattern, my part time 33% pattern had been obtained by "Right to request flexible working" as a mature parent with a child whose partner also worked a varying shift pattern for BA at Heathrow Airport. We have no family to help out and we organise our childcare first and foremost around our commitments to our job at British Airways.”

[198]When in Cheshire the first claimant’s mother had assisted with childcare. At this time she was still resident in Cheshire. My notes of her oral evidence were that she moved to Cheshire in October 2019 and from Cheshire to Hampshire in January 2021.

[199]The first claimant does not at any point complain about the pay reduction or suggest that this causes her any difficulties.

[200]The respondent continued to press the first claimant to sign the settlement agreement. At the time it was said that if she did not do so her staff (or former staff) travel privileges would be removed.

[201]At the time the claimant’s grievance was not being progressed in any meaningful sense, and it was only addressed after she had submitted her tribunal claim in February 2021.

[202]The first claimant does not bring any wrongful dismissal claim and amidst all this confusion it is agreed between the parties that her employment ended on 30 October 2020. The second claimant

[203]In September 2020 the second claimant was flying long haul on Worldwide Fleet, and undertook flights to New York and Chennai. As I understand it from her witness statement she flew to New York on 10 September 2020 and returned on 12 September 2020. She then had a period of “minimum base turnaround” (effectively rest days) from 13-15 September 2020 and flew to Chennai (apparently on a cargo-only flight) on 16 September 2020, arriving back at Heathrow on 18 September 2020.

[204]She was living close to Heathrow with her husband and 16-year-old son. Her eldest son was now a young adult and had just started at college in Dallas. Her younger son had just started at 6th form college and was commuting there by train.

[205]The second claimant’s response to the RMA was, along with a number of other colleagues, to raise a collective grievance. This was done by way of an email to Amy James on 17 September 2020. That says that “the basis of our complaints are”: “We have not been consulted on the basis of our basic pay calculations as you have not given accurate figures but based them on an average of fleet when we all are entitled to earn a wage that we work as individuals. It is not evident how these calculations will be made whether people on long term sick or on maternity leave/grounded while pregnant will be included in these calculations. These averages will not relate to our actual earnings and we believe that our actual personal indications of wages would be more appropriate. You have not given any accurate data to work out our basic pay as it has been stated that the figures are not yet available from the company, so as this information is not available to us we cannot make an informed decision without this information. We have been given an approximate value by the union and a very complicated process to calculate it. This process simply cannot be undertaken given the complete lack of clarity of information which is entirely elliptical. This cannot be achieved in the timescale given. There has been no details or job description going forward and has been agreed on principles and not practical information. No one can make an assessment on their ability to do this job with the lack of information.”

[206]The second claimant also lodged what was said to be an individual grievance in very similar terms.

[207]So the complaint raised by her and her colleagues at that point was not about mixed flying, shifts, scheduling or childcare problems, but about a lack of clarity on their new pay. At around the same time she wrote to BASSA ahead of the intended ballot purporting to withdraw any authority they may have to negotiate and reach agreements on her behalf, and notified the respondent that she had done so.

[208]Following the ballot, the second claimant says: “I completed the Individual Confirmation Form on 22 September 2020 … I clicked to STAY when asked how I wished to proceed and that the agreement would vary my contract and want to stay.”

[209]The second claimant refers to a screenshot of the actual form she completed, where she had selected “STAY – I understand that my contract will be varied by this agreement and wish to stay”. She also assented to various confirmations in relation to this, confirming that she was sure of her decision.

[210]Thus in contrast to the first claimant, who was throughout a “non-clicker”, the second claimant was a “clicker” and clicked to vary her contract and remain with the respondent. If that had been the end of it perhaps there would never have been any claim, but it was not. The second claimant says: “On 22 September 2020 [the day she clicked to stay] I emailed Amy James to clarify my position regarding my options for the future.”

[211]The claimant’s email is as follows: “I am writing to you to clarify my position regarding choosing options for my future. Option 1 - Accept the variation outlined in the ballot: This is quite perverse, to make an informed decision without knowing salary, no defined period of lay-off, how per diem subsistence will be paid. In addition to this, you are proposing a permanent change of Terms & Conditions, as opposed to a temporary one which could be amended and adapted once the company returns to normal operation. There has been no consultation with me since the announcement of “The Different Future” in any way and certainly not to this new deal. Further, a contract of employment, even a variated one would need basic elements, which include precise duties, salary, places and hours of work, information about sickness and days off. The collective bargaining process would need to explain in some detail if we were to be legally bound by it. Option 2 - Accept SR and leave BA: Not acceptable. I wish to remain in employment even though I disagree with the Terms & Conditions currently being offered to me. … I confirm once again that I WISH TO REMAIN in employment. It’s imperative that crew be allowed to make an informed decision based on facts. We can only make an informed decision if both IFCE and BASSA have negotiated a proposal whereby we have a clear understanding of what our contract entails and we are not working out our own pay based on incorrect figures, that are at best an average of estimated figures. As the offer stands, the current changes are fundamental and I cannot fully comprehend the changes. IFCE management are clearly confused by the proposed changes with differing responses to the same question resulting in contradictory answers. This is possibly due to individual interpretation through no fault of their own.”

[212]Thus while ostensibly accepting the new terms and conditions the claimant was at the same time objecting to them, and as with her grievance this seems primarily to be on the basis that it was not clear exactly what her new pay would be. At this stage there is no mention of problems with mixed flying, shift patterns or scheduling arrangements.

[213]She was not the only member of cabin crew who adopted such a course of action. Those who clicked “stay” while objecting to the terms offered became known as “dissenting clickers”.

[214]At the same time, solicitors instructed by the second claimant and some colleagues wrote to the respondent asking for “an extension of time in order to properly evaluate the three options presented to them in connection with the ongoing redundancy process” (there was, in theory, a third option of working to the original blue book proposals, but no-one opted for that and it is not material to this decision). The solicitors asked for two things: “1. An extension of time in order to properly evaluate the three options presented to them in connection with the ongoing redundancy process; 2. That under no circumstances should our client’s current inability to make an informed decision be treated as either an implied acceptance or rejection of the proposed options.”

[215]It is not clear in what order those actions occurred on 22 September 2020, although the sequence in the claimant’s witness statement is clicking, then sending the email to Amy James, then sending the solicitors’ letter. If so, the extension of time sought by the solicitors would have no effect for the second claimant as she had already clicked to stay by then.

[216]On 25 September 2020 Mrs James wrote to the second claimant (and other dissenting clickers), apparently on the instructions of Mr Pattar. The email says: “I refer to the IFCE Communication sent to you on 18 September 2020 and setting out your options. You have responded with your Individual Confirmation Form indicating that you wish to stay at BA, but also written to us to say that you object to those terms and disagree with them. We will therefore proceed on the basis that you wish to leave BA on the grounds of redundancy, and your notice of dismissal from early August is therefore still effective, although as per the communication your termination date will now be 30 September 2020. In accordance with the agreement reached with Unite we will pay you Statutory Redundancy Pay (SRP) and any outstanding notice pay. … The relevant documentation will be forwarded to you next week to complete the redundancy process.”

[217]The second claimant replied on 27 September 2020, saying: “I refer to an email from Amy James informing me that she is proceeding for me to leave BA on the grounds of redundancy. This is not my wish and is entirely incorrect. I have complied with her instructions to complete the Individual Confirmation Form and my decision is to stay as a Manager. I had accepted that submission of this form is final ... I sent an email clarifying my position twice that I WISH TO REMAIN in employment. There was no opportunity on the Individual Confirmation Form, to raise questions regarding The Redundancy Mitigation Agreement. It is my fundamental right to question the Redundancy Mitigation Agreement when information is not specific, measurable and is open to interpretation. As I stated which management team were unable to provide definitive answers. Please can you answer the following questions. 1) What is an applicable role when referring to Duty Pay or Short Day Payment? 2) Does this include the manager role? 3) How long could a lay off period extend to? 4) What existing terms and conditions will remain unchanged? 5) How will per diem allowances be paid? The above information should have been disclosed in the Redundancy Mitigation Agreement that I am expected to understand, agree and accept. I am unclear as to the degree of the variation to my contract, and other vital elements including lay-offs, actual salary etc. I have returned from furlough and am back flying, leading my teams and it’s necessary that I am fully informed and can answer any questions that the team may have. To clarify again, I reiterate, on the Individual Confirmation Form and in my email I wished to stay/remain with BA.”

[218]Whatever the correct legal interpretation of this might be, it is striking that we see in the last days of their employment the claimants take entirely opposite views in their response to the “stay or leave” email.

[219]The first claimant refuses to opt to either stay or leave, on her case partly because she considers her contract to have already been changed and partly because she is unwilling to consent to an unknown or yet to be negotiated scheduling and rostering agreement. She expresses concern about mixed flying and new shift patterns.

[220]On her case, the second claimant opted to stay and agreed to the new terms and conditions, despite certain elements being unknown or unclear to her. So far as she is concerned, the unknown element is not scheduling but is what exactly her new pay will be. On her case she is prepared to accept the new terms and her way of dealing with uncertainty is not (as in the case of the first claimant) refusing to click, it is clicking to stay and asking questions later. Essentially her position is that she had always agreed to stay on the new terms but had some questions about the detail. For the first claimant, questions about the detail meant she did not click. For the second claimant, questions about the detail were to be addressed after she had clicked. The second claimant has not so far raised any concerns about mixed flying, the new shift pattern she would be subject to, scheduling or anything else to do with childcare. Her concerns about her new pay are not that it is too little, but that the detail of it is unclear or unknown.

[221]The contrast in the claimants’ positions is so great that it might be said that the first claimant objected to being treated as if she had clicked to stay when she had not and the second claimant objected to being treated as if she had clicked to leave when she had not.

[222]The idea that the second claimant had, in fact, consented to the new terms and conditions and was only asking for more detail about them would come as a surprise to anyone who had read her re-amended particulars of claim, which contained the following: “The [second] claimant did not consent to the variation of contract.” “The respondent unilaterally changed the contract. The [second] claimant did not consent to the variation of the contract.” “The [second] Claimant contends that the written unsigned Redundancy Mitigation Agreement (RMA) between British Airways and Unite the Union (said to be effective from 17 September 2020) is not legally enforceable under Section 179 TULRCA 1992. The RMA is aspirational rather than contractual. It was an intention to offer. The [second] Claimant did not accept the offer, and the terms were not incorporated into the [second] Claimant’s employment contract.” “the [second] claimant did not accept the changes to pay”

[223]Notably each of these provisions was added by amendment, so did not appear in the second claimant’s original claim.

[224]I am afraid this is another example of the disconnect between the claimants’ pleadings, the evidence they gave, and the claims that Mr Engelhardt-Sprack addressed in his closing submissions.

[225]Except perhaps for the solicitor’s letter sent on behalf of the second claimant neither claimant complained at the time of being given too short notice to make a decision. The first claimant did not consider it necessary to make a decision and was reluctant to commit to an as yet unnegotiated scheduling agreement. The second claimant (on whose behalf the solicitor’s letter was sent) did make a decision in time, perhaps before the letter was sent, and has, on her case, never been in any doubt that she wanted to stay and accepted the new terms.

[226]On 30 September 2020 the respondent wrote to the second claimant saying: “You have previously made clear to us that you did not accept the options set out in the IFCE communication sent to you on 18 September 2020. In that communication, we made it clear that colleagues who did not accept the terms of the agreement reached with your elected Trade Union representatives would be leaving the business on the grounds of statutory redundancy. Therefore, we will proceed on the basis that you are leaving British Airways on the grounds of redundancy; as explained to you in the email to you of 25 September 2020.”

[227]She was sent a “confirmation of leaving the business” email recording her leaving date as being 30 September 2020. Wrongful dismissal – the second claimant

[228]The second claimant has a wrongful dismissal claim. It is said that her dismissal on 30 September 2020 (with payment in lieu of notice) was a repudiatory breach of contract and that she did not accept that repudiatory breach of contract. The respondent accepts that there was no payment in lieu of notice clause in her contract, so in principle dismissal with payment in lieu of notice would amount to a repudiatory breach of contract. The question is whether the second claimant accepted that breach of contract (in which case any liability to her has been extinguished by the payment in lieu of notice) or did not (in which case her employment may have continued into 2021).

[229]Having been notified of her dismissal, the claimant wrote on 2 October 2020 to appeal against her dismissal. Amongst other things, she says: “The option to click, ‘Stay or Leave’ was entirely premature as the terms and conditions were still to be negotiated, elliptical and still remain so. I believe it is reasonable to state that the next stage of the agreements is not known by any party and still a ‘work in progress’ to be negotiated by 31st October 2020. - Terms and Conditions - Flying Agreements - Variable payments which form part of our pay. … To date, it is impossible for anyone to make an informed and credible choice to accept terms that are not known, cannot be discerned, leaving the individual with uninformed choices from the lack of available information. For clarity 1. I clicked STAY. 2. I have not used the terminology “object” to terms and conditions which you quote that I have stated (and were not available as of 22nd September). 3. The term I used “currently” is exactly that. At the present time. 4. In my email I have stated I cannot fully comprehend the changes. There is a clear need for clarity to fully enable me to understand. 5. You have made an assumption that “I wish to leave”. At no point did I authorise, indicate or agree to this. No attempt has been made on your part to reach out to me to confirm my “wish”. My reluctance to be bound by BASSA is irrelevant until this information is disclosed. It is unreasonable to fully agree a variation of contract without knowing vital elements including actual salary, lay-offs, days off etc. On 7th August 2020 the company effectively terminated my contract with the intention of “firing and rehiring” the entirety of the workforce. This has been rescinded as the proposed deal was ratified. I will have no alternative but to consider myself as having been unfairly/constructively dismissed and discriminated against on the basis of my Race, Age, Sex and by virtue of the fact that I have a part time I ask you therefore to prioritise my immediate reinstatement and return to Cabin Service Director.”

[230]For the respondent the significance of this is that the second claimant refers to herself as having been dismissed and requests re-instatement – both suggestive of an actual dismissal and therefore in legal terms suggestive that the claimant has accepted the respondent’s repudiatory breach of contract in making an immediate dismissal with payment in lieu of notice.

[231]The first suggestion that the second claimant had not been dismissed comes in her email of 25 November 2020, where she says: “… your purported termination of my employment contract was a repudiatory breach of contract in that you have sought to terminate by making a payment in lieu of notice without there being a payment in lieu of notice clause in my contract. I do not accept this repudiatory breach of contract (as I am entitled to do as per the case of Société Générale, London Branch v Geys

[2012] UKSC 63

). In light of the above, my employment with British Airways PLC is ongoing, and I expect to continue to be paid my salary.”

[232]This will be considered further in my discussion and conclusions, but I have now concluded the element of my decision that sets out the relevant facts. C. THE LAW Indirect discrimination Indirect discrimination generally

[233]Section 19 of the Equality Act 2010 says: “(1) A person(a) (A) discriminates against another

(b) (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's. (2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if: (a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,

(d) A cannot show it to be a proportionate means of achieving a legitimate aim.”

[234]In the following discussion I will set aside the question of indirect discrimination in a case where the claimant does not share the protected characteristic of the group said to be disadvantaged by the PCP. The legal principle that such a claim is possible was established by the claimants earlier in this litigation, but does not in fact apply to either claimant’s case (see British Airways plc v Rollett

[2024] EAT 131

). The PCP

[235]The first step is to identify the relevant PCP and whether it was applied to the claimant. It is for the claimants to identify the PCP they rely upon.

[236]From there the tribunal must consider whether this PCP was applied or would be applied to people without the claimant’s protected characteristic. Group disadvantage

[237]If so, does the PCP give rise to a “group disadvantage”: putting persons with whom the claimant shares a protected characteristic as a particular disadvantage compared with those who do not have the protected characteristic? This will typically require consideration of a “pool” and “on a comparison of cases … there must be no material difference between the circumstances relating to each case” (s23(1) Equality Act 2010).

[238]In Dobson v North Cumbria

UKEAT/0220/19

Choudhury P said that “the starting point for identifying the pool is to identify the PCP. Once that PCP is identified the identification of the pool itself will not be a question of discretion or of factfinding but of logic.”

[239]On the question of the relevant pool, Lady Hale said in Essop v Home Office, Naeem v Secretary of State for Justice

[2017] UKSC 27

: “… all the workers affected by the PCP in question should be considered. Then the comparison can be made between the impact of the PCP on the group with the relevant protected characteristic and its impact on the group without it … In general, therefore, identifying the PCP will also identify the pool for comparison.”

[240]Para 5.18 of the ECHR Code of Practice says: “In general, the pool should consist of the group which the provision, criterion or practice affects (or would affect) either positively or negatively, while excluding people who are not affected by it either positively or negatively. In most situations, there is likely to be only one appropriate pool, but there may be circumstances where there is more than one. If this is the case, the court will decide which pool to use.”

[241]In Dobson Choudhury P identified at para 56 a number of ways in which disadvantage may be established: “particular disadvantage can be established in one of several ways, including the following:a. There may be statistical or other tangible evidence of disadvantage ...

b. Group disadvantage may be inferred from the fact that there is a particular disadvantage in the individual case. Whether or not that is so will depend on the facts, including the nature of the PCP and the disadvantage faced. Clearly, it may be more difficult to extrapolate from the particular to the general in this way when the disadvantage to the individual is because of a unique or highly unusual set of circumstances that may not be the same as those with whom the protected characteristic is shared;

c. The disadvantage may be inherent in the PCP in question; and/or

d. The disadvantage may be established having regard to matters … of which judicial notice should be taken. Once again, whether or not that is so will depend on the nature of the PCP and how it relates to the matter in respect of which judicial notice is to be taken.” Group disadvantage - judicial notice and the childcare disparity

[242]As previously identified, aspects of the claimants’ indirect sex discrimination claims were based on the difficulties with childcare that the respondent’s PCPs were said to give rise to.

[243]It was the “childcare disparity” that was specifically mentioned by Choudhury P at point (d) of the extract from Dobson cited above as being a matter that the tribunal could and should take judicial notice of. At para 46 of Dobson he said: “a. … the fact that women bear the greater burden of childcare responsibilities than men and that this can limit their ability to work certain hours is a matter in respect of which judicial notice has been taken without further inquiry on several occasions. We refer to this fact as 'the childcare disparity'; b. Whilst the childcare disparity is not a matter directed by statute to be taken into account, it is one that has been noticed by Courts at all levels for many years. As such, it falls into the category of matters that, … a tribunal must take into account if relevant.”

[244]I have referred earlier to para 48 of Dobson and the idea that “if a party seeks to rely upon a matter in respect of which judicial notice is to be taken, then it should identify that matter up front”. The manner in which that was done in this case has been addressed earlier in these reasons.

[245]At para 48 of Dobson, in discussing judicial notice of the childcare disparity, Choudhury P says: “Whilst the childcare disparity is uncontroversial … other related matters are not. For example, it is not accepted that the childcare disparity necessarily means that any requirement to work flexibly will put women at a disadvantage compared to men. Flexible working can mean different things in different contexts. Some types of flexible working, e.g. the ability to work any seven-hour period between the hours of 8am and 6pm, might even be considered advantageous by some with childcare responsibilities.”

[246]This foreshadows the arguments in this case that have been less about the fact of the childcare disparity (readily accepted by the respondent as something that I should take judicial notice of) and more about whether the childcare disparity in fact established group disadvantage in respect of any particular PCP (or combination of PCPs). Choudhury P specifically makes that point at para 50 of Dobson: “… taking judicial notice of the childcare disparity does not necessarily mean that the group disadvantage is made out. Whether or not it is will depend on the interrelationship between the general position that is the result of the childcare disparity and the particular PCP in question … Judicial notice enables a fact to be established without specific evidence. However, that fact might not be sufficient on its own to establish the cause of action being relied upon … the specific circumstances will have to be considered and one needs to guard against moving from an ‘indisputable fact’ (of which judicial notice may be taken) to a ‘disputable gloss’ (which may not be apt for judicial notice) ... taking judicial notice of the childcare disparity does not inexorably to the conclusion that any form of flexible working puts or would put women at a particular disadvantage.”

[247]Eady P took up this point in Marston v Perkins

[2025] EAT 20

, in which she refers to the “nuanced characterisation” of the childcare disparity in Dobson, and held that (para 87): “… the ET’s task is to consider the particular nature of the PCP in issue to determine whether that clearly would give rise to difficulties for women, such as would amount to a group disadvantage …” Group disadvantage – a statistical approach and causation

[248]The first way of demonstrating group disadvantage identified by Choudhury P is “a statistical approach”. To some extent this is relied upon by the claimants in this case, particularly in respect of their argument about combining PCPs. An important aspect of this (and of establishing group disadvantage in general) is that while in some cases “the disadvantage may be inherent in the PCP in question” all that is necessary is to establish the fact of group disadvantage. It is not necessary to establish that the reason for the group disadvantage is something to do with the protected characteristic. That may well be particularly significant where statistics show a group disparity, as the statistics alone will be sufficient without the need for inquiry into how it is that any group disadvantage arises from the protected characteristic in question (Essop). Individual disadvantage

[249]If group disadvantage is established, then the claimants must establish individual disadvantage in their particular cases. As will be seen below, in the most part the claimants relied on the two being the same, and argued that individual disadvantage also established group disadvantage (category (b) identified above by Choudhury P). Combining PCPs

[250]A claimant may combine PCPs and it may be that the combination of PCPs gives rise to group and individual disadvantage even if there are no such disadvantages when the PCPs are taken individually (Ministry of Defence v De Bique

[2010] IRLR 471

). Justification

[251]If the PCP (or combination of PCPs) reaches the point of requiring justification, the burden is on the respondent at each stage of the process of justification. Justification requires the respondent to show that the application of the PCP is a proportionate means of achieving a legitimate aim.

[252]Mr Englehardt-Sprack identifies the case of R (Tigere) v Secretary of State for BIS

[2015] 1 WLR 3820

as summarising a four-stage test for justification: “(i) does the measure have a legitimate aim sufficient to justify the limitation of a fundamental right; (ii) is the measure rationally connected to that aim; (iii) could a less intrusive measure have been used; and (iv) bearing in mind the severity of the consequences, the importance of the aim and the extent to which the measure will contribute to that aim, has a fair balance been struck between the rights of the individual and the interests of the community?”

[253]That appears to me to be a workable summary of a large body of European and domestic case law that has considered the justification test. He is also correct to say that there is no “range of reasonable responses” in relation to justification of discrimination. Whether the discrimination is justified or not is a matter to be objectively assessed by the tribunal (Hardys & Hanson plc v Lax

[2005] EWCA Civ 846

[254]Agreement of the measure in question with a trade union may count as a factor towards justification (Rolls Royce plc v Unite the Union

[2009] IRLR 576

[255]A point which arises in this case is the question of “costs only” justification. It is established that saving cost alone is not justification for discrimination (or as it is put at para 4.29 of the EHRC Code of Practice, an employer “cannot simply argue that to discriminate is cheaper than avoiding discrimination”). The leading case on this is now Heskett v Secretary of State for Justice

[2020] EWCA Civ 1487

and the law on this point is addressed at the point in my discussion and conclusions to which it is relevant. Direct discrimination

[256]Section 13(1) of the Equality Act 2010 says: “A person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”

[257]Mr Englehardt-Sprack reminds me that: “The protected characteristic does not need to be the sole, or even the main, reason for the ‘less favourable treatment’ : so long as the protected characteristic ‘materially influenced’ the alleged discriminator’s decisionmaking, direct discrimination is made out (Nagarajan v London Regional Transport

[1999] UKHL 36

). Even subconscious (or unconscious) influence on decision making amounts to treatment ‘because of’ the protected characteristic (Geller v Yeshurun Hebrew Congregation

[2016] ICR 1028

).”

[258]Subject to arguments that will later be discussed about whether a comparator is always necessary in a direct discrimination claim, section 23(1) of the Equality Act 2010 provides that: “On a comparison of cases for the purposes of section 13 … there must be no material difference between the circumstances relating to each claim.”

[259]The claimants’ argument that a comparator is not necessary in this case will be addressed in my discussion and conclusions. The burden of proof in discrimination cases

[260]For their discrimination claims, the claimants have the benefit of the burden of proof provisions in s136 of the Equality Act 2010: “(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision.”

[261]However, I note the caution expressed by the Supreme Court in Hewage v Grampian Health Board

[2012] UKSC 37

at para 32: “it is important not to make too much of the role of the burden of proof provisions. They will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. But they have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or the other.” The Part-Time Workers Regulations

[262]Under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 the claimants rely on regulation 5, which provides that: “(1) A part-time worker has the right not to be treated by his employer less favourably than the employer treats a comparable full time worker:(a) as regards the terms of his contract; or

(b) by being subjected to any other detriment by any act, or deliberate failure to act, of his employer. (2) The right conferred by paragraph (1) applies only if: (a) the treatment is on the ground that the worker is a parttime worker, and (b) the treatment is not justified on objective grounds ...”

[263]Under regulation 2(4): “A full-time worker is a comparable full-time worker in relation to a parttime worker if, at the time when the treatment that is alleged to be less favourable to the part-time worker takes place:(a) both workers are: (i) employed by the same employer under the same type of contract, and (ii) engaged in the same or broadly similar work having regard, where relevant, to whether they have a similar level of qualification, skills and experience, and

(b) the full-time worker works or is based at the same establishment as the part-time worker or, where there is no full-time worker working or based at that establishment, who satisfies the requirements of sub-paragraph (a), works or is based at a different establishment and satisfies those requirements.”

[264]Mr Englehardt-Sprack’s closing submissions also make reference to regulation 7, but there is nothing in the list of issues that relates to regulation 7 of the Parttime Workers Regulations.

[265]Under section 94 of the Employment Rights Act 1996 an employee with two or more years’ continuous service (which would include both claimants) has the right not to be unfairly dismissed.

[266]Unfair dismissal is further addressed in section 98 of the Employment Rights Act 1996: “(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 (or, if more than one, the principal reason) for the dismissal, and

(b) that it is either a reason falling within subsection (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 subsection if it: …

(c) is that the employee was redundant, … (4) Where the employer has fulfilled the requirements of subsection (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.”

[267]“Redundancy” is defined in section 139(1) of the Employment Rights Act 1996: “For the purposes of this Act 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.”

[268]I agree with Mr Englehardt-Sprack that on the question of a “some other substantial reason” dismissal: “It is well established that ‘some other substantial reason’ may include a ‘necessary re-organisation of the business’ (Hollister v National Farmers Union

[1979] ICR 542

). However, the question will always be whether the dismissal was procedurally and substantively fair, in all the circumstances, and it is submitted that in such cases the principles relating to redundancy dismissals are a helpful starting point.”

[269]Mr Carr also places reliance on Hollister (and I accept his submissions on this point): “Where an employer relies on the implementation of a business reorganisation as some other substantial reason of a kind so as to justify dismissal, it is sufficient to show that the reorganisation was undertaken for a sound business reason - a reason which management thinks on reasonable grounds is sound (Hollister v National Farmers’ Union

[1979] ICR 542

, CA at [551A]). There is no principle of law that an employer may only offer terms which are less favourable than those that previously existed if the survival of the business depends on the adoption of those terms (Garside and Laycock Ltd v Booth

[2011] IRLR 735

at [10]-[12]).”

[270]The second claimant’s claim of wrongful dismissal relies on Société Générale v Geys

[2012] UKSC 63

. I adopt Mr Englehardt-Sprack’s summary of that case in the following terms: “Where an employer purports to dismiss an employee with immediate effect with pay in lieu of notice, absent any provision allowing for such a dismissal, this constitutes a fundamental breach by the employer but does not, without more, terminate the employment contract ... In such circumstances, termination only takes effect if the employee ‘accepts the breach’, either expressly or by acting in a manner inconsistent with the continuation of the contract of employment.” D. DISCUSSION AND CONCLUSIONS

[271]I should say at this point that I have found aspects of the claimants’ claims (in particular the discrimination aspects) very difficult to understand.

[272]This will not come as a surprise to those who attended the hearing. I have made no secret of my difficulties with some aspects of the claims. They were raised with the claimants at the earliest opportunity following the reformulation of their

[273]I acknowledge that neither Mr Engelhardt-Sprack nor Ms McGuigan were responsible for the original form of pleading adopted by the claimants. They had different representatives then. It also appears that Mr Engelhardt-Sprack was only instructed at quite a late stage in proceedings. It may also be the case that the claimants were taken by surprise at eventually having to conduct this hearing with them as the only claimants. But even given all of this there remained some fundamental difficulties.

[274]The broad thrust of the claimants’ complaints is not difficult to understand. They say that using the excuse or pretext of the pandemic the respondent embarked on a cynical and dishonourable attempt to “slash and burn” the carefully guarded terms and conditions enjoyed by the Legacy Fleets. The changes that resulted were unnecessary and caused them both difficulty with their childcare arrangements. The new terms and conditions offered were significantly worse for the legacy fleets but no worse for the Mixed Fleet. The Legacy Fleet crew members tended to be older than Mixed Fleet crew members. But what that actually meant in terms of legal claims I have found very difficult to understand.

[275]At the point the claimants became the only remaining claimants it was apparent there would need to be some revision and rationalisation of the list of issues in this case, and I think it is correct that that was by way of reformulation of the relevant PCPs, rather than simply deletion of elements of the original list of issues, but to have to attempt such a reformulation at the start of the hearing required very careful consideration by the claimants and did not bode well for what may result from it.

[276]I have already referred to some of the difficulties that arose from this. They are prominent in two of the most obvious and striking PCPs: the requirement for mixed flying and the requirement to operate to a 21-day “on” period.

[277]Both these were said to disadvantage women generally and the claimants individually on account of their childcare responsibilities and the “childcare disparity”. But Dobson emphasises that the childcare disparity will not necessarily indicate group disadvantage in any particular situation, and the claimants were in a difficult position given that they approached this from opposite sides. The first claimant flew exclusively short-haul with 14-day on periods and considered that that worked well for her childcare commitments. The second claimant flew exclusively long-haul with 28-day on periods and considered that that worked well for her childcare commitments. Both seemed to be of the view that flying both short-haul and long-haul disadvantaged them in respect of childcare and while “on” periods of 14 and 28 days respectively allowed for childcare, an on period of 21 days did not. I have always been open to that as a possibility – that both were disadvantaged by mixed flying and by a move from 14 or 28 days to 21 days on, but I have also emphasised to Mr Engelhardt-Sprack that it would require careful explanation as to how both were disadvantaged in those circumstances.

[278]Fundamentally the difficulty with both these PCPs is what there is about them that is said to disadvantage women in general and the claimants in particular. “Mixed flying” itself means no more than flying both short-haul and long-haul, but neither claimant suggested that the destination they flew to or even the duration of any individual sector was a problem for them. I suggested to Mr Engelhardt-Sprack that this seemed to mean that it was something that went with mixed flying rather than mixed flying itself that was a problem. Similarly it was not at all clear how a 21 day “on” period could be worse for women with caring responsibilities than both a 14 day “on” period and a 28 day “on” period.

[279]There was never really any answer to this, and the claimants’ witness statements did not assist. The first claimant was particularly concerned about how her shift pattern would interface with her partner’s shift pattern, but accepted in cross-examination that she had never investigated that and did not know whether it would be better or worse for her across a 21 day “on” period as opposed to a 14 day “on” period. The claimants’ witness statements spent far more time in rhetorical criticism of the respondent’s conduct than in addressing the matters the tribunal had to decide – so much so that, as will be seen later, in apparently important aspects of each of the claimants’ claims I had no evidence from them at all.

[280]So far as the mixed flying PCP and the shifts PCP were concerned, Mr Engelhardt-Sprack’s written closing submissions only addressed these by reference to the first claimant. For the mixed flying PCP it was that “she would be required to spend longer continuous periods away from home at a time”, and for the shifts PCP it was that “there would be a longer continuous period (21 days instead of 14 days) where she could not be confident she would be available to carry out childcare.” I was concerned that the first claimant may not have given evidence to that effect, and will return to this later in my discussion and conclusions.

[281]Unfortunately, as most obviously shown by the unsuccessful application to add matters to the unfair dismissal claim, I was sometimes left with the impression that by the time of closing submissions the claimants were trying to run a case that was neither the one the they had plead nor the one they were giving evidence in respect of.

[282]This was not just the claimants attempting to run a case that had not been pleaded. In many cases the claimants’ evidence did not pay any attention to the matters that had been pleaded. This was most starkly evident on the question of the first claimant’s status as a “commuter”. For these purposes a “commuter” was someone who lived more than two hours distance from Heathrow, and the significance of being a commuter was that it was said to bring the individual within the scope of the indirect race discrimination claim being brought by nonBritish nationals living overseas. The first claimant’s statement gave a limited account of how she managed childcare and shifts between her and her partner, but this seemed to be on the basis that they lived relatively close to Heathrow. If she lived close to Heathrow then she would not count as a “commuter”. There was nothing in her witness statement about the difficulties she faced in commuting from Cheshire. On cross-examination, she said that the circumstances she described in her witness statement related to childcare in 2019, when she and her family had lived in Surrey. She said this was how they anticipated childcare working as and when they returned to closer to Heathrow, but there was nothing in her statement that addressed her pleaded case of difficulties that arose in commuting from Cheshire, nor addressed to any extent where she was living at the relevant time. The whole statement appeared to be premised on the basis that she was living in Hampshire, which she was at the time of the statement, but that is not the relevant time for the purposes of her claim. Unsurprisingly, as previously described, the indirect race discrimination claim was withdrawn at an early stage in the hearing.

[283]Finally, Mr Engelhardt-Sprack’s submission at the conclusion of his discussion of the PCPs (in the context of indirect discrimination) that “It follows that both Cs and women more generally were placed at the particular disadvantages.” seemed to me to be a little troubling. It followed a section addressing the disadvantages the claimants were put to and appears to suggest that the fact that the claimants were put at a disadvantage meant that women generally were put at a disadvantage. There may be cases where that is so. I have cited above Choudhury P in Dobson as saying that “group disadvantage may be inferred from the fact that there is a particular disadvantage in the individual case”, but he cautions that “whether or not that is so will depend on the facts” and “it may be more difficult to extrapolate from the particular to the general … where the disadvantage to the individual is because of a unique or highly unusual set of circumstances that may not be the same as those with whom the protected characteristic is shared”. This argument means that in discussing the PCPs in relation to indirect sex discrimination I may well have to address individual disadvantage before considering group disadvantage, when I would have preferred to do that in the more conventional manner – group disadvantage first, then individual disadvantage. Indirect sex discrimination – individual PCPs

[284]In assessing the claimants’ claims of indirect sex discrimination I will have to address each individual PCP, finding (if disputed) whether it exists and in each case whether it creates a particular disadvantage for women and puts the claimants at that disadvantage. If so, then it is for the respondent to justify the

[285]Having considered each PCP, I will address the claimants’ position that the PCPs should be combined. PCP1 – the mixed flying PCP

[286]PCP1 is “The requirement that all cabin crew do mixed flying – i.e. flying which includes both longhaul and shorthaul flights.” This has been called the “mixed flying PCP”.

[287]The respondent accepts that this PCP exists and was applied to the claimants. They say that it was applied only across the Legacy Fleets, on the basis that “Mixed Fleet crew are in a wholly different position having been recruited to do mixed flying and having done so since as far back as 2010.”

[288]Given my findings, the precise scope of the pool is not something I have to determine in relation to the PCP.

[289]In addressing group and individual disadvantage, in his closing submissions Mr Engelhardt-Sprack says: “The Mixed Flying PCP placed TD at a number of particular disadvantages in that she would be required to spend longer continuous periods away from home at a time during her ‘on’ patterns – eg. fewer ‘there-and-backs’ within a day. This was broadly accepted by TM in his live evidence: his rule of thumb was that Eurofleet had 1 in 3 nights away, but this increased inline with the introduction of longhaul flying. This would make it harder for TD to discharge her childcare responsibilities, as compared with a male comparator who would not have such extensive childcare responsibilities.”

[290]There are a number of things that seem to follow from that. The first is that if there is an individual disadvantage it only applies in respect of the first claimant and not the second claimant, who is not mentioned at all. No individual disadvantage (which must be in respect of childcare in this situation) has ever been mentioned for the second claimant, and her correspondence at the time does not raise any objection to mixed flying.

[291]The submission is strangely phrased. It is said that the first claimant was placed at a number of particular disadvantages, but only one is identified: “that she would be required to spend longer continuous periods away from home at a time during her “on” patterns.”

[292]This supposed individual disadvantage is a good example of some of the problems the claimants have had with their claims. I had suggested to Mr Engelhardt-Sprack from the start of the substantive hearing of this case (the second week of the hearing) that it seemed that the claimants were not, as such, objecting to mixed flying. Neither gave any evidence about why short haul or long haul flying, or both together, caused them difficulty. If there was a disadvantage them it must be something that went along with mixed flying or something to do with the arrangements for mixed flying, rather than mixed flying itself.

[293]We then have, identified I think for the first time in Mr Engelhardt-Sprack’s closing submissions, that the first claimant (and the first claimant only) was put at a disadvantage by what she considered to be a particular feature of longhaul flying: that it required “longer continuous periods away from home at a time” than short haul flying did. But Mr Engelhardt-Sprack derives this requirement not from anything the first claimant says but from his crossexamination of one of the respondent’s witnesses. I do not think the first claimant has ever said that longer continuous periods away from home a time were either something that went with mixed flying or caused her particular difficulty on account of her childcare commitments. I asked Mr EngelhardtSprack during oral submissions to tell me what evidence the claimant had given on that, and he referred me back to her evidence on her partner’s shift pattern. If the PCP had been plead from the start (or on reformulation at the start of this hearing) in terms of “longer continuous periods away from home at a time” then perhaps that is a matter that could have been properly explored at the hearing.

[294]As previously referred to I had been careful to invite the parties to identify matters that they wished me to take judicial notice of, and those are set out in the appendix to this decision. That mixed flying involves longer continuous periods away from home at a time compared to short-haul only flying or that that would disadvantage women with childcare responsibilities (in comparison with short-haul only arrangements) was not something that either party invited me to take judicial notice of, so it would be required to be proven by party relying on it – in this case the claimants.

[295]Does mixed flying in fact involve longer continuous periods of absence from home than short-haul flying? Neither the first claimant nor anyone else has given evidence in those terms, since it was only in closing submissions that this particular disadvantage was identified. It is, I suppose, self-evident that an individual sector on long-haul will generally take more time than an individual sector on short haul. It was also Mr Monk’s evidence that long-haul flying would almost always involve an overnight stay away from base, which was a requirement of only around 1 in 3 short-haul duties. So I accept that long-haul flying means a longer sector followed by at least one overnight stay and a similarly long return sector, but whether and to what extent that would mean longer continuous periods away from home at a time is unclear to me. I have seen instances of the first claimant being away for multiple days at a time when flying exclusively short-haul.

[296]The very late formulation of exactly what the problem is with this PCP means there has been no real exploration in evidence as to whether mixed flying would mean longer continuous periods away from home at a time than exclusively short haul.

[297]Despite these misgivings I am prepared to assume in the first claimant’s favour that mixed flying would mean longer continuous periods away from home at a time. If so, it is necessary for me to consider whether this (and then the mixed flying PCP itself) put women generally at a disadvantage and whether it put the claimant herself at a disadvantage. In doing so I take judicial notice of the childcare disparity, defined for the purposes of this case as meaning that, in general, women spend more time discharging childcaring responsibilities than men.

[298]Did a requirement to spend longer continuous periods of time away from home disadvantage the claimant (and women in general) and if so did the mixed flying PCP put the claimant at a disadvantage? It remains the case that it is a requirement to do mixed flying that is the PCP in question, not any requirement to spend longer continuous periods of time away from home, which is only the disadvantageous element of the PCP, not the PCP itself.

[299]The claimant did not suggest in her evidence that that longer continuous periods of time away from home disadvantaged her. The point was not mentioned by her and was first raised in closing submissions. It is true that the claimant was keen to emphasise that her partner also worked shifts. She gives her account of this at paras 143 and 144 of her witness statement: “My August 2019 work block started Monday 06 August to Monday 19 August. The first 3 days of my work block were my partner's last 3 days of his work block (6-8 August); he took annual leave those 3 days and then had 4 days off (9-12 August). This now gave him 7 days off at home, and I could request to work those same 7 days (6-12 August) while he cared for our daughter. My 4 days off were (13-16 August) my partner went back to work on 13 August for his next block of work, whilst I then cared for our daughter. We overlapped, working the same 3 days (17-19 August). My partner was on an early shift, so I finished at 2pm; I had requested and achieved flights which reported for work from 15.00 onwards. I would get ready for work, head towards Heathrow, meet my partner en route who was coming home, and hand over our daughter. Working a late there and back flight meant I could return home each evening, and landing and clearing duty after 8pm would trigger an evening meal allowance in addition to the CFP payment. During term time, whilst my daughter was in school, I could request to work for different flights, which may be longer and achieve lunch and dinner allowances. This flexibility with the roster bidding meant I could tailor my roster to what worked best for us. Organising childcare as cabin crew was an ongoing challenge, but I made it work with meticulous preplanning.”

[300]As previously stated, these were not the arrangements that prevailed at the time of the claimant’s dismissal. At that time she was living in Cheshire, was on longterm sick leave, had access to her mother for child care and her partner would stay away for his week long duties. It was unclear whether the first claimant herself stayed near Heathrow when working. Doing a late there and back flight as the claimant suggested she may do could hardly help with child care when she then had a 3-4 hour journey home from Heathrow after work.

[301]What the claimant is describing there is not any difficulty she had in spending longer periods of time away from home, but the lengths that she and her partner went to to make sure that one of them was available for their daughter, at a time when their childcare arrangements were different to those that prevailed at the time any PCP was applied to her and when they were living in a different part of the country. I have been given no indication of what their childcare arrangements were at the time the PCP was applied to her. It has never been suggested by anyone that a move from short-haul only to mixed flying involved her overall in more hours at work or more hours away from home. If there is a distinction it is in the length and frequency of time away from home: longer but less frequent trips in long-haul compared to shorter and more frequent trips in short haul. There is nothing before me to suggest how it is that in those circumstances longer but less frequent trips away from home put her at a substantial disadvantage in comparison with her previous short-haul only flying. Notably in her witness statement she identifies periods of seven days at a time when she would have been working and her partner responsible for childcare even at a time when she was exclusively flying short-haul. It has not been suggested that mixed-flying would mean periods of longer than seven days away from home.

[302]Perhaps the most telling point is in the final sentences I have cited from the first claimant’s witness statement: “This flexibility with the roster bidding meant I could tailor my roster to what worked best for us. Organising childcare as cabin crew was an ongoing challenge, but I made it work with meticulous preplanning.”

[303]It has always been clear that “organising childcare as cabin crew was an ongoing challenge”, whether doing mixed flying or confined to short haul or long haul only. I think I can safely say that it would not be possible to be a solo carer for a child and fly as cabin crew under either the old or new arrangements, not least because of the possibility of unexpected disruption leaving you stranded away from home. That is not to say that you needed a partner, but it is to say that you always needed some way of sharing childcare with someone else, even if only on an emergency basis. A second point that follows from this is that even at the best of times the first claimant was dependent on roster bidding, and it seemed her partner was equally dependent on swaps to organise his shifts. The first claimant does not address bidding or swaps at all in considering the new arrangements.

[304]The first claimant has not demonstrated that mixed flying as opposed to shorthaul only flying caused her an individual disadvantage. That is, perhaps, hardly surprising in circumstances where she did not give any evidence to that effect.

[305]As for group disadvantage, I do not consider the claimant has demonstrated that either. As previously identified, group disadvantage is said to follow from and be dependent on the establishment of individual disadvantage in the claimants’ cases. It could be said that there are as many ways of arranging childcare as there are children and caregivers. The second claimant, at least according to her case as originally plead (which has never been amended or withdrawn on this point, although it is no longer pursued), considered long-haul flying to be to her advantage so far as childcare was concerned. That seems from her evidence to have been because of the minimum base turnaround days that went with the longer continuous periods away from home. It seems (although for reasons I have previously explained this was not fully explored) that the other side of the coin to “longer continuous periods away from home” was that long-haul flying also involved longer continuous periods at home by way of minimum base turnaround. That suited the second claimant’s childcare arrangements. One is not obviously better or worse for women with childcare responsibilities than the other. Both come with difficulties and opportunities that will suit some more than others depending on their personal circumstances and how they chose to manage childcare.

[306]This PCP was not indirect sex discrimination for the first claimant because(i) she has not demonstrated that it involved longer continuous periods away from home (which is the only point said to be to her disadvantage) and

(ii) if that is assumed she has not demonstrated either individual or group disadvantage in respect of the mixed flying PCP.

[307]Beyond that I am bound to note that the respondents are correct to submit that “There was in any event no immediate risk of [the first claimant] being required to undertake mixed flying – she was on long-term sick leave (from which she did not in the event recover until mid-2021) and would have needed to undertake the trial period which she could defer until the late summer 2021.” They are also right to point out that if this was a disadvantage to the claimant I was substantially ameliorated by various measures undertaken by the respondent such as opportunities for bidding, swapping and the new arrangements under the RMA for protected days. The first claimant has not addressed the respondent’s suggestion that given that short-haul flying was generally less popular than long-haul the claimant may have only had to do minimal long-haul flying – just enough to maintain recency. That is all the more reason why the alleged disadvantage now identified should have been expressed at the earliest possible stage, so that these matters could have properly been explored during the hearing. PCP2 – the unclear scheduling PCP

[308]PCP2 is “the requirement that all cabin crew agree to be bound by a new and as yet unclear scheduling agreement”. The respondent accepts that this PCP was applied, but for the same reason given above they say it was only applied to the Legacy Fleets. The claimants accept it was only applied to the Legacy Fleets.

[309]Assessment of this PCP has to be done on the basis it is stated – simply a new and unclear scheduling agreement that may or may not have been better for the claimants than the one it replaced. The point here is the uncertainty, not what the new scheduling arrangements actually ended up being or were feared to be.

[310]Mr Engelhardt-Sprack said: “The Unclear Scheduling PCP placed both Cs at particular disadvantages … because their availability for work would be fundamentally uncertain and far less predictable as a result. At the time when the PCPs were applied (Sept 2020), Cs did not even have a basis for predicting how often, and for how long, they would be available to carry out childcare – such as a definite Scheduling Agreement or a commitment from BA about certain types of flying, eg. in the short-term. That this ‘unpredictability’ constitutes a disadvantage for those with childcare is recognised in Dobson itself.”

[311]The reference to Dobson is to paragraph 50 of Dobson where Chaudhury P says (emphasis added): “The childcare disparity means that women are more likely to find it difficult to work certain hours (e.g. nights) or changeable hours (where the changes are dictated by the employer) than men because of childcare responsibilities.

[312]I would very much have preferred this point to be identified up front as an aspect of the childcare disparity of which I was to take judicial notice than raised for the first time in closing submissions.

[313]It seems clear to me that the concept of “changeable hours (where the changes are dictated by the employer)” is not quite the kind of uncertainty that applied in this case. Subject to bidding and swaps, if we are talking about the employer’s discretion on rostering then the claimants had always been subject to “changeable hours”, and apparently worked without that causing them difficulty. For the first claimant, she would only ever have had ten days notice of her rostered period. Both claimants were subject to periods of standby during which they may or may not have been called upon by the respondent to fly out of the country. All of that seems to have been accepted as being an inherent part of work as cabin crew, and has never been objected to or disputed. Following the introduction of mixed flying and the new shift patterns they would both continue to be subject to “changeable hours” in that (again subject to bidding and swaps) exactly what work they would be doing in a duty period was at the respondent’s discretion, and was likely to include periods on standby. The first claimant would have the advantage of increased notice of this, which may go some way towards helping with any uncertainty.

[314]What was uncertain here was not exactly what work the claimants would be doing at any particular time. That had always been subject to rostering at their employer’s discretion and would continue to be so. The longer notice period for the first claimant improved matters for her. What was uncertain was the principles that would apply to their scheduling or rostering, and that is not what Choudhury P is addressing in Dobson.

[315]Except for the first claimant’s reference to bidding (which continued under the new arrangements) neither claimant gave evidence that they were under the old arrangements subject to rosters they could know ahead of publication. It is not the case that, for instance, under the old arrangements they knew they would never have to work on a Thursday.

[316]Stepping back to consider the position at the time, the claimants knew at the time the new contracts were offered to them that they would be rostered in periods of 21/42 and 21/21 respectively. Until the rosters were published they did not know exactly what duties they would be given, but both knew that they would be limited to their former short-haul and long-haul only work pending training on new aircraft types, which they could apply to defer. So for the near future it was bound to be short-haul or long-haul only. The scheduling arrangements would dictate such things as minimum base turnaround and the number of days they could be put on standby for. But ultimately they were in the same situation as before. Subject to bidding and swapping (which remained possible and perhaps had been enhanced) they would not know until their roster was published what work they would be doing during their “on” period. They would then have to manage their childcare responsibilities around that roster. Any problem with uncertainty connected to childcare was inherent in the roster system and not to do with not knowing the particular form of the scheduling agreement. Subject to bidding (which continued), holidays and other booked days off (arguably enhanced under the new arrangements) the claimants were as limited in their ability to plan ahead for child care under the old scheduling agreement as they were with a “new and unclear” scheduling agreement.

[317]Some of this appears to relate back to the group disadvantages identified at para 25.2 in the list of issues onwards, but there are many problems with these. As regards 25.2, neither claimant gave any evidence that they required more time to consider the impact of the new contracts on their caring responsibilities. The first claimant was reluctant to commit to an unknown new scheduling agreement but that was nothing to do with requiring more time. The second claimant (on her case) was willing to and did sign up to the new contract in the time the respondent allowed.

[318]Para 25.3 in the list of issues is something of a puzzle and I wonder if it is set out correctly, but neither side sought to change it during the hearing. It appears to suggest that the claimants and women in general had less understanding of the new terms and conditions due to being distracted by caring responsibilities, but if so neither claimant gave evidence that they did not understand the new terms and conditions nor that caring responsibilities inhibited their understanding of the new terms and conditions. The problem identified by both claimants was that elements of the new terms and conditions were not fully set out. In the first claimant’s case, the scheduling agreement was unknown and in the second claimant’s case she considered herself unable to calculate her new pay rate. As the respondent points out, there is nothing to suggest that men had any better understanding of these points than women did.

[319]Para 25.4 of the list of issues, and similarly para 25.5, do not seem to apply where the problem is that the scheduling arrangements are unknown, as opposed to where they contain particular matters that women may be less able to comply with.

[320]I do not consider that either group or individual disadvantage have been shown by the claimants in respect of this PCP. PCP3 – the ballot PCP

[321]The ballot PCP is “The requirement that all cabin crew accept the terms of the ballot or be dismissed.”

[322]Presumably given the first claimant’s evidence that she had voted in favour of the RMA in the ballot this PCP was limited by Mr Engelhardt-Sprack to the second claimant only. In his closing submissions he said: “The Ballot PCP placed TDM at the disadvantage that she was being asked to accept a collective ballot which caused her, as an individual, the problems set out above. They were more likely to face substantial difficulties under the new arrangements, whether or not the majority of colleagues accepted such arrangements.”

[323]This PCP is accepted by the respondent, but again on the basis that it only applied to the Legacy Fleets. It is accepted by the claimants that it only applied to the Legacy Fleets.

[324]The “problems set out above” could only be the problems in relation to the unclear scheduling PCP since those were the only “problems set out above” in Mr Engelhardt-Sprack’s submissions that affected the second claimant. However, Mr Engelhardt-Sprack indicated that in saying that he had in mind also any other difficulties that may be caused to the second claimant by other PCPs. Those will, of course, need to be assessed at the time I come to the relevant PCPs, but if those PCPs do not give rise to individual disadvantage I do not see how the ballot PCP gives rise to individual disadvantage for the second claimant, particularly in circumstances where her evidence was that she did accept (albeit perhaps reluctantly) the terms of the ballot. PCP4 – the pay PCP

[325]This PCP is “The requirement that all cabin crew be paid at new overall pay levels, lower than previous Eurofleet and Worldwide fleet pay levels, but not lower than previous Mixed Fleet pay levels.” The respondents accept that this PCP was applied but “not in the manner for which the claimants contend”. This appears to be a reference to it (on their case) only applying to the Legacy Fleets.

[326]This PCP is of a somewhat different nature to the others. The disadvantage suffered by women in general (and the claimants in particular) is said to be financial rather than in relation to childcare arrangements.

[327]This is how Mr Engelhardt-Sprack describes the point in his closing submissions: “The Pay PCP placed both Cs at the particular disadvantage that their income relative to the cost of essentials would go down as compared with men, who disproportionately earn more and so can more easily pay for the same essentials.”

[328]This is a somewhat difficult PCP, and seems to be a novel attempt to make the particular amount of any pay reduction a matter of indirect sex discrimination.

[329]The claimants’ argument is that in general and across cabin crew women are more likely to work part-time than men. This is not in dispute, either (for the general proposition) by taking judicial notice in the manner described in the list of issues, or (specifically for cabin crew) by relying on statistics produced.

[330]Setting aside any question of equal pay for equal work, or any question of “women’s work” having been historically underpaid, the claimants say that this means that even in occupations where there is no legal issue with equal pay (such as the respondent’s cabin crew, where there is no argument that men are better paid for the same work or work of equal value than women are) women will tend to earn less, in absolute terms, than men. This is a function of the fact that they are more likely to work part-time, and the application of the pro-rata principle will mean that part-time workers have lower absolute earnings. To put it another way, part-time workers work less in absolute terms and so are paid less in absolute terms, and this means that across the respondent’s cabin crew women will tend to earn less than men as they make up the majority of parttime employees. That much is accepted by the respondent.

[331]What, then, of what happened with pay on the respondent’s reorganisation? While it was a bit more complicated than this, particularly once allowances were taken into account, argument proceeded on the basis that the Legacy Fleets received an across the board 15% pay decrease, based on the 85% pay protection arrangement. Part-time women, part-time men, full time women and full time men in the Legacy Fleets all saw (or would have seen if they continued in employment) their pay cut by 15%.

[332]The novel argument in this case is that every individual has basic living expenses, described by Mr Engelhardt-Sprack in his submissions as “essentials”. A “floor” of basic earnings will be necessary to meet this. A woman working, say, 50% part-time who suffers a pay cut of 15% will be more likely to meet or approach that floor than a man working full time. The full time man earns more to start with, so has greater scope for pay cuts before they get in difficulty in meeting financial “essentials”.

[333]As with a number of the PCPs, whatever the rights and wrongs of this it flounders at least for the first claimant on the question of her evidence. Mr Engelhardt-Sprack accepts that the first claimant gave no evidence at all of what her “essentials” were nor of any financial difficulty caused by a pay cut. She does make a passing reference to financial hardship in her statement, but this is connected with the complete loss of her job, not any pay cut. Even if group disadvantage is made out, the first claimant cannot succeed in this claim as there is no evidence of the same individual disadvantage.

[334]In contrast, the second claimant (whose concerns always seem to have been more closely connected with pay than with other working arrangements) says: “On 29 June 2020 … [the respondent’s CEO] stated that the Mixed Fleet package remained the same and, in some respects, better than before. In my mind he was confirming that I would be worse off. This was because my base pay was around £27,000 per year. According to [the CEO] I would be taking a pay cut of around £5,500. He said, “None of our Worldwide or Euro fleet crew are facing catastrophic cuts to pay.” His delusive statement was sent out to the entire company planting seeds of animosity targeted towards the older cabin crew community. I was a typical British Airways Euro fleet and Worldwide crew member who was a part-time working mother working hard to balance the challenges of life, family, work and health. This £5,500 was catastrophic to me, as I base my monthly outgoings on my contractual basic salary, i.e. water rates, Council Tax, electricity, heating, mortgage, food, bills, clothes, etc. This large reduction would impact on my future pension. I would have to find additional work to make up the shortfall, which would affect my worklife balance and my health as an older female.”

[335]This was at a time when the pay protection was proposed to be 80%, hence the second claimant’s reference to a £5,500 reduction, being (approximately) 20% of £27,000. The second claimant’s position was that she was solely responsible for the monthly outgoings she refers to.

[336]I am concerned that this argument may result in some sort of judicial oversight of wages or wage reductions or increases. It is likely to be quite common that women in any particular workforce make up a higher proportion of part-time workers than men do, so the basic argument of a pay reduction possibly amounting to indirect sex discrimination might apply across many different workplaces, and it is only a small extension of the argument to suggest that, at a time of rising prices for “essentials”, an insufficient pay rise to meet the cost of those essentials might be indirect sex discrimination. If that is the logic that applies in a case of indirect sex discrimination then of course I will apply it, but it did give pause for thought since such judicial regulation of salaries seemed, on the face of it, undesirable outside the established confines of the national minimum wage and equal pay.

[337]Mr Carr made a number of points in response to that, including that the logical obverse of the claimants’ position was that in mixed sex couples (which both claimants were part of) the man might more often be the higher earner (a logical extension of the proposition that women are more likely to work part time than men) and therefore where household resources were pooled bear a larger share of the costs of the “essentials” and therefore be more or at least as affected by any pay cut. Mr Engelhardt-Sprack accepted this as a matter of logic, and accepted that in fact for both claimants their male partner or husband earned more than they did, but he said this was not an answer to the indirect sex discrimination argument since women should have the opportunity to meet the cost of essentials themselves without requiring a man to meet those costs and not all households operated on the basis of a combined income.

[338]To repeat Mr Engelhardt-Sprack’s analysis of the point: “The Pay PCP placed both Cs at the particular disadvantage … that their income relative to the cost of essentials would go down as compared with men, who disproportionately earn more and so can more easily pay for the same essentials.”

[339]As previously mentioned, this statement of the individual disadvantage also stood a statement of the group disadvantage.

[340]The first element of this is that the claimants’ (and by extension disproportionately women as a group) “income relative to the cost of essentials” would go down. The same can be said of men or full-time workers receiving a pay cut. Anyone whose pay is cut will see a reduction in their “income relative to the costs of essentials”. So on Mr Engelhardt-Sprack’s analysis what makes the difference is the second element: full-time workers can “more easily pay for the same essentials”.

[341]There are a number of problems with this. First of all, we do not know what the “essentials” are or what income floor Mr Engelhardt-Sprack has in mind. Second, what is “essential” will vary from person to person or household to household. It is common for people’s living expenses to rise in proportion to their income. For instance, a greater income may enable a larger home with which would come a larger mortgage or rent and which then raises the individual or household expenses on “essentials”. That is reflected in the second claimant’s statement that she would: “base my monthly outgoings on my contractual basic salary, i.e. water rates, Council Tax, electricity, heating, mortgage, food, bills, clothes”. That is the way most people’s finances would work, either on an individual or household basis. With respect to the second claimant, I have not been told her personal circumstances. The first five items she mentions are all related to the cost of running a home. I do not know and have not been told whether she and her family live in a grand or very basic property. Food, bills and clothes might all be categorised as “essentials” but not being able to keep up your previous lifestyle on having a pay cut is not the same as being unable to afford the bare essentials of life.

[342]So the second claimant’s claim in respect of this failed on the basis of the evidence she has given. While she may have had to cut back on her previous expenses, there is nothing to suggest one way or another whether these were “essentials” in the sense suggested by Mr Englehardt-Sprack, nor that she was not able to meet any “essential” costs.

[343]But I think beyond this there is a broader point. Everyone suffers when there is a pay cut, and to some degree everyone suffers where their earnings rise less than inflation. There is no proper basis on which to distinguish between men and women for this nor between part-time and full time workers, and it is invidious to do so. PCP5 – the shift PCP

[344]PCP5 is “The requirement that all cabin crew be required to work under shift patterns including both(i) 33% with 21 days on with 42 days off and/or

(ii) 50% with 21 days on with 21 days off, but including neither (i) 33% with 14 days on and 28 days off nor (ii) 50% with 28 days on and 28 days off.”

[345]On the face of it this PCP was not applied, since it does not account for the possibility of full-time work. However, the parties agreed that it should be read as applicable to part-time working arrangements only. The respondent accepts that this PCP was applied but should be read as two separate PCPs – one applying to those on 33% contracts within Euro Fleet and the other applicable to those in Legacy Fleets on 50% contracts. No-one else had their shift pattern changed.

[346]Mr Engelhardt-Sprack says: “The Shifts PCP placed TD at particular disadvantages … because there would be a longer continuous period (21 days instead of 14 days) where she could not be confident she would be available to carry out childcare. … the longer the period TD is away, the harder to ensure childcare is provided by someone other than TD (given that her partner had particular shift patterns), hence the particular disadvantage. To use a phrase from the colloquial, ‘the longer you give it, the more can go wrong’. Again, the fact that this disproportionately impacts women follows from the childcare disparity.”

[347]Many of the problems with the mixed flying PCP also apply to the shifts PCP. I had identified possible problems with this PCP with Mr Engelhardt-Sprack in the second week of the hearing, and in particular how it could be to the disadvantage of both claimants to be working 21 days on when they had previously worked 14 days on and 28 days on respectively. There was no answer to this through the many subsequent iterations of the list of issues, and in closing submissions Mr Engelhardt-Sprack identified a difficulty that had never previously been identified, which seemed only to apply to the first claimant and on which she had given no evidence.

[348]This PCP is no longer pursued (as a separate PCP) for the second claimant.

[349]As with the mixed flying PCP, in the absence of any explicit evidence from the first claimant it was unclear what this really meant or whether there was a group or individual disadvantage at all.

[350]In principle I accept that for the first claimant there was a longer continuous period when she could not be confident that she would be available to carry out childcare: 21 days rather than 14 days. Of course, this does not mean that the claimant would be actually working or out of the country for a continuous period of 21 days. She would have been scheduled for rest days at home. As previously identified, there can be disruption in passenger aviation and she could not be wholly confident that the roster she was given would be followed. For scheduled rest days during an “on” period, if she was expecting to be solely responsible for childcare on that day she would always need some sort of emergency back-up plan. However, while the focus of argument was on the “on” shift period the PCP is defined by reference to the shift pattern as a whole, so it could equally be said that that this change to her shift pattern gave the claimant a longer continuous period when she could be confident she would be available to carry out childcare (42 days as opposed to 28).

[351]Mr Engelhardt-Sprack develops the “logical problem” that the new shift pattern (in particular the extended “on” period) presented, and how it gave rise to a particular disadvantage. This is “the longer the period TD is away, the harder it is to ensure childcare is provided by someone other than TD (given that her partner had particular shift patterns)”. But it does not follow from a longer “on” period that she is away from home for longer. The “on” period is the period during which she is to be rostered, including rest days or, for instance, standby days. The “on” period says nothing about how long the first claimant is away from home at any particular time. Having a long period away from home at any one time is addressed by the mixed flying PCP.

[352]As for “the longer the period TD is away, the harder it is to ensure childcare is provided by someone other than TD”, if that is intended to relate to the extended “on” period, rather than single continuous periods away (which, if they exist, relate to mixed flying not to her shift pattern) I do not see that it follows at all. The first claimant never gave evidence to that effect. It is true that she was worried about how the longer “on” period would sync with her partner’s shift pattern, but her evidence was also that she had never investigated that and did not know if it would be worse or better for her. Saying “the longer you give it, the more can go wrong” does not add anything. The best interpretation I can give to this is that it is said to be more difficult to plan childcare along longer periods of time, but the first claimant never gave evidence to that effect and it might equally be argued that planning across longer periods of time is easier as it is easier to plan further ahead rather than at short notice. (Although not part of the PCP, one matter the claimant did not mention is that she would be given longer notice of rosters under the new contract than under her old contract.)

[353]To return to an old theme, I have no evidence as to what the claimant’s childcare arrangements were at the time when she was in Cheshire, so could not properly conclude that having to plan further ahead gave rise to any individual disadvantage, nor do I have any evidence that planning on the basis of a 21- day on period may give rise to difficulties generally for women with childcare responsibilities in circumstances where the second claimant apparently preferred a 28-day on period for the purposes of her childcare responsibilities and the extended 21-day on period came with an extended 42-day off period. PCP6 – the unequivocal acceptance PCP

[354]PCP6 is “The requirement that all cabin crew agree within 4 days (for both Cs), alternatively before the extended deadline of no later than 31 October 2020 (C1), to accept unequivocally, the new or varied contract.” The respondent says that cannot properly include “unequivocally” which was never previously pleaded. I do not need to decide that for the purposes of this decision. The respondent accepts that (without “unequivocally”) this was applied across the Legacy Fleets and the claimants accept that it was limited to the Legacy Fleets.

[355]The answer to this lies on points already made. Neither claimant has said that they were not able to or faced any particular difficulties in making a decision in the time they were given. The second claimant accepted within the original deadline. The first claimant did not opt one way or the other even given her extended deadline. Both complained to some extent that arrangements under the new contract were unclear, but it was a lack of clarity that was the point that was significant to them, not the deadline they were given. The claimants have not established either group or individual disadvantage in this case. Indirect sex discrimination - combining the PCPs

[356]If individual PCPs do not create group or individual disadvantage, they may nevertheless do so in combination and indirect discrimination may be demonstrated in that way.

[357]It has also been the claimants’ case since at least the first re-draft of the list of issues that they rely on the PCPs individually and in combination.

[358]While always acknowledging that PCPs can be combined, I have been clear from the start that if Mr Engelhardt-Sprack is asking for PCPs to be combined he must make tell me what PCPs are to be combined. I will not in this decision be running through countless combinations of PCPs to see whether or not they cause a group or individual disadvantage.

[359]The outcome of this by the time of closing submissions is Mr Engelhardt-Sprack inviting me to combine all the PCPs found to exist (and all have been found to exist). He then relies on statistics as showing that the combination of PCPs creates a group disadvantage, without the need to explain how that ground disadvantage arises (Essop). This requires consideration of the group disadvantage of dismissal.

[360]It is unfortunately the case that even if this does establish a group disadvantage there remain problems with the evidence given by the claimants. For instance, the second claimant is clear that “BA dismissed me because I asked for more information about the new terms and conditions of employment specific to me.” This has sometimes been paraphrased as being dismissed for having protested. So even if the combination of PCPs shows a group disadvantage the second claimant’s position is not that she was dismissed because of the application of a combination of PCPs, but because she asked for more information about the new terms and conditions of employment, which is neither a PCP nor a combination of PCPs.

[361]There is a second problem, which is that in Essop there was a very direct link between the PCP alleged and the statistics. The PCP in that case was having to pass an exam or test, and the statistics involved were the proportions of people passing or failing that test. In this case the claimants invite me to look at the sex or gender make-up of cabin crew before the suggestion of any reorganisation and then look at the sex or gender make-up of cabin crew after the reorganisation, before concluding that a disparity shows group disadvantage in arising from the a combination of the PCPs alleged. But this “before” and “after” picture covers eight months, from April 2020 to December 2020 and it seems difficult to say that the difference in the before and after picture is explained by the application of a combination of six PCPs. This is particularly so when those categorised as having been “dismissed” may have taken voluntary redundancy for many different reasons of their own that have nothing to do with any PCP, and in the midst of the Covid-19 pandemic when many people were having to make very difficult decisions in a highly unstable and uncertain environment.

[362]If this is the analysis I am being asked to undertake then it seems to me that it has to be undertaken on the basis that the relevant “pool” is Legacy Fleets only. In general the respondent contents for a more limited pool than all cabin crew, and for three of the PCPs the claimants agree with the respondent that the pool has to be Legacy Fleets only. If I am to assess the overall effect of the PCPs then it must be Legacy Fleet only, since at least half of the PCPs were not applied to cabin crew as a whole. Statistics

[363]First, I note and accept the claimants’ proposition that: “There is direct statistical evidence only for one of the alleged particular disadvantages: dismissal. The others must be addressed through Cs’ own evidence and the application of the matters for which Cs seek judicial notice.” That is the basis on which I have addressed the other alleged particular disadvantages, and how I will address the statistics.

[364]Mr Engelhardt-Sprack continues, saying: “Cs submit that being dismissed as a clicker and/or non-clicker is effectively a proxy for being subjected to the particular disadvantage of dismissal because of the application of the PCPs on which Cs rely, or as many of them are found to have been PCPs.”

[365]It is correct to say that the claimants were respectively a non-clicker and a clicker and that they were dismissed. As to whether they were dismissed “because of the application of the PCPs”, that is a more complex question, and as already identified it is at least the second claimant’s primary contention that the reason for her dismissal was because she had asked for more information, not because of any PCP. I acknowledge that if dismissal is a matter of indirect discrimination it is sufficient for discrimination to be a material (or more than trivial) cause of the dismissal. It does not have to be the sole or even the main cause, but the second claimant’s insistence in her evidence that there was a different reason for her dismissal does not sit well with Mr Engelhardt-Sprack’s submission that her dismissal can be taken as being a result of the application of multiple PCPs.

[366]Mr Engelhardt-Sprack goes on to say that the mixed flying PCP started on 28 April 2020 (when it was first put forward in a letter to the trade union) and that “C’s primary case is that the Mixed Flying PCP (relied on in its own right by TD more than TDM) was applied to TD and all comparators over a longer period, commencing 28.04.20 and ending 31.10.20.” The significance for the claimants is that “as it was expressed as a core requirement since 28.04.20 of the new terms and conditions, in response to which many colleagues would have made the decision to opt for voluntary redundancy, a type of dismissal.”

[367]I accept that those who opted for voluntary redundancy would have known at the time they opted for voluntary redundancy that mixed flying was a core part of the respondent’s plan for the future, but that is far from saying that it was their reason for opting for voluntary redundancy. Both claimants have struggled to articulate what their particular difficulties were with mixed flying, and there has really been no attempt to establish any sort of group disadvantage connected with mixed flying for those previously on Worldwide Fleet. Not only is it not possible to say that the mixed flying PCP was responsible for “many” Legacy Fleet members of staff opting for voluntary redundancy (and thereby being dismissed), the claimants have not demonstrated that any member of the Legacy Fleet (including themselves) had any particular difficulty with mixed flying.

[368]Beyond that, to consider Mr Engelhardt-Sprack’s submission I need to consider whether the mixed flying PCP was applied on 28 April 2020 (at the point of notification to the trade union) or in September 2020 (at the point the claimants had to elect to remain or leave). The mixed flying PCP is “The requirement that all cabin crew do mixed flying – i.e. flying which includes both longhaul and shorthaul flights.”

[369]I think that it was only in these closing submissions that it was for the first time suggested that the mixed flying PCP applied from 28 April 2020. If it really is the claimants’ case that it was applied at this point then it would seem to give rise to time limit issues which neither party has addressed.

[370]The terms of the April notification to the trade union was: “We are proposing to remove the existing fleet structure and create a simple, single group of cabin crew, with a single set of terms and conditions and operating to higher levels of flexibility. Those terms will include temporary layoff or short-time arrangements and a harmonised pay and allowance structure. We are proposing that any new contracts would have new policies including on disciplinary and grievance procedures, performance and absence management which would be non-contractual. We are also proposing some changes to the Redeployment Agreement ... The single group of cabin crew would undertake both long-haul and short-haul flying to a flexible scheduling arrangement and at a competitive cost base.”

[371]I have also looked back to the claimants’ particulars of claim to see when it was said that this PCP applied. No date is given but as with PCP1 as it is now understood, the PCPs are framed as a “requirement that cabin crew …”.

[372]So I think the point is clear. In April 2020 there was explicitly a “proposal”. By the September 2020 options exercise this was now a “requirement” for those who wanted to continue in employment, albeit a requirement that may for some be deferred for a considerable period pending training on different aircraft types. There is no proper basis for Mr Engelhardt-Sprack to say this PCP applied from April 2020.

[373]Mr Engelhardt-Sprack moves on to look at the statistical breakdown of the whole of cabin crew at 28 April 2020, before there had been the first mention of Legacy Fleets moving to mixed flying.

[374]If this is to be used as support for the idea that female cabin crew were put at a disadvantage by a combination of PCPs including mixed flying, then surely it can only be the Legacy Fleet statistics that are relevant. Mixed Fleet were already doing mixed flying and seem highly unlikely to have opted for voluntary redundancy on account of PCPs including a requirement for mixed flying. He then gives the statistics for dismissed “clickers” and “non-clickers”, confining himself to Legacy Fleet for those purposes. Finally there is the whole population of cabin crew in December 2020.

[375]The first elements of Mr Engelhardt-Sprack’s analysis depend on the mixed flying PCP applying from April 2020 and so do not need to be considered by me.

[376]The relevant analysis starts at para 114(iii) of Mr Engelhardt-Sprack’s written submissions. He compares male vs female members (or former members of) Worldwide Fleet, identifying that as at 31 December 2020 1,393 of 3,363 former Worldwide Fleet cabin crew remaining in employment (on Heathrow Fleet) were men (41.17% of the former Worldwide Fleet population). I am not sure where Mr Engelhardt-Sprack got the figure of 1,393 from as it does not appear in the tables cited in his closing submissions. He contrasts this with the proportion of Worldwide Fleet dismissed as clickers or non-clickers, where they made up 10 of the 35 dismissed, or 28.6%, concluding that “Male WW Cabin Crew, as a group, were disproportionately not dismissed as ‘clickers’/’non-clickers’, and their female counterparts were, of which TDM was one.”

[377]Mr Carr suggests that across his statistical analysis Mr Engelhardt-Sprack does not adopt a consistent approach and picks whatever analysis may benefit his clients. Mr Carr says that the correct pool to look at for statistical purposes is across the whole of the Legacy Fleets, not Worldwide Fleet in isolation. I think this is correct when none of the PCPs in issue are said to apply only to Worldwide Fleet. Each PCP as a minimum applied across the Legacy Fleets as a whole. Mr Carr says that across the whole of the Legacy Fleets, at the point of clicking or non-clicking, 21 women out of 2620 were dismissed (0.8%) and for men the figures were 16 out of 1727 (0.9%) making a difference of 0.1 percentage point, and that that does not suggest any group disadvantage of the kind required by the Equality Act.

[378]I prefer Mr Carr’s analysis to that of Mr Engelhardt-Sprack. If it is to be taken that dismissal on clicking or non-clicking is indicative of being disadvantaged by the PCPs then it must be correct to analyse based on the proportion of women who can or cannot comply and the proportion of men who can or cannot comply, and that is what Mr Carr does. That analysis does not show a significant disadvantage for women.

[379]Beyond that, Mr Engelhardt-Sprack has the difficulty that even if group disadvantage is shown at this point the second claimant’s position is that she could comply and was willing to comply with the new working arrangements. If so she has shown no individual disadvantage.

[380]His final statistical comparison involves looking at the situation across the entire population of cabin crew, but as I have already identified that cannot be right when more than half of the PCPs are accepted to apply only to the Legacy Fleets. Other matters

[381]Mr Englehardt-Sprack’s position was that disadvantages other that dismissal “must be addressed through Cs’ own evidence and the application of the matters for which Cs seek judicial notice”. I do not see that there is any room for such a finding given my conclusions on the individual application of the PCPs. For example, given my findings in respect of the mixed flying PCP and shifts PCP individually I do not see how on the facts of this case that can be established a disadvantage by the two of them in combination, and as previously expressed, without a positive indication from the claimants of the combination(s) they wish me to consider I am unwilling to work through every different possible combination in search of a possible disadvantage. Conclusion on indirect sex discrimination

[382]The claimants claims of indirect sex discrimination are dismissed. Indirect age discrimination – individual PCPs

[383]The same PCPs are relied upon for indirect age discrimination as for indirect sex discrimination. Reference should therefore be had to my section on indirect sex discrimination for the definition of the PCP in question and whether it is accepted by the respondent that that PCP applied.

[384]The question of group and individual disadvantage is a different matter when assessed by reference to age rather than sex, though much of what has been said in the context of indirect sex discrimination may still apply. The claimants make a comparison with, alternatively, all cabin crew aged 39 or under or Legacy Fleet cabin crew aged 39 or under. Both claimants are aged over 39. Statistics show the Mixed Fleet to be, in general, made up of younger people than the Legacy Fleets. This is hardly surprising since the Legacy Fleets were closed to new entrants in 2010, so cannot have anyone younger than approximately 29 in them. Both fleets contained a mixture of those aged over and under 39 but the Legacy Fleet crew tended to be older than the Mixed Fleet crew.

[385]There are two matters that are said to indicate group disadvantage: “Less favourable working conditions were imposed on them, whereas cabin crew aged 39 and under were more likely to work on terms no less favourable than previously (i.e. Mixed Fleet) and in most instances more favourable than previously.” and “Dismissal”

[386]Mr Engelhardt-Sprack says of the first alleged group disadvantage: “the disadvantages other than dismissal should be fairly self-explanatory: they are functions of R’s conduct”. As Mr Carr points out, there is no reliance on any matter of judicial notice in respect of indirect age discrimination.

[387]Exactly how to approach the first alleged group disadvantage is somewhat difficult. Unlike with the indirect sex discrimination case the problem here is not the new terms and conditions (or lack of clarity in them, or lower pay) themselves, but the fact that for employees formerly on the Legacy Fleet they are worse than before. Mr Carr maintains his position from the indirect sex discrimination claims that the only logical pool is that of the Legacy Fleet, not cabin crew as a whole. I have not needed to address that point in the context of indirect sex discrimination beyond noting that Mr Engelhardt-Sprack accepted that PCPs 2, 3 and 6 applied only to the Legacy Fleets, and that must also apply in respect of the indirect age discrimination claims. Where the pool is restricted to the Legacy Fleets there is clearly no indirect age discrimination within the Legacy Fleets since, as Mr Carr says: “There is no evidence which even suggests, never mind establishes, that within legacy fleets, those aged over 39 were put to a particular disadvantage when compared to those who were that age or younger.”

[388]There is no indirect age discrimination in respect of PCPs 2, 3 and 6, which applied only to the Legacy Fleets. PCPs 1, 4 & 5 – the mixed flying, pay and shift PCPs - the pool

[389]In the context of PCP1 for indirect sex discrimination Mr Carr argued: “[Mixed Fleet] crew are in a wholly different position having been recruited to do mixed flying and having done so since as far back as 2010. It cannot sensibly be said that they were required to do something that they were already doing and for which they were originally recruited. They were not being required to change the way in which they worked – legacy crew were. In order properly to test the effect of the PCP it is therefore necessary to consider its effect on legacy crew only ...”

[390]S23 of the Equality Act 2010 requires no material difference in circumstances across the pool. In Essop it was said that “identifying the PCP will also identify the pool for comparison” and more broadly guidance was given that the pool should include those affected by the PCP and exclude those not affected by it. I thus need to focus on the particular PCP alleged.

[391]For PCP1, this is “The requirement that all cabin crew do mixed flying – i.e. flying which includes both longhaul and shorthaul flights.” This is a requirement that cut across all fleets. Mr Carr’s submission was effectively that Mixed Fleet should not be included in the PCP since there was no change for them and they were already doing this.

[392]This is not an easy matter, but it seems to me that the correct pool should be the whole of cabin crew, since all were now required to do mixed flying and so all were subject to the PCP.

[393]PCP4 is “the requirement that all cabin crew be paid at new overall pay levels, lower than previous Eurofleet and Worldwide fleet pay levels, but not lower than previous Mixed Fleet pay levels”. PCP5 is “The requirement that all [part-time] cabin crew be required to work under shift patterns including both(i) 33% with 21 days on with 42 days off and/or

(ii) 50% with 21 days on with 21 days off, but including neither (i) 33% with 14 days on and 28 days off nor (ii) 50% with 28 days on and 28 days off.” I agree with Mr Carr that these are somewhat difficultly phrased, but as with PCP1, once established as a PCP they both clearly applied across all fleets. PCPs 1, 4 and 5 were all requirements that went with being in the Heathrow Fleet, to which all the respondent’s cabin crew were to be transferred. The correct pool for these is therefore all cabin crew, not just legacy cabin crew. PCPs 1, 4 and 5 – the first group disadvantage

[394]The first group disadvantage is said to be: “Less favourable working conditions were imposed on them, whereas cabin crew aged 39 and under were more likely to work on terms no less favourable than previously (i.e. Mixed Fleet) and in most instances more favourable than previously.”

[395]So that leads to questions as to whether mixed flying, the pay PCP and the shifts PCP amounted to less favourable working conditions to those the Legacy Fleet had enjoyed before.

[396]The first point to make is that PCP4, the pay PCP, clearly is less favourable to the Legacy Fleets. It is a pay cut.

[397]But whether mixed flying (as opposed to exclusively short-haul or long-haul) and a 21/42 or 21/21 (as opposed to 14/28 and 28/28) amounts to less favourable working conditions is much less clear. I have already expressed the difficulties I have had in assessing whether they put women (or the claimants themselves) at a disadvantage and the same must apply here. Outside of the confines of the childcare disparity it has never been argued that mixed flying is inherently worse than both exclusively short-haul and exclusively long-haul nor that 21/42 or 21/21 are inherently worse than 14/28 or 28/28. So far as the second claimant is concerned there has not even been any argument put forward as to why they are worse for her. I have rejected the first claimant’s suggestion that mixed flying and 21/42 were worse for her, and there is no suggestion of any way in which it might be worse for someone that has not been considered in the context of the indirect sex discrimination arguments.

[398]So the first claim of group disadvantage succeeds in relation to PCP4 – the pay PCP – only. As for individual disadvantage, for indirect age discrimination the point is simply that the pay was worse, not that it brought individuals close to or beyond any “essentials” threshold. It is clear that the group disadvantage would also have affected the claimants, so for the first time in this decision both group and individual disadvantage are made out – in respect of PCP4 for indirect age Indirect age discrimination - combining the PCPs

[399]As with the question of indirect sex discrimination, the claimants rely on a combination of PCPs as resulting in the particular disadvantage of dismissal. Mr Engelhardt-Sprack says “again [this] is best illustrated through the statistical evidence”.

[400]In this case, the claimants only rely on the pool of Legacy Fleet and there is nothing in Mr Engelhardt-Sprack’s submissions to suggest a group disadvantage of dismissal across the whole fleet.

[401]Mr Engelhardt-Sprack looks at the ages of cabin crew at 31 December 2020, on the basis that that shows the outcome of the overall process. He identifies from this that after the reorganisation the proportion of former Legacy Fleet crew who continued to work and were 40 or over was 92% - that is, 4027 out of 4347.

[402]Mr Engelhardt-Sprack then looks at the clickers and non-clickers who were dismissed, finding that no Legacy Fleet clickers or non-clickers under 40 were dismissed, but 47 Legacy Fleet clickers or non-clickers 40 or over were dismissed.

[403]As previously Mr Carr suggests this is the wrong approach. Adding those in employment at 31 December 2020 to those who were dismissed during the clicking/non-clicking process shows that 47/(4027+47) = 1.1% of those aged 40 or over were dismissed during the clicking/non-clicking process, compared to 0% of those aged under 40. Therefore 98.9% of those aged 40 or over could comply with the requirements and 100% of those aged under 40 could. The relevant ratio was, according to Mr Carr, 1:0.989, and that does not show substantial disadvantage.

[404]As before, Mr Carr’s is the correct approach to the statistics, and does not show any group disadvantage. PCP 4 - justification

[405]It is for the respondent to justify something that would otherwise be indirect

[406]To do so the respondent must show that its actions were in pursuit of a legitimate aim, which means first there must be a legitimate aim and secondly the respondent’s actions must be in pursuit of that, meaning there is to be a rational connection between the respondent’s actions and the legitimate aim.

[407]That alone is not sufficient. The respondent must also show that its actions were a proportionate means of meeting the legitimate aim. That means they must be appropriate and necessary.

[408]Justification is not a matter to which the range of reasonable responses test applies. Either the PCP is justified or it is not, and that is a matter to be objectively determined by the tribunal. The respondent’s position

[409]The respondent’s legitimate aim is said to be: “… the urgent need to reduce cost and operational complexity and generate revenue in order to remain competitive and survive in challenging circumstances where recovery of the airline industry was predicted to be slow and where the business had accumulated significant debts.”

[410]As regards the relevant measures, Mr Carr says: “The tripartite structure was a complex, costly and inefficient structure – not only was this shown in BA’s evidence but it is a matter of commonsense. Three fleets of people essentially doing the same job on different terms and conditions is obviously not an efficient way in which to operate. It created duplication of resources and administrative planning and rostering complexity, which was not only costly but also had a knock-on impact on customers in the form of flight delays and/or cancellations. The move to a single fleet carrying out mixed flying selfevidently simplified the structure of the IFCE and resulted in significant efficiency and cost savings which were vital given the dramatic contraction in the aviation sector. It also ensured that BA had the flexibility to deal with unexpected changes in the market. In summary:(a) Having one fleet operating on the same scheduling arrangements and trained on the same aircraft meant that crew could work across all fleets requiring fewer crew on standby on any one day (85 rather than 115) and reduced cancellations based on a lack of available trained crew ...

(b) Mixed flying allowed BA “to cover its schedule in the most productive way”. The move to mixed flying was anticipated to increase productivity, in particular by 13% for EF which had been operating at a low level ...

(c) Operating one fleet removed duplication of infrastructure, workload and teams carrying out that work, such as back-office and leadership teams ...

(d) Simplified scheduling and rostering arrangements removed the planning/scheduling burden increased operational efficiency and flexibility. In addition, the move to a single set of market rate terms and conditions was anticipated to also reduce complexity, increase efficiency and flexibility and, importantly, save cost. The reduction in basic pay for legacy fleet moving to the new fleet structure represented a significant cost saving. It was forecast that this would result in a £70 million per annum cost saving post headcount reduction. The simplified allowance structure reduced administrative complexity and saved costs. It was forecast that the simplified allowance structure would create a £40 million cost saving per annum.”

[411]I am bound to say that all of that was supported by evidence that was essentially unchallenged by the claimants. The claimants’ position

[412]At every stage of the justification process the onus is on the respondent. The claimants do not need to do anything in respect of justification but, as I indicated to Mr Engelhardt-Sprack, my consideration of justification was bound to be helped by the claimants (if they were able to do so) putting forward reasons why it was not justified, and that was likely to be particularly important in circumstances where the respondent had apparently presented compelling evidence in favour of the measure in question.

[413]I do not understand the claimants to argue that the purported legitimate aim is not capable of being or was not a legitimate aim. Their criticism spans three matters: that the PCPs (in combination or individually) were not connected to the legitimate aim, that there were alternative, less discriminatory, measures that the respondent could have taken and that the PCPs adopted were not proportionate.

[414]Each of these criticisms rests on the circumstances as they were around the time of the claimants’ dismissal or the “stay or leave” option, not what precedes that. Essentially this flows from the claimants’ argument that there was no connection between the PCPs and the legitimate aims, given their position that “BA was achieving or broadly had achieved its legitimate aim before Cs were dismissed.” I don’t suppose it is the claimants’ intention to agree with the steps taken by the respondent up to their dismissal, but the thrust of their argument on justification was not that there was no legitimate aim nor that the respondents did not need in general to adopt the kind of redundancy or reorganisation exercise it did, but that by the time of their dismissals either there was no need for further steps as the objective had been achieved or their individual dismissals was not a necessary and proportionate action in the circumstances that prevailed at the time of their dismissals.

[415]The claimants’ first point on this is that their dismissal had no rational link to the legitimate aim as the legitimate aim had been achieved by the time they were dismissed. They say (and I do not think this is disputed) that by the time they were dismissed more than 99% of cabin crew had accepted the new terms offered, “so that the restructuring was effectively complete”. The legitimate aim had been achieved and had expired. A closely connected alternative argument was that by the time it came to the claimants’ dismissals there was no need to do anything on an urgent basis. Even if the legitimate aim remained, there was no need to do anything about it at the time of the claimants’ dismissals. Beyond that, the claimants say that on the respondents argument, the RMA was sufficient to change their contracts, so no purpose was served by their dismissal. Finally (and presumably in relation to the second claimant’s claim) if acceptance was required, it was done by clicking “stay” and no further enquiry was necessary.

[416]As for the pay PCP, which is the one in issue, Mr Englehardt-Sprack says: “It is accepted that this PCP is connected with the legitimate aim, but it is fundamentally a ‘costs only’ PCP, especially given the very substantial savings to be achieved through the voluntary redundancies and ‘efficiencies’ of mixed flying. Moreover, given the ongoing availability of furlough and the possibility of a further agreement about it, it does not make sense even as a ‘costs only’ PCP. Either R could profit from an employee’s labour by requiring them to work, or it could furlough them at no cost or alternatively very little cost ...”

[417]The alternative measures suggested by the claimants are: “(i) Renegotiating terms without ‘fire and rehire’ once 80-90% of the desired headcount reduction had been achieved through voluntary redundancy, on or around 03.08.20 (ii) Better and/or further use of CJRS (iii) Allowing more time for colleagues to adjust to the likely impact on them of the changes in terms and conditions.” Discussion and conclusions

[418]Given the claimant’s apparent acceptance that the purported legitimate aim was capable of being a legitimate aim, and the concession that “this PCP is connected with the legitimate aim” I do not need to take the question of legitimate aim any further.

[419]Mr Engelhardt-Sprack says that this is a “costs only” PCP as so incapable of justification, since cost alone cannot justify discrimination.

[420]The law on “costs only” justification is best expressed by Underhill LJ in Heskett v SoS for Justice

[2020] EWCA Civ 1487

where, at para 83, he said: “… the essential question is whether the employer’s aim in acting in the way that gives rise to the discriminatory impact can fairly be described as no more than a wish to save costs. If so, the defence of justification cannot succeed. But, if not, it will be necessary to arrive at a fair characterisation of the employer’s aim taken as a whole and decide whether that aim is legitimate.”

[421]Put that way, the answer is obvious. This was part of a package of measures intended to achieve the legitimate aim in respect of cabin crew. Reduction in pay was certainly a part of that, but by no means the only part. It might be said that in any situation involving efficiencies a PCP could be selected in such a manner as to appear to be costs only, but in a case such as this there were a number of elements to the program. Overall a key part of the objective was to save money, but there was more to it than that. The respondent needed fewer staff, and crucially it needed the efficiency that came through having one fleet on one set of terms and conditions. While there were three fleets the respondent had to manage essentially three parallel workforces that worked without any reference to each other. Fleets could not mix, or at least could not easily mix, given their different scheduling arrangements. This was brought home by the evidence that so far as standby was concerned, the respondent needed each day to have three different sets of fleet on standby to cover disruption on that particular fleet. With one fleet than considerably fewer people would be required on standby since each could cover any element of the work. So I do not regard this as being a “costs only” situation. It is an aspect of a reorganisation in the interests of efficiency, an element of which was reducing pay to harmonise pay levels within the intended single fleet.

[422]Even if viewed alone this is not simply a case of cutting costs. While there was a cut in basic pay there was also a rationalisation of various allowances across the fleet in the interests of common terms and conditions and efficiency. This is not to be treated as a costs only PCP.

[423]Mr Engelhardt-Sprack’s points concerning expiry of the legitimate aim and the possibility of furlough do not seem to me to have much relevance where the PCP in question is the pay PCP, but I record the following: 423.1. I reject the idea that a legitimate aim can be said to expire once the measures undertaken are almost complete. That seems to me to be an absurd notion. If the whole point is that cabin crew need to be on the same terms and conditions, then that is not achieved by 99% being on the same terms and conditions. If this point were to be allowed I have no idea how such an exercise could be carried out in practice. Presumably individuals could hold out for so long as possible in order to bring themselves within the final 1% of acceptances, at which point there would be no need to comply with the objective and they could continue on their old terms and conditions. That is absurd and would undermine the whole scheme. 423.2. Ideas that the claimants could have continued on furlough seem to me to be equally far fetched. There has been no real identification of how that might work. Would they be on furlough on their old terms and conditions or their new ones? If the old ones, then what would then happen to them at the end of furlough. If the new ones, that runs into the problems that from the respondent’s perspective neither had accepted the new terms and conditions. Ongoing furlough would also require the consent of the trade union, and that seems to me to be highly improbable. The union and employees had been through the very difficult and painful process of negotiating the RMA and the idea that at the last minute the few remaining Legacy Fleet employees could somehow avoid its consequences by being put on furlough is extremely unlikely and impractical. 423.3. As for allowing more time to adjust to changes in terms and conditions, for the pay PCP it is not entirely clear what the claimants have in mind. Possibly the idea he would be a further level of pay protection – perhaps 100% pay protection stepping down over time to 85%. I have given an account in my findings of fact of the extended period of consultation that the respondent operated. It does not seem to me that this could be said to be rushed and to some extent seems to be longer than may have been necessary as the respondent waited for the trade unions to engage with the various proposals. We have seen that what resulted was the very carefully negotiated RMA, which itself contained a last minute increase of pay protection to 85%. It might always be argued in such situations that more time should be allowed before the changes are brought in, but it seems to me that the right balance was struck in this situation between the needs of the employer and the employees. The overwhelming endorsement of the RMA by the respondent’s workforce is an indication of this. 423.4. The final suggestion from the claimants is that it was unnecessary to dismiss them because the respondent could simply have relied on the RMA to continue their employment on varied terms. I reject that idea. It suffers from the considerable problem that the claimants’ counsel says that that is not correct as a matter of law, and would, in any event, not have any effect in relation to the pay PCP, since the pay PCP was itself part of the RMA.

[424]It is, of course, for the respondent to justify the pay PCP and prevent it being an act of unlawful age discrimination. I have concentrated in this section on the claimant’s arguments as to why it was not justified because, as previously noted, it seems to me that on the face of it the facts I have found present a compelling case that the respondent is justified in applying the pay PCP. My discussion as to whether it is a costs-only PCP identifies it as being part of a package of measures the respondent took in unprecedented times to deal with a very real threat to the sustainability of its business. My findings of fact record the (largely undisputed) steps the respondent took along the way, including consultative steps with or without trade union involvement. I have recounted that this led to a number of changes to the respondent’s proposals, including in the case of the pay PCP a move from no pay protection at all, then to pay protection at 80% and finally 85%. These matters all go into the balancing exercise that has to be undertaken by me, based on the evidence provided. Finally, I consider it to be of significance that eventually the overwhelming majority of those who remained employed in the Legacy Fleets approved the negotiated deal including the pay PCP that the claimants complained of. That approval is a factor counting towards justification in its own right, but perhaps most significantly as an indication that the vast majority of affected employees themselves considered it struck an appropriate balance in difficult circumstances.

[425]Having considered the evidence and the claimants’ criticism of the respondent’s position, I find that the pay PCP was a proportionate means of meeting a legitimate aim in respect of the claimant’s claims of indirect age discrimination.

[426]Note: on the day I gave the parties my decision and oral reasons, but prior to giving the oral reasons, I invited some further submissions from the parties on the “costs only” point to ensure I understood their position in respect of it. What is set out above represents the oral decision I gave shortly after that. In the course of those further submissions Mr Carr made a number of further points in support of the respondent’s position on this question of “costs only” justification, but giving my findings it is not necessary to address them in full. Conclusions on indirect age discrimination

[427]The claimants’ claims of indirect age discrimination are dismissed.

[428]There have been as many difficulties in understanding the claimants’ direct age discrimination claim as there have been the various indirect discrimination

[429]It has always been the claimants’ case that what happened to them was something to do with their age, but this has always floundered on the question of who their comparator is. In the first re-draft of the list of issues this was described as a hypothetical person aged 39. A persistent sticking point has been who that person is, what fleet they worked in and why they are hypothetical rather than real, when all fleets prior to the reorganisation had people aged under 39 in them.

[430]By the final list of issues, the age discrimination claim was described in the following way. Four detriments (including dismissal) were alleged. One was the dismissal of each of the claimants and the others were detriments, said to be “on 18 September 2020, offer[ing] the claimants varied terms, in particular”: 1. Lower pay than previously. 2. The requirement to work on new shift patterns with new and as yet unclear scheduling arrangements. 3. The requirement to do mixed flying.

[431]It will be apparent where the problem with the comparator lies. If they are on the Legacy Fleets then there is nothing at all to suggest that they would have been treated any differently to how the claimants were treated. If they are on the Mixed Fleet, their circumstances were different and the various individual detriments alleged (except perhaps for the “new and unclear scheduling arrangements”) would have already applied to them ever since they started flying with the respondent.

[432]As with a number of different matters previously referred to, Mr EngelhardtSprack’s solution to this problem did not arise until closing submissions. Mr Engelhardt-Sprack says “this is a case where the comparator is not directly helpful”, but if one is necessary it is someone “aged 18 to 39, of fleet ‘unknown’”. The difficulty with such a comparator is not that they are hypothetical, but that they could not possibly exist. There could never be a person working in cabin crew “of fleet unknown”. One feature of being a member of cabin crew is that you cannot do it on your own. You have to work as part of a team, and that in turn means you have to belong to a particular fleet and work to common terms with that fleet.

[433]Mr Engelhardt-Sprack said: “Cs allege that age influenced [the respondent] per se, so the hypothetical comparator is both hypothetical to the ET, but also putative to the decision-makers in any event. Cs’ allegation as formulated in the LoI is effectively that BA/MC was imagining in general terms ‘older cabin crew’ and ‘younger cabin crew’, then preferring the former and so treating the latter less favourably.”

[434]Essentially Mr Engelhardt-Sprack was relying on para 12 of Shamoon

[2003] ICR 337

, where Mummery LJ said: “… that employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was.”

[435]I have considerable misgivings about proceeding in circumstances where the comparator is less the subject of “arid and confusing disputes” and more someone who simply does not and cannot exist. It seems to me in such a situation the claim is much more likely to be one of indirect discrimination rather than direct discrimination, but I am nevertheless prepared to take up the invitation in Shamoon to “concentrate primarily on why the claimant was treated as she was”.

[436]In that context I note that everything that the claimants allege to be direct age discrimination occurred to them because they were in the Legacy Fleets. There has never been any suggestion that members of Legacy Fleets aged under 40 were treated better than the claimants, nor any suggestion that the treatment of members of Mixed Fleet depended or varied according to their age. Members of the Legacy Fleets were treated alike (subject to individual matters that may have arisen towards the end of their employment which are nothing to do with their age) and as far as I can tell, members of Mixed Fleet were treated alike without regard to their age. Matters said to be suggestive of direct age discrimination

[437]The claimants’ position on this is twofold. First, Mr Engelhardt-Sprack suggests there is reason to think the Legacy Fleets were targeted in this restructuring due to their predominantly older population. As before, that sounds more like an indirect discrimination claim to me than a direct age discrimination claim, but I will consider it as a claim of direct discrimination, bearing in mind Mr Engelhardt-Sprack’s reference to the shifting burden of proof that applies in discrimination claims and that, while I am looking to see why the claimants were treated the way they were, direct age discrimination need only be a material factor in their treatment. It does not have to be the only or even the main factor, and influence of age on the respondent’s decisions may be conscious or unconscious.

[438]Mr Engelhardt-Sprack’s first point in support of this is that the respondent deliberately targeted the Legacy Fleets, who he says were all necessarily aged above 28 at the time.

[439]That is, in a sense, true. The respondent was clearly taking steps in respect of the Legacy Fleets, but the threshold age for the direct age discrimination claims, as with the indirect discrimination claims, is 40, not 28. Targeting the Legacy Fleets affected a number of people below 40 who were in the Legacy Fleets.

[440]Mr Engelhardt-Sprack suggests that the respondent wished to portray a “fresh blood” image to the world, but I do not see any reference to that in the document he cites, which simply speaks of being “the best cabin crew in the world”. There is a reference in one planning document to: “Turn the corner. Champion the new normal. Welcome newcomers. In the grow and embed phase, consolidate and celebrate a futureproofed fleet. Welcome truly fresh blood to break down barriers and drive a sense of normality. Allow time for healing. Honour promises, appreciate contributions and manage underlying resentment closely.”

[441]The respondent has suggested at times that the Legacy Fleets had become stagnant. This came across most clearly in the evidence of Mr Monk, who managed Euro Fleet. He says: “When I started in EF in April 2019 I initially spent time understanding how EF operated and how it was performing as a business unit. EF had the highest unit costs, lowest productivity, lowest customer service and colleague satisfaction scores of any of the fleets. Our colleague survey data told us that morale on EF was at a low ebb, largely driven by concerns around the future of the fleet and a feeling that there were no opportunities for EF cabin crew to progress - they couldn’t be promoted, the fleet gradually shrunk each year through attrition, and they couldn’t transfer to other fleets without accepting a new Mixed Fleet contract.”

[442]While the claimants were keen to emphasis the credentials and good record they and their colleagues had, fundamentally the situation was as Mr Monk describes, in both Euro Fleet and Worldwide Fleet. In particular, there were few if any opportunities for promotion, since people in position would tend to stay until retirement, and people would be unwilling to transfer across to Mixed Fleet and lose their terms and conditions.

[443]The significance of “fresh blood” and some other similar phrases is about the stagnancy that affected the Legacy Fleets, not about their age. Stagnation is explicitly mentioned in one of the other passages relied upon by Mr EngelhardtSprack.

[444]Mr Engelhardt-Sprack objects to the term “Legacy Fleet” or legacy crew as itself being ageist. I do not accept that. The term “legacy” is commonly used in business entirely because it does not bear pejorative connotations. The recipient of a “legacy” may well view that as an entirely positive thing, and one will find talk of, say, a business founder’s “legacy” being regarded as entirely positive.

[445]Mr Engelhardt-Sprack makes various other points about this, including suggesting that attempts to cloak documents containing such phrases in legal privilege suggests questionable intent. I do not accept that. The converse might be said. If the respondent’s considered that this documentation would not be disclosable, yet intended to pick on the Legacy Fleets due to the age of those in them, presumably they could and would have spoken freely – yet there is nothing in the material that I have seen that suggests that the claimants and the Legacy Fleet generally were targeted because they were over 39. Donkor

[446]Mr Engelhardt-Sprack’s second point on this relies on Donkor v RBS

[2016] IRLR 268

. He says that this is authority for the proposition that “in some cases, discrimination is made out where the discriminator has, albeit without considering the protected characteristic directly, nonetheless been influenced by a question indissociable from it, such as age-related eligibility for a particular benefit.”

[447]I don’t think Mr Carr disputes that as a general proposition, but as he points out the facts in this case are a long way from Donkor. In Donkor the discrimination was said to be not so much about age as about the fact that people over 50 received enhanced early retirement benefits. There could hardly be a more “indissociable” connection with age. The benefits themselves explicitly depended on someone being over a particular age. In such a situation the employer could not say that it was the benefits that went with age that was a problem or was the reason for the discrimination rather than the age itself. But that is not the situation in the claimants’ case. It is true that due to the closure of the Legacy Fleets to new entrants no-one 28 or under would be in the Legacy Fleets, but the claimant’s pleaded age threshold is 40 rather than 28, and this is a long way from the Donkor situation of the benefit itself depending on someone’s age. Conclusions on direct age discrimination

[448]The claimants have not come anywhere near shifting the burden of proof on the question of direct age discrimination, and their direct age discrimination claims are dismissed. Part-time workers discrimination

[449]There are a number of complaints of part-time worker discrimination. The respondent accepts that both claimants were part-time workers, and in both cases the correct comparator is a full time member of staff in each claimant’s fleet.

[450]Mr Engelhardt-Sprack is brief on the question of the part-time workers’ claim, saying: “Cs’ part-time workers claim is effectively fairly simple: R sought to vary the terms of part-time workers in a manner that was detrimental to parttime workers, on the basis that they were part-time workers.”

[451]The first alleged detriment is in relation to the first claimant: “the threatened removal of the 33% contract” as to which Mr Carr says: “This does not amount to a detriment. At the point at which she was required to decide on whether to take VR, the 33% contract was not on the table but this did not cause her to opt for VR. Instead, she put herself forward for a role in the new fleet working a 50% contract, in the expectation that her union would successfully negotiate for the inclusion of a 33% contract as part of the restructure. This they did and by the date on which the RMA was agreed, she knew that it was open to her to remain in employment on a 33% contract. On the facts therefore, she was not actually subjected to any detriment or disadvantage as a result of the temporary risk of the removal of such contracts.”

[452]I agree. It is true that the respondent proposed the removal of the claimant’s 33% contract and that this proposal lasted until final agreement of the RMA, but the claimant’s evidence was that she expected that the union would be able to negotiate continuation of the 33% contract, which in fact happened. Even given the wide interpretation of “detriment”, the first claimant has not demonstrated any detriment by the proposal of the removal of her contract in circumstances where she did not consider this proposal would ever be implemented nor take any action based on the proposal.

[453]The second alleged detriment is for the first respondent: the proposed change of the 33% working pattern from 14 days on/28 days off to 21 days on/42 days off. This did happen. Mr Carr says: “TD has not established any detriment arising from this change. It is apparent from her evidence that she:(1) asked no questions about how a trial period might work for someone in her position;

(2) “did not notice” that she could defer her training to convert to mixed flying;

(3) was not at any immediate risk of having to work as she was on long term sick (and did not recover until mid-2021);

(4) was “not thinking rationally” at the time;

(5) never made any attempt to check on how a 21/42 pattern might work alongside her partner’s rotating 7/3, 7/4 pattern;

(6) accepted that she “would have had to sit down and work it out and then see” – something that she never did before electing not to click to stay, in the full knowledge that this would lead to the termination of her employment.”

[454]All of that is an accurate reflection of the evidence given by the first claimant, and I have noted before that she never explained in her evidence how it was that 21/42 was worse for her than 14/28.

[455]But there is more to it than that. Mr Carr also points out that in comparison to a full time worker there was no difference. Full-time workers were rostered under the new arrangements to blocks of 21 days. The respondent’s purpose in this change was to have everyone working to 21 day blocks, which it considered to be the optimum scheduling agreement. I accept that the first claimant was not treated any differently to her full-time comparator in that respect. I similarly accept Mr Carr’s argument that what was done to the first claimant was not done on the ground that she was a part-time worker. In the circumstances there is no need for me to go on to consider the respondent’s justification argument.

[456]For the second claimant, the alleged detriment was the change in working pattern from 28/28 to 21/21. As will be apparent from what precedes this, the second claimant has not even attempted in her evidence to explain what difficulties she had with a 21/21 shift as opposed to 28/28, and there is no basis on which I could consider this to be a detriment to her. I accept the same points made by Mr Carr in relation to a comparison between the 21 day on period for part-time workers and full time workers. Both were rostered to 21 day on periods so there is no less favourable treatment. Similarly, the treatment was not on the ground of her part-time worker status.

[457]Both claimants bring claims of unfair dismissal. The terms of my order of 11 March 2025 limit the allegations of unfairness to those set out in the claimants’ pleaded cases. These are not set out in the list of issues but are identified by Mr Engelhardt-Sprack as being: “a. The reason given for dismissal, namely, redundancy was not the genuine or fair reason for dismissal as alleged/or at all; b. The Claimant never chose voluntary redundancy and/or to leave the Respondent as alleged by the Respondent or at all ; c. The Respondent failed to select the Claimant for redundancy fairly, objectively and/or at all d. The Respondent failed to follow a fair procedure by, amongst other things, failing to individually consult and/or consider alternative employment and/or at all; e. The Respondent’s failure to comply with the Redeployment Agreement 2012/2013 (in breach of contract); f. The Respondent’s failure to comply with the Redeployment Process Agreement; g. No objective or fair criteria were applied; h. The Respondent failed to offer the Claimant the right of appeal and/or failed to consider the Claimant’s appeal.” The reason for dismissal

[458]The first matter to be considered is whether the respondent has shown a potentially fair reason for dismissal.

[459]The respondent relies on redundancy as the reason for dismissal or, alternatively, some other substantial reason.

[460]The claimants accept that there was a “redundancy situation” at the time they were dismissed but not that this was the reason for their dismissal.

[461]It is certainly the case that there was a redundancy situation. The respondent had embarked on a massive redundancy and restructuring exercise across thousands of cabin crew, but by the time of the claimants’ dismissals the respondent employed essentially the number of cabin crew that it considered it required. Both claimants had passed through the redundancy process by not putting themselves forward for voluntary redundancy and then retaining their jobs in the compulsory redundancy exercise. At the time they were dismissed the respondent no longer had a requirement for fewer people to carry out work of a particular kind. The outstanding question was simply the terms and conditions on which the cabin crew who remained would be employed – were they the old terms and conditions, the new terms and conditions, or something else?

[462]Mr Carr addresses the reason for dismissal in his closing submissions: “BA contends that the Claimants were dismissed because the claimants refused to accept the new terms as varied by the collectively bargained RMA.” That is not a redundancy dismissal as it says nothing about a requirement for fewer people to do work of a particular kind. If there is a fair reason for dismissal here, it is “some other substantial reason”, which is well-established as being capable of application to this kind of situation.

[463]Was the true reason for dismissal that the claimants refused to accept the new terms? Mr Engelhardt-Sprack argues that “the real reasons for R’s dismissal of all cabin crew on 07.08.20 were neither redundancy nor R’s stated ‘other substantial reason’, but rather the fact that COVID-19 meant R would have cover to do what it had always wanted to do”. I don’t think that that really advances the argument, as it does not address whether there is a potentially fair reason for dismissal. If this was something that the respondent always wanted to do that says nothing about the underlying reason, whether that was fair or why the respondent wanted to do that.

[464]As regards the second claimant, Mr Engelhardt-Sprack speaks of a “second dismissal”, saying that “the real reason for that second dismissal was TDM’s emails of 22.09.20 where she disputed the validity of the collective agreement reached with Unite and effectively reserved her position as to the terms of her employment”.

[465]There are two elements to that – disputing the validity of the collective agreement and “reserving her position as to the terms of her employment”. The latter is, of course, entirely consistent with Mr Carr’s position that the reason for dismissal was refusing to accept the new terms of employment.

[466]Mr Engelhardt-Sprack is clearly treading a difficult line here, attempting to reconcile the second claimant’s pleaded position that she did not accept the new contract with her evidence that she did accept the contract but was just asking for clarification on some details.

[467]It is clear to me that Mr Carr is correct. The reason for the dismissal of both claimants was their refusal to accept the new terms as varied by the collectively bargained RMA. That amounts to some other substantial reason in these circumstances and is a potentially fair reason. Fairness

[468]In such circumstances there will usually be a close relationship between the fairness required in a redundancy dismissal and the fairness required in a dismissal for some other substantial reason, but having found that the reason for dismissal was some other substantial reason some of the redundancyspecific allegations of unfairness fall away – for instance, points (c) and (g).

[469]Point (b) had an element in relation to voluntary redundancy that does not apply to either claimant. The secondary element is that neither “chose to leave the respondent as alleged by the respondent or at all”. It is certainly true that neither clicked the “leave” button, but equally neither accepted the new terms of employment, and it is the refusal to accept the new terms of employment that led to their dismissal, not whether they chose to leave the respondent or not.

[470]On point (d) it is correct to say that the respondent never carried out any individual consultation with each claimant, but during the course of evidence we saw multiple occasions on which individual consultation was offered but not taken up by the claimants, perhaps partly based on their position that consultation could not take place during furlough periods – although we also know that there was a period towards the end when the second claimant was not on furlough. I see no unfairness in the respondent only offering the opportunity of individual consultation as opposed to insisting on it, particularly in such a large-scale redundancy exercise where collective consultation was undertaken.

[471]I do not accept the claimants’ position that consultation could not properly take place during periods of furlough. It is correct to say that “work” as such was not permitted during furlough, but I see no basis on which this should be extended to encompass matters of personal concern such as redundancy consultation. An offer to the claimants of individual redundancy consultation is not a requirement for them to carry out work. It is simply an invitation to them, if they want to do so, to participate in individual consultation for their own benefit.

[472]Despite there being much talk from both sides during the course of this hearing about what furlough did or did not mean I was not referred to any official guidance on furlough. In his closing submissions Mr Engelhardt-Sprack appears to accept the respondent’s position that HMRC guidance was “to the effect that employers can make employees redundant during furlough”. I accept that whoever compiled that guidance may not have had particular regard to the niceties of unfair dismissal law, but it seems perverse to suggest that while redundancy dismissals during furlough were permitted, consultation about them amounted to “work” and was not permitted.

[473]As for the question of alternative employment, the claimants have not identified any alternative employment that could and should have been offered to them, and I accept the respondent’s position that “there was simply no prospect of alternative employment being offered in circumstances where massive cuts being made across the business”. Inevitably in this case we have been focussing on cabin crew, but the circumstances were such that similar mass redundancy exercises were being undertaken at the same time across the respondent’s business, and in those circumstances there was no prospect of alternative employment outside cabin crew.

[474]The respondent accepts that the Redeployment Agreement and the Redeployment Process Agreement were not applied. Mr Carr says: “It had been proposed from 28 April 2020 that the Agreements would not be applied and would be the subject of consultation. The unprecedented crisis and need for the Respondent to quickly implement the business restructure meant that the timelines and cost of the RA and RPA were simply unworkable. It was reasonable for the Respondent to disapply those agreements.”

[475]I agree. Those agreements were not designed to address the kind of difficulties that befell the respondent and the claimants during the Covid-19 pandemic, and it was not unfair for the respondent not to apply them.

[476]As for the question of a right of appeal, I accept Mr Carr’s submission that “In circumstances where the Claimants had been offered a role under the new structure but had made a choice not to accept their new terms and conditions it was plainly within the range reasonable responses for BA not to offer a right of appeal.”

[477]The dismissal of the claimants was not unfair.

[478]The second claimant’s wrongful dismissal claim is somewhat unusual.

[479]Mr Engelhardt-Sprack describes it in this way: - The second claimant was dismissed with twelve weeks’ notice on 7 August 2020. That would have expired on 31 October 2020. - By clicking “stay” the second claimant had done what was necessary to consent to the withdrawal of that notice, irrespective of her later objection to the new terms. - On 25 September 2020 the second claimant was notified that her dismissal would take effect on 30 September 2020. This notification was not contractually permitted and amounted to a repudiatory breach of - Such a purported dismissal in breach of contract is not effective to bring the contract to an end. What is necessary to bring the contract to an end is acceptance of the breach by the employee (Geys). The claimant never accepted that breach. - Accordingly the claimant’s employment continued, or alternatively the claimant is entitled to twelve weeks’ pay (or perhaps just short of twelve weeks’ pay) in lieu of notice from 25 September 2020.

[480]The parties agree that Geys provides that acceptance of a breach of contract can be demonstrated either expressly (which it was not in this case) or by the employee “acting in a manner inconsistent with the continuation of the contract of employment”.

[481]In this respect there are two matters that the respondent can point to, both of which occurred before there was any suggestion from the claimant that she had not accepted the repudiatory breach and that her contract continued.

[482]The first is an email sent on 2 October 2020, shortly after the respondent says her dismissal took effect. She says: “I refer to your letter of 25th September 2020, in which you inform me that my position with British Airways is to be terminated on 30th September 2020 after almost 31 years’ service ... I will have no alternative but to consider myself as having been unfairly/constructively dismissed … I ask you therefore to prioritise my immediate reinstatement.”

[483]The second, which appeared only in a supplementary bundle, is dated 6 November 2020 and is an email from the second claimant to the respondent saying: “… I was an employee who was made redundant on 30th September 2020. Please advise me on the process to re employ me and reinstate the furlough process.”

[484]I do not think I need to take the point any further. Both emails refer to reinstatement or reemployment, which presupposes that her employment has ended. If there was any doubt it is removed by the second email, which says “I was … made redundant on 30th September 2020.” These two emails are clearly acting in a manner inconsistent with the continuation of the contract of employment. The second claimant’s employment terminated on 30 September 2020. E. ADDITIONAL MATTERS

[485]The claimants’ claims that are the subject of this common issues hearing are dismissed. A separate order has been made in respect of their remaining Approved by