Backhouse Jones Watermark

Turbulence “Cabin crew, prepare for landing…”

13 May

Once the height of luxury, reserved for the rich and famous, air travel has since been rolled out to the masses – with economy flights making the world a much smaller place for a much wider cross-section of society. The advent of budget airlines, offering short-haul flights at discount prices, has brought closer the experience of flying to that of a commuter on a bus; some airlines even taking cost-saving to a point where they are mooting the option of standing room only. Just don’t expect a ‘stop button’ on an aeroplane anytime soon.

The developing similarities between air travel and bus/coach travel are not without reason, as both industries have had to look to operate economically, but also comply with mounting regulations – at an EU-level – concerning reasonable adjustments for disabled passengers. The key pieces of union legislation outlining passengers’ rights for these industries being Regulation (EC) No. 1107/2006 (air travel) and Regulation (EU) No. 181/2011 (passenger carriage).

A recent case heard a strike out application brought by the Defendant, a budget airline. The claim itself concerned the potential scope of the Defendant airline’s duty to make reasonable adjustments for disabled passengers.

The Claimant, someone who required assistance due to mobility issues, arrived at Ben Gurion Airport in 2018. He left the plane unassisted, went to collect his baggage from the luggage carousel and later fell within the airport, fracturing his right shoulder.

In defending the subsequent claim, the Defendant airline argued that the claim should be struck out on the basis that there were no reasonable grounds for bringing it. The airline had, after all, successfully transited the passenger to his destination and he had disembarked the plane without incident. Why, therefore, would the airline be liable for something that happened in Tel Aviv airport?

As a service provider, specifically, it is unlawful for the airline to discriminate against a disabled passenger by failing to comply with the duty to make reasonable adjustments for that person’s disabilities – a duty contained in section 29 of the Equality Act 2010 (EqA). The airline in this application looked to rely on an argument based on an exception to the EqA.

Schedule 3, paragraph 33 of that Act states:

“(1) Section 29 does not apply to—

(a) transporting people by air;

(b) a service provided on a vehicle for transporting people by air.”

The Defendant asserted in their application to strike out the claim that the exception in paragraph 33(1)(a) applied, on the grounds that it only provided air transport to the Claimant and, accordingly, no duty to make reasonable adjustments was owed.

Two cases were considered before finding against the Defendant airline. Firstly, in Ross v Ryanair [2004] EWCA Civ 1751, Mr Ross (suffering from cerebral palsy) had to pay for a wheelchair to take himself from the check-in desk to the plane. The Court of Appeal reversed the acquittal of Ryanair and held the airline as partly liable. In doing so, they rejected the argument that an airline’s service consisted solely of the use of a means of transport. The Defendant, even though the court found against the airline, sought to argue that Ross was authority for the proposition that an airline’s potential liability ends before a passenger removes his baggage from the carousel.

Secondly, and more recently, a County Court decision in Campbell v Thomas Cook [2014] Eq. L.R. 108 was analysed. Thomas Cook was deemed to have breached its obligations to make reasonable adjustments by failing to provide a Claimant with a wheelchair to sit in whilst queuing at the check-in desk. In that case, the airline was not exempt from the obligation to make reasonable adjustments and could not rely on Schedule 3, paragraph 3.

Both cases related to the provision of wheelchairs to passengers prior to boarding a plane and the rejecting of the argument that an airline’s service consisted solely of the use of a means of transport. Both show that airlines will struggle to pass the full blame for failing to make reasonable adjustments for disabled passengers before they board the plane; there can be no principled difference with disembarkation.

Ultimately, the Court, in this application to strike out, rejected the Defendant’s argument that Ross was authority for the proposition that an airline’s potential liability ends before a passenger removes his baggage from the carousel. The reasoning given was that the court in Ross did not decide “at what physical location in the airport or its environs, the airline’s duty might begin or end”. Therefore, there were no restrictions in terms of at what physical point in an airport an airline’s duty can be said to have been discharged.

Coach and bus operators should therefore be wary of the courts’ apparent willingness to interpret narrowly the circumstances in which a service provider’s duties are displaced.

Reasonable adjustments and the rights of the disabled, or those with reduced mobility, is not simply an evolving area of law for airlines and air travel, but also those in the business of passenger carriage. Currently, domestic services in the UK are exempt from some of the requirements in Regulation (EU) 181/2011 (passengers’ rights regulation for road transport) which outlines a string of obligations and adjustments which must be made for the disabled or those with reduced mobility. The deadline for that exemption is 28 February 2021, after which the full provisions will be in effect.

Should you have any questions relating to your duty to make reasonable adjustments within the services you offer, please contact Backhouse Jones on 01254 828300 or regulatory@backhouses.co.uk for further guidance.

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