The government has urged a tribunal to dismiss an appeal from British Airways today after the airline was hit with legal action over its ‘fire and rehire’ practices during the covid pandemic.
British Airways (BA) is facing legal action from 38 cabin crew members over its use of the controversial labour practice during the pandemic, which involves letting staff go before rehiring them on new and often less favourable terms.
Former staff bringing the claim against BA claim they were pressured and discriminated against.
At a hearing of the Employment Appeal Tribunal (EAT) yesterday, BA was looking to appeal an Employment Tribunal decision from December 2022, which ruled the Equality Act 2010 should be interpreted to allow for indirect associative discrimination in the context of sex and race discrimination.
Associative discrimination is when a person is subjected to less favourable treatment because someone they know or are associated with has a protected characteristic as defined by the Equality Act 2010.
Under section 19 of the Equality Act, it stated for a claim of indirect discrimination, the person experiencing the less favourable treatment must personally possess the relevant protected characteristic.
Despite that, a claim of indirect associative discrimination has not been upheld by a UK court. The BA case is the first case testing whether indirect associative discrimination claims are covered by the Equality Act.
This case stems from the pandemic where BA announced its plans to make up to 12,000 staff redundant. It was alleged that staff members said they were pressured into voluntary and compulsory redundancy, alleging discrimination and deceptive practices by the airline.
The significance of this case has prompted intervention from the UK government and the Equality and Human Rights Commission (EHRC).
The current Minister of State for Women and Equalities, Bridget Phillipson has opposed BA’s appeal. According to court documents seen by City A.M., the Minister asked the tribunal to dismiss the appeal.
It was noted that this was different from her predecessor, Kemi Badenoch MP, who decided not to take a position.
Baroness Kishwer Falkner, chairwoman of the Equality and Human Rights Commission explained that “at the Employment Appeal Tribunal, British Airways is arguing against the protections which are now contained in the new Section 19A.”
“We have stepped in to support the claimants in countering those arguments,” she added.
While Tara Grossman, partner at Kepler Wolf and founder of Justice Tech start-up Litigation Friend, who is representing 30 of the claimants, stated that “the airline is also now attempting to overturn a crucial protection under discrimination law in the UK which further impacts my clients’ pursuit of justice in this case.”
Falkner added that “the Minister for Women and Equalities was invited to intervene in the case by the judge”.
She noted that they were “pleased” to see that she agreed with the Equality and Human Rights Commission position “that protection from indirect discrimination by association is a primary part of the Equality Act and that the argument against it should be dismissed.”
This is an ongoing battle as the common issues trial, which is the main hearing in this case, has been scheduled for February – March 2025.
The parties were at the EAT yesterday and today.
British Airways was approached for a comment.