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BA Pilot's sex discrimination case. (Update: Now includes Tribunal's judgement)

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BA Pilot's sex discrimination case. (Update: Now includes Tribunal's judgement)

Old 28th Apr 2005, 15:06
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MikeGodsell... excellent post, however most Balpa members do not work for BA, and the stats have been that way for over 2 years now. However Balpa still prefers to support its BA member group so in a way what you say still holds true. An employee in a smaller company who took this young ladys stance would not be so fortunate, in both Balpa support and employer response.
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Old 28th Apr 2005, 15:23
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mikeGodsell
I to have taken your advice and e-mail the BALPA lady, and recommend that all other members who feel strongly against this ruling do so as well!
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Old 28th Apr 2005, 21:37
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MikeGodsell,
I am sending this post to Atlyn Forde (a woman) and Head of Communications for BALPA.
As I have made clear, I am a supporter of Jessica, however, I do think that your idea of emailing BALPA is the first sensible suggestion that has come out of this debate and it makes a refreshing change from the "Yadda, yadda, yadda merry-go-round" that we have had so far.

Whilst I disagree with your viewpoint, I can see, nonetheless, the validity of your concerns and as Heliport said, you are perfectly at liberty to say that you "think someone 'standing up for their rights' is selfish or reprehensible behaviour in certain circumstances". There clearly are bigger issues at stake here and I hope that whatever the final outcome may be, it serves to show that regardless of the specifics of this case, that us pilots are once again becoming a force to be reckoned with. . .

Best wishes,

BH
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Old 28th Apr 2005, 22:59
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Wow. haven't visited this thread for a while.

I didn't realise that there were so many managers on here, a Pilots' forum. Or at least that's what it seems like.

Those professional pilots running down a person who has forged the way to improve T's & C's should be ashamed of themselves, or at least examine their motivation.

Having read the tribunal judgement it appears that they were not convinced by BA's arguments. The better case won on the day. It seems that some EMPLOYEES have difficulty dealing with that. Pity.
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Old 29th Apr 2005, 00:07
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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.
_______________________________________

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.)
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Old 29th Apr 2005, 01:17
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Flying Lawyer - thank you for an excellent and informative post.

Overstress - you unwisely think that the 'improving of terms and conditions' under these circumstances is a good thing. I am reminded of the efforts of 'Red Robbo' and his mates in the Seventies to 'improve terms and conditions' at British Leyland (which subsequently became Rover Cars for those too young to remember). The only problem was that while the ailing British car giant caved into the ludicrous demands of the rip-off culture that prevailed at that time, the competition became more and more efficient. The rest is now history as they say.

Although I work for one of BA's competitors, I cannot help but feel a degree of sympathy for them as they have have faced this cynical attempt at ripping them off. There are no doubt considerable advantages to being paid to have babies at your company's expense, but alas Nero fiddles while Rome burns. With companies like easyJet, Ryanair, Jet2, Wizz Air, etc not just nibbling at BA's door but truly chewing chunks off their lounge carpet then the pleasure may be short lived. 'Improvements' in terms and conditions will pale into insignificance compared to the pleasure of actually having a job. Pity.

Last edited by Norman Stanley Fletcher; 29th Apr 2005 at 01:39.
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Old 29th Apr 2005, 05:54
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Angel

FL.
Thank you very much for taking the trouble to post a most interesting read. It seems to me that BA went into the hearing a little under prepared. At the very least it would appear that they rather shot themselves in the foot. Bring out the big guns? Win an appeal?
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Old 29th Apr 2005, 06:02
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Norman Stanley Fletcher, has easyJet ever had a lady pilot, with a baby, on a part time roster?
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Old 29th Apr 2005, 10:25
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Not really my place to butt in as a humble SLF, but a couple of queries:

in the judgment as described by FL there is no mention of BA changing the rules, which surprised me somewhat. For me it is the single point on which the direction of my sympathy lies - earlier in the thread it has been described several times how the rules regarding minimum experience were changed between the application for part time working and the decision. Does this mean that the rules weren't in fact changed, or that the tribunal didn't regard the change as a signnificant event?

Most of us in our working lives make judgements about matters based on what we know/believe our company's rules are, without checking with HR every 5 minutes. Certainly when my wife and I had an addition 5 years ago we looked at the rules regarding time off for new fathers (was up to 5 days at managers discretion at that point). That information (my boss told me that the discretion could be assumed as far as he was concerned) dictated our plans for the year in terms of juggling my annual leave. Had they changed the rules just before the birth to rescind the time off option, then I too would have been livid (not to go as far as a tribunal, but the point is the same). Happily for me the rules did change, but to give 10 days off automatically, which was nice.

From what has been written here I would tend to agree that BA messed up their defence somewhat as far as the safety angle is concerned - they appear to have displayed the symptom that many on here have which is to assume they just have to say the 's' word and everyone will jump into line. That isn't to deny that safety is top of the priority list, but it does sometimes seem to get used when what the user is really saying is 'shut up and do what you are told' which isn't quite the same thing.

I await the appeal with interest.

PS: is the alleged second pregnancy for real, or just an urban legend? Ms Starmer has every right to procreate as she sees fit, but in this case the timing would seem a little unfortunate if it is indeed true.
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Old 29th Apr 2005, 15:05
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Yarpy - the honest answer is I don't know. I know of only one 'working mum' at another base and I do not know her personal circumstances. I am however fairly certain that none of our women pilots have felt it necessary to go through the same process as the lady at BA.

We do have a number of excellent women pilots who are hardworking, professional and a pleasure to fly with. The sad reality is that in future such people are less likely to be employed in the airline industry due to the greed of an unrepresentative minority.
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Old 29th Apr 2005, 15:15
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A very interesting thread which mirrors many problems and opinions held within my own company (NATS). Why do so many pilots and also ATC ers see their occupation as so different from what the rest of the population does to earn a living. We are subject to the same employment rules as all other occupations and I am sure most of you welcome this fact. Why should a female pilot not be entitled to the same quality of life in terms of part-time working as for instance a bank clerk. There would seem to be some confusion of thought among certain members of the profession who want to think of it as a "special" career for some but deny even the equivalent rights to others. ie. mothers requesting part time hours.
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Old 29th Apr 2005, 16:07
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Sorry if this has been said in this thread before - it's a long one to wade through although I expect you've all forgotten the earlier styuff anyway....

I'm confused about why this is a "sex discrimination" case. Are all the male pilots having 50% time off to look after their own children and she is not allowed? In which case, good for her.

Otherwise, how is she being discriminated against on the grounds of her sex? Is it because children are an inevitable consequence of being female and therefore anyone who denies a woman her femininity is being sexist? Surely that makes it a "lifestyle discrimination" case, but even that seems somewhat dodgy.

Enlighten me, someone. I need to know if I can claim sex discrimination because the girls get all the compliments and I just get the insults. (OK - I probably deserve them....)

Last edited by Dylsexlic; 29th Apr 2005 at 17:57.
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Old 29th Apr 2005, 18:24
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It is indirect sex discrimination, due to the fact that, proportionately, more females request part time working than males (according to Mrs P-T-G, who is an employment lawyer).

The madness of this is that a male pilot would not win the same case, as he could not claim the same.
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Old 29th Apr 2005, 18:46
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ifaxu

absolutely spot on mate
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Old 29th Apr 2005, 19:01
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Why should a female pilot not be entitled to the same quality of life in terms of part-time working as for instance a bank clerk?

Because she chose to work in a profession that involves responsibility for people's lives as well as very expensive equipment.

You make it sound as if she was forced to become a pilot, and therefore ought to be entitled to "compensation" for the fact that she has a tougher job.

If she wants the flexibility granted to bank clerks, no-one is stopping her becoming a bank clerk. But people have to get this ridiculous idea out of their heads that the conditions of one job should apply equally to another job - particularly when the responsibilities involved are so wildly different.

My job often requires me to work abroad for several days at a time, often at short notice, and to work through holiday periods while my mates are getting trolleyed.

It's not my employer's fault that the nature of my job doesn't fit a cosy 9-to-5, home-to-the-wife framework. I choose to do this for a living - and therefore I have to accept the disruption. If I don't want to put up with it, I don't have to stay - there's plenty of people who'll gladly step into my shoes.
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Old 29th Apr 2005, 19:16
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Yarpy

The answer to your question is most certainly yes.
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Old 29th Apr 2005, 19:46
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Ignoring the specifics of this individual case for a moment, and taking the issue of gender out of it, the question above could be re-worded slightly thus:

Why should a...pilot not be entitled to the same quality of life...as for instance a bank clerk?
I suspect the answer to that is the same as the answer to these questions;
  • Why can't train drivers, bus drivers and taxi drivers all work a regular 9-5 day like bank clerks?
  • Why can't police officers expect to have bank holidays off work, like bank clerks do?
  • Why do ambulance crews, firefighters, hospital staff, the AA, duty solicitors, air traffic controllers, etc etc all have to work on Christmas day while bank clerks get to spend the day at home?
  • Why do supermarket check-out staff have to work until midnight or, in some stores, around the clock on a 24-hr basis while bank clerks don't?

The answer (and there is only one), is because being a {insert job here} isn't like being a bank clerk.

The reasons for this are various and colourful. Sometimes it's because the job requires a level of responsibility above and beyond that of a 'normal' job. Sometimes it's because the conditions so ascribed are simply part and parcel of doing a particular job.

Either way, the point is that the choice of whether to accept the job or not is there to be made right at the get-go and even, normally, beyond that; the option to change employer or even career isn't normally beyond the reach of many.

And there ends my general point.
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Old 29th Apr 2005, 19:57
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Thanks for the appreciative comments. I learn a great deal about flying and the aviation industry from professional pilots on and off PPRuNe so it's good to have the opportunity to give something back occasionally.

Curious Pax
"In the judgment as described by FL there is no mention of BA changing the rules."
That appears to have been a complete red herring. There was no change in any relevant BA rules between Mrs Starmer starting work in May 2001 and the refusal of her application in March 2004.
What actually happened was that the law relating to applications for part-time working changed in 2003. BA formulated a policy setting out how it would apply the new law, the factors which it would take into account when considering each application for a part-time contract etc. That policy was published in 2004. It played no part in BA's decision (in 2003) to refuse her application, and BA didn't suggest it did.

ifaxu
"Why should a female pilot not be entitled to the same quality of life in terms of part-time working as for instance a bank clerk?"
Some might say because we make a free choice when we choose a career which affects our life-style instead of choosing a 9-5 (or other regular fixed hours) job which has little or no impact upon our home life. If the enjoyment outweighs the disadvantages, do it. If it doesn't, do another job.
eg If you don't want to be away from home and/or work unsociable hours, don't become an airline pilot. If you don't want to work every evening and most weekends, don't become a barrister.

Dylsexlic
I can understand your confusion - I suspect you're one of a very large majority.
Parliament, in its infinite wisdom, decided that if a provision, criterion or practice which applies to both men and women operates to the "detriment" of a considerably larger proportion of women than men, then that is unlawful sex discrimination - even if men are subject to precisely the same provision, criterion or practice.
The figures showed that, of the relatively small number of BA pilots who'd applied to work part-time, there were more applications by women than men.
So, although both men and women had applications refused, and although it appears BA was in fact more likely to grant an application by a woman, it could still be proved by statistics that the proportion of women affected by (refused under) under BA's criterion was larger than the proportion of men - because more women applied.
That's just a very brief summary (the judgment included pages and pages of statistics) and not an attempt to justify the law - I'm not a politician.
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Old 29th Apr 2005, 20:04
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Flying Lawyer

Well reasoned and succinct - nicely done!
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Old 29th Apr 2005, 20:07
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Dylsexic spake thusly:

I'm confused about why this is a "sex discrimination" case. Are all the male pilots having 50% time off to look after their own children and she is not allowed? In which case, good for her.
This seemed to confuse BA too who have always maintained that this was not a gender issue. Surely, in arguing this case on gender grounds, JS, BALPA and her lawyers (and, aparently, the judges) are guilty of sex discrimination as they are implying that mothers alone are responsible for childcare.

Edited as Flying Lawyer was answering the above observation as I was typing it. (Aren't lawyers clever )

All I can really add is that the law, as dictated by parliament, is an ass. In trying to rid the country of sex discrimination, it is guilty of, yes, you've guessed it, sex discrimination...
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