The Judgment was given on the 21st April. It is not yet available from the Employment Tribunal but this is a summary of what it contains.
Background
Mrs Starmer was recruited and trained ab initio by BA.
May 2001: Employed as a First Officer on the Airbus fleet (short haul) on a full time contract.
(Met Captain Starmer and, in due course and after some necessary 'formalities' had been completed, became the new Mrs Starmer.)
February 2003 onwards: Pregnant/unable to fly - “ground duties”.
October 2003: Began maternity leave, giving birth at the end of that month.
March 2004: Application for a contract variation to 50% refused. BA offered a 75% compromise. She declined the offer.
September 2004: Returned to work, not having flown for 19 months.
Has used her leave “and other means” (direct quote from the judgment) to take time off pending the outcome of her claim against BA.
[Note: Five pilots on the LHR Airbus fleet applied to work part-time in Feb/March 2004. Four women applied for 50%. One application was granted and the other three (incl Mrs Starmer) were offered 75%. The man applied for 75% and was refused.]
Legal Issues:
(1) Did BA apply a provision, criterion or practice (“PCP”) to the Claimant which it applied (or would have applied) equally to a man?
Held: Yes.
(2) Was that ‘PCP’ such that it would be to the detriment of a considerably larger proportion of women than men?
Held: Yes
“Most applications for part-time work within the BA workforce are from women ….. generally for child care reasons. We consider that the figures show that the PCPs are to the detriment of a considerably larger proportion of women than of men.”
“We do not consider the Claimant’s decision to live some 107 miles and approximately two hours drive from her place of work to have any bearing on our consideration of the claim. The impact of BA’s actions in respect of her tours of duty, time at work and absences from home would be the same wherever she lived.”
(3) Could BA show the ‘PCP’ to be justifiable irrespective of the Claimant’s sex?
Held: No
Main Arguments/Findings
Burden of additional costs
(Additional costs of recruiting, training, conversion course etc and employing more than one pilot to carry out a full-time role.)
Finding:
“The costs involved in training new pilots are appreciable. However, the costs must be considered in the context of BA’s business. (The Tribunal looked at BA’s Profit/Loss for a 4.5 year period.)
While the reason relates to a legitimate objective ….. we do not consider the increased costs incurred by BA to make up the 25% difference (between 50% time applied for and 75% time offered) …. justify the PCP. BA will have to incur extra costs to recruit/train a pilot to fill the 25% it has agreed Mrs Starmer need not work.”
(Comment: BA’s offer of a 75% compromise to accommodate Mrs Starmer was used against them.)
Detrimental impact on BA’s reserve cover for operational eventualities
(Part-time pilots aren’t available for reserve cover.)
Finding:
“There will be an impact on the reserve. However … approval of 75% removed her from the pool of pilots able to work in that capacity.”
(Comment: Again, the offer of a compromise appears was used against BA.)
Pilot resource difficulties
(F/O’s were already flying at or near the maximum annual hours agreed with BALPA, and sometimes over.)
Finding:
“BA had a recruitment freeze - we do not doubt for other than proper business reasons – (but it is) a self-imposed constraint.”
“BA has a practice of allowing pilots to transfer to other fleets when possible. This …. is a matter within BA’s control.”
(Comment: ie BA chooses to allow pilots to transfer between fleets but it doesn’t have to. Watch this space.)
Pilots already flying maximum agreed flying hours
Finding:
”This was a voluntary agreement between BA and the relevant trade union and no more.”
Safety
“There were differences of opinion expressed as regards safety. In general terms, the Claimant and the witnesses she produced in support held the view that competence and safety of a pilot could not be satisfactorily measured by reference to hours flown, whereas BA’s witnesses view was that the number of hours flown was a necessary and realistic threshold which had to be achieved in a relatively concentrated period before a pilot could have a safe reduction in duties below 75% of full time.”
Finding:
“We are prepared to give some weight to the notion that, after training, a pilot benefits from a sustained and concentrated period in performing her job. We find however that BA has not given any cogent evidence as to why it would be unsafe or in any way unsuitable for the Claimant or other pilot to fly at 50% of full-time. While the reason put forward related to a legitimate objective we find that the PCP has not been justified on the grounds of safety.”
(Note: At the time of her application, Mrs Starmer had a frozen ATPL and had flown 970 hours with BA over a 20 month period.)
Decision: “We find …. that the reasons put forward by BA while relating to legitimate objectives …. are not such as are reasonable necessary or justify the PCP."
BA unlawfully discriminated against Mrs Starmer contrary to the Sex Discrimination Act 1976.
A hearing to decide the 'Remedy' will be held on a date to be fixed.
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Those who think the Tribunal’s decision will help all BA pilots who want part-time contracts are being a little over-optimistic IMHO. The policy upon which Mrs Starmer relied relates to applications by parents (or partners living with the parent) of a child under six years old, or under 18 if the child is disabled, amongst other conditions. It doesn’t mean ‘open house’ for all applications to succeed.
The Tribunal rejected BA's safety argument because it considered on the evidence produced that it had not provided sufficient “cogent evidence” to support it. 'We were not presented with any "data" about the effects of reduced flying on the performance of pilots.'
It doesn’t necessarily follow that BA won't be able to do in another case. Professional airline pilots are better placed than I am to express informed opinions about that aspect.
Mrs Starmer claimed some named women pilots with children had been forced to leave because of BA's attitude to working mothers. She didn't call of them to confirm her claims and the tribunal doesn't appear to have attached any weight to that aspect.
Some might think there's a certain irony to the tribunal's decision. BA introduced a scheme in 2000 to accommodate child care needs subject to recency considerations and there was clear and undisputed evidence that BA had a policy of actively recruiting women pilots.
Tudor Owen
(Apologies for the long post, and any errors or omissions, but the original is 23 pages long! Hope it's of interest.)