Mrs J Carter v British Midland Regional Ltd: 2600206/2017 and 2600765/2017
| Jurisdiction | England & Wales |
| Judgment Date | 01 October 2018 |
| Citation | 2600206/2017 and 2600765/2017 |
| Court | Employment Tribunal |
| Published date | 23 October 2018 |
| Subject Matter | Unfair Dismissal |
RESERVED Case No: 2600206/2017
2600765/2017
Page 1 of 50
EMPLOYMENT TRIBUNALS
Claimant: Mrs J Carter
Respondent: British Midland Regional Limited
Heard at: Nottingham On: 2-6, 9, 12-13 July 2018
Before: Employment Judge Clark
Ms F French
Mr P Jackson
Representatives:
Claimant: Mr Hodge of Counsel
Respondent: Mr Carter of Counsel
JUDGMENT
1. The claim of unfair dismissal fails and is dismissed.
2. The claim of indirect sex discrimination fails and is dismissed.
3. The claim of direct sex discrimination fails and is dismissed.
4. The claim of less favourable treatment on grounds of part-time working fails
and is dismissed.
5. The claim of harassment fails and is dismissed.
6. The claim of victimisation fails and is dismissed.
REASONS
RESERVED Case No: 2600206/2017
2600765/2017
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1. Introduction
1.1. This claim centres on the claimant’s employment as a part-time working
mother over the last few years of her employment. In her original claim
(260206/2017) she presented claims of direct and indirect sex discrimination,
harassment, victimisation and less favourable treatment related to her status as a
part-time worker. She subsequently resigned and presented a second claim
(2600765/2017) making claims of constructive unfair dismissal, direct sex
discrimination, further allegations of harassment and victimisation and repeating
her claim of indirect sex discrimination.
1.2. The crux of the case is the impact on the claimant of a commercial decision
by the respondent in late 2015 to expand the route operating out of East Midlands
Airport. This meant the aircraft would operate from Brussels, and not East
Midlands. Instead of being able to return home after almost every shift, the flight
crew would instead operate a tour of duty each week necessitating a number of
night stops in Brussels. Attempts to resolve the issues failed and the claimant
resigned from her position as a First Officer Pilot on 24 March 2017.
2. Issues
2.1. The parties agreed a list of issues for each claim presented which appears
in the agreed bundle [page 99.9]. We adopted this save that we have structured
our analysis on the issues in each type of claim, rather than as they appear under
each claim number. It was also agreed that some of the claims are prima facie out
of time and that we will have to consider the question of our jurisdiction.
3. Evidence
3.1. For the claimant, we heard from Mrs Carter herself. We also heard from Mr
Carter, her husband. For the respondent, we heard from Captain William Gill,
Captain Julian Halmshaw, Mr Steve Halliwell and Mr Lee Rennie. All witnesses
adopted written statements on oath and were questioned.
3.2. We received a substantial bundle of documents approaching 1000 pages
and considered those documents we were directed to.
3.3. Both counsel prepared detailed written closing submissions which they
supplemented and respondent to orally. We record out gratitude to both counsel
for the helpful and cooperative manner in which they conducted their respective
cases before us.
4. Facts
4.1. It is not the role of the Tribunal to resolve each and every last dispute of fact
between the parties. Consequently, we do no rehearse every point raised but seek
to reach findings necessary to resolve the issues in the case and to set them in
their proper context. On that basis, and on the balance of probabilities, we make
the following findings of fact.
4.2. The respondent is a commercial airline operating flights between airports in
the UK and Europe. The predecessor incarnations of the BMI brand are well
RESERVED Case No: 2600206/2017
2600765/2017
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known to the public. In its present form, it is one of the smaller carriers operating
on a regional basis across northwest Europe in a very competitive airline market.
It employs around 325 staff of which just under half are pilots and has a well-
developed employment policy framework with specialised in-house HR support
and collective consultation machinery relevant to the issues in this case.
4.3. The claimant obtained a private pilot’s licence in 2002 whilst working in her
previous career in Insurance. She decided on a career change and commenced
training to upgrade to a commercial pilot’s licence. She graduated in 2004 and was
interviewed by the respondent for the post of first officer. She commenced her
employment with the respondent soon afterwards in April 2004.
4.4. We note the commitment and personal investment, in every sense of that
meaning, that is needed to train as a commercial airline pilot. The financial cost to
the claimant of the initial training was in the region of £100,000. There is then
further training on “type”, that is the particular model aircraft being flown. Airlines
typically offer some support for type raining costs albeit that is usually linked to a
tie in and/or payback period from future earnings. The airline provides the in-serve
training as part of the ongoing periodic competence/regulatory framework.
4.5. The flight deck is staffed by two pilots. The senior of the two is the
commander, or captain. That is the “left seat”. The junior of the two is the first
officer. That is the “right seat”.
4.6. The claimant became an employee employed under a contract of
employment which was itself subject to a collectively agreed “memorandum of
agreement (“MOA”) [118-244]. The operation of the airline, which necessarily
touches on matters connected with pilots’ employment, is governed by an
Operations Manual [see 761 onwards] which also regulates a number of elements
of the working practices of pilots, in particular relating to hours and the safety
aspects of working time. The MOA is lengthy and detailed and covers just about
all aspects of the working arrangements of pilots employed by the respondents. In
particular, it recognises the day to day reality of being employed to operate in the
business of international travel which, by definition, is not a typical 9-5 job. In
summary, it deals with matters one would expect to see in any employment
“handbook” including pay, allowances, benefits and further matters specific to the
nature of work within an airline such the assignment to a base. Hours of work is
obviously a significant issue for pilots. There are rules found within the MOA and
terms of employment which we accept comply with the Civil Aviation Authority
(“CAA”) standards. Control of hours goes further than the hours of work and
includes measures to control the effect of fatigue in arears such as travel to work
and travel between bases.
4.7. Of relevance to this case are the following specific agreements within the
MOA:-
a A “lifestyle agreement” [146], which recognises the intent to provide
crews with a stable roster with which to plan their flying and domestic
lives while permitting the respondent a predicable resourcing of its
operation. This agreement established the BMI rostering committee, a
joint committee to monitor and deal with issues anticipated by the
agreement. This agreement goes on to define a number of terms with
a specific meaning, either within the industry or within this employment.
b A maternity scheme [188] in which the respondent expresses an
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