British Airways (European Operations at Gatwick) Ltd v Moore & Botterill
Employment Appeal Tribunal
When determining an issue of the right to remuneration, an employment tribunal was entitled to conclude that the terms and conditions applicable to the alternative work offered to and accepted by two grounded employees were substantially less favourable than the terms and conditions for their normal cabin crew work.
Appeal by two employees ('M' and 'B', together 'the applicants') and cross-appeal by an employer ('EOG') from a decision of an employment tribunal. The applicants were both employed by EOG as pursers. When on flying duty cabin crew were contractually entitled to certain allowances ('flying allowances'). These were not payable when they were grounded, but grounded staff were paid an allowance to replace the benefit of the flight allowance. The applicants were grounded after the sixteenth week of their pregnancies. Neither applicant complained at that time. The applicants complained before the tribunal that there had been: (i) unlawful deductions from their wages contrary to s.13 Employment Rights Act 1996 ('the deductions claims'); (ii) breach of their right to remuneration on suspension on maternity grounds, as provided for in ss.66-70 of the 1996 Act ('the remuneration claims'); (iii) breach of the Equal Pay Act 1970 and/or Art.119 EC Treaty ('the equal pay claims'); and (iv) unlawful sex discrimination, contrary to the Sex Discrimination Act 1975 ('the sex discrimination claims'). The tribunal determined that: (a) the deductions claims were not made out; (b) liability for the remuneration claims was made out, the issue of remedy was adjourned pending the outcome of an appeal; (c) M's equal pay claim succeeded, B's failed and was dismissed; (d) the sex discrimination claims were dismissed. Both parties appealed the decision but there was no cross-appeal by EOG against the finding on the sex discrimination claims.
HELD:(1) Both applicants were suspended from work on maternity grounds within the meaning of s.66 of the 1996 Act. Iske v P&O European Ferries Dover Ltd (1997) IRLR 401 considered. (2) When carrying out normal flying duties the applicants were entitled to basic pay and flying allowances. When engaged on alternative duties on the ground they were entitled to basic pay only. These were the relevant terms and conditions for the purposes of a comparison under s.67(2)(b) of the 1996 Act. (3) The tribunal was entitled to conclude that the terms and conditions applicable to the alternative work offered to and accepted by the applicants were substantially less favourable than the terms and conditions for their normal cabin crew work. (4) The tribunal's finding that the applicants were not offered suitable alternative work within the meaning of s.67(2) of the 1996 Act disclosed no error of law. (5) M and B were entitled to an assessment of the remuneration due to them. They had not waived their statutory right to suitable alternative employment under s.67(2) of the 1996 Act by identifying the jobs they preferred and accepting the rates of pay provided for in their contracts. (6) The applicants had agreed to basic pay only for the ground work and that is what they received. There was no unlawful deduction under the terms of either applicant's contract. (7) Where a worker was suspended on maternity grounds the position was governed by the code embodied in ss.66-70 of the 1996 Act. These sections were compatible with Council Directive 92/85/EEC on pregnant women. Clark v Secretary of State for Employment (1997) IRLR 214 considered. No separate equal pay claim arose under the 1970 Act or Art.119 of the Treaty in relation to alternative work performed by that worker in these circumstances. The tribunal ought to have dismissed M's equal pay claim.
Cross-appeal allowed to the extent indicated. M's equal pay claim dismissed. Both cases remitted for a remedies hearing on the remuneration claims. Leave to appeal refused.
 ICR 678, IRLR 296.