On 21 April 2005, Jessica Starmer, a female airline pilot for British Airways (“BA”), succeeded in her claims of indirect sex discrimination and the right to work part-time against BA. Supported by her Trade Union, the British Airline Pilots Association (“BALPA”), Ms Starmer took BA to an employment tribunal after they declined to allow her the right to work 50% part-time in order that she may look after her young child.
BA are now appealing the decision, denying that their refusal to allow Ms Starmer to work part-time was based upon gender but rather their safety policies, and warning that the implications of the decision could be such as to undermine the ability of airlines to draw up their own safety policies.
Ms Starmer’s request was refused by BA in March 2004. They based their decision on operational and financial difficulties. Upon review, BA also cited the safety implications of accommodating Ms Starmer working at 50% part-time. In 2004, BA introduced a policy stating that pilots were required to have a minimum of 2,000 flying hours (around 3 years of full-time flying) before they could work at 50% thresholds – a rule applied equally to male and female pilots for safety purposes. At the time of making her request to work 50% of full-time, Ms Starmer had below 1,000 hours flying time. Consequently, BA would only offer her the option of a 75% part-time contract. Ms Starmer returned to work from maternity leave on this basis, having to also use her annual leave entitlement in order to be able to fully care for her child.
The tribunal concluded that the provision applied by BA to Ms Starmer was to the detriment of a larger proportion of women than men, since more women than men have childcare responsibility, and therefore need to work shorter hours and could not achieve the flying hours thresholds.
The tribunal went on to consider whether BA had objectively justified the provision irrespective of Ms Starmer’s sex. The tribunal found that the reasons put forward by BA in respect of its inability to reorganise work among existing employees or recruit extra employees, although related to legitimate objectives, did not justify the provision applied: “We do not accept on the facts found that had BA granted 50% of full-time working to the Claimant that there would have been a detrimental impact on customer service or performance to justify the provision.” The tribunal went on to say that although the safety implications for BA of allowing Ms Starmer to fly at 50% of full-time related to a legitimate objective, the reasons put forward were equally not adequate to justify the provision: “We find that the Respondent has not given any cogent evidence as to why it would be unsafe or in any way unsuitable for the Claimant or other pilots to fly at 50% of full-time.”
In failing to justify the provision requiring Ms Starmer to work full-time or on a 75% contract, BA had indirectly discriminated against Ms Starmer on the grounds of sex. BA had also failed to comply with the Flexible Working Regulations in not providing Ms Starmer with a sufficiently detailed notice in the specific time period regarding the refusal of her 50% request, for which Ms Starmer was awarded the sum of £270. The tribunal stated that a Remedy hearing will be fixed.
BALPA’s General Secretary, Mr Jim McAuslan welcomed the decision, hoping the result would encourage an increased number of airlines to introduce better part-time and flexible working arrangements for all flight crews whether they are a parent, a carer for aged parents or a worker in need of flexible retirement arrangements. Mothers in similar positions to Ms Starmer are now expected to follow her part-time working request – Mr McAuslan confirmed that BALPA were currently pursuing a number of other cases involving pilots in disputes over part-time working, with three airlines involved, including BA. The Civil Aviation Authority have confirmed that they will be reviewing the rules governing flying hours and experience following the outcome of this claim.
For employers attempting to avoid being faced with similar indirect sex discrimination claims, putting into place flexible working policies is a great starting point. However, it is the content and effect of such policies that is of the utmost importance, as BA discovered to its misfortune. Careful scrutiny must be given to the way in which a policy functions and the direct and indirect effects it has on both male and female employees in order to assess whether the policy could potentially provide the basis for a discrimination claim. The case of Starmer v BA has provided a wake-up call for employers to now look to their rules governing flexible working requests and review them where necessary to minimise the possibility of claims being brought against them.