11 DEC 2014
Suing Tour Operators For Disability Discrimination - Further Developments
Campbell v Thomas Cook Tour Operations Ltd (Nos. 1 & 2)
When Janice Campbell embarked on her holiday to Tunisia in early 2011 she cannot possibly have expected (or hoped) that it would raise several interesting legal points involving, at least, 1 trip to the Court of Appeal. Yet it has. There may be more to come.
Mrs Campbell is disabled. She suffers from arthritis and has difficulties walking and standing. She is predisposed to developing migraines as a result of brain damage. She bought a package holiday in Tunisia from Thomas Cook. She brought 2 separate claims against Thomas Cook for failures to make reasonable adjustments pursuant to section 29 of the Equality Act 2010.
In the first claim she claimed Thomas Cook had failed to make reasonable adjustments as she waited at Monastir Airport to fly home following disruption of the holiday caused by the Arab Spring.
At first instance ( EqLR 1146) the Sheffield County Court (HHJ Robinson) found a prima facie case of failure to make reasonable adjustments. Thomas Cook was a 'service provider' within the meaning of section 29 and therefore under a duty to make reasonable adjustments. Simple steps (such as finding something for her to sit on) could have been taken. Nothing was done. This caused her to suffer from migraine, vomiting and arthritic pain. She was entitled to damages of £7,500.
But this was subject to whether the duty under section 29 applied at all. Specifically whether it was displaced or excluded by paragraph 33(2) of Schedule 3 of the Equality Act 2010. This provides that section 29 does not apply to anything governed by EC Regulation 1107/2006. The Regulation prohibits ‘unlawful discrimination by air carriers and managing bodies of airports towards persons who are disabled or who have limited mobility'. Where the Regulation begins, section 29 ends.
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The Court held that the Regulation would have displaced section 29 had Ms Campbell been at an airport in an EU country. This would have triggered Article 1(2) of the Regulation and in turn all of the Articles of the Regulation. However, as the airport was outside the EU (and Ms Campbell was flying to an EU airport), only Article 1(3) of the Regulation applied. This brought only Articles 3, 4 and 10 into play. These were directed to ensuring that a person who was disabled or had reduced mobility was permitted to board an aircraft. They also required the air carrier to provide, without additional charge, assistance connected with the flight itself and items of luggage to be carried. But, as they did not cover the specific types of reasonable adjustments in issue in this case (which concerned the provision of a chair or a wheelchair while queuing to check-in and check-in assistance), section 29 was not displaced. Ms Campbell was therefore entitled to her damages.
Thomas Cook then appealed to the Court of Appeal (Longmore, McCombe and Vos LJJ) which has now upheld the first instance decision ( WLR(D) 454).
In the second claim, Mrs Campbell claimed that the hotel she was staying in had failed to make reasonable adjustments in providing her access to a swimming pool.
At first instance ( EqLR 108) the Sheffield County Court (DJ Bellamy) found that, in advance of the departure date, Mrs Campbell was informed that the indoor swimming pool at her hotel would not be available, but that she would be able to use the swimming pool at a nearby hotel. However, once she was there, Thomas Cook declined to allow her at no additional charge, to use the nearby hotel and alternative taxi arrangements were not available for her to travel to an alternative swimming pool.
This constituted a failure to make reasonable adjustments. However, her claim did not succeed because, it was held, section 29 did not have extra-territorial effect and so did not apply to events in Tunisia.
Mrs Campbell appealed on the basis that the statute did have extra-territorial effect. On appeal the Sheffield County Court (HHJ Robinson) agreed. It reversed the first instance decision ( EqLR 655) and held that, in the circumstances of the case, it did.
It was noted that the Act was silent as to this issue. It was also noted that the judge at first instance had adopted an "all or nothing" analysis, i.e. the statute could either apply to events occurring overseas or it could not.
The appeal court took a different approach. It held that it was necessary to examine all the circumstances to determine whether "the connection to Great Britain is sufficiently close that the duty to make reasonable adjustments is engaged". In the circumstances of the case, particularly in light of the fact that Thomas Cook employed staff located at the hotel in Tunisia who were able to discharge the duty (and that the discrimination related to a failure to provide facilities offered to a person known to be disabled once it was realised the hotel could not offer them), the connection to Great Britain was sufficiently close.
The issues in this case are clearly of real significance to tour operators and their customers. In particular, it had previously been suggested that section 29 would not apply to services provided abroad. In Campbell No.2 the appeal court rejected this view. This opens up significant potential liability for tour operators.
Further, on any view, Campbell No.2 leaves questions unanswered as to when a connection to Great Britain will be sufficiently close for these purposes.
An issue that does not appear to have been explored in detail in either Campbell No.1 or No.2 is whether a tour operator will necessarily be a ‘service provider' for these purposes.
There was probably little mileage in this on the facts. The court found representatives of the tour operator were providing assistance directly and in person (both at the airport and the hotel). But often a tour operator will not provide services directly, a local supplier will. It may be that, in an appropriate case, this analysis is capable of taking a tour operator outside the scope of the legislation. Conversely, it may be that the broad definition of ‘service provider' in section 29, i.e. as someone ‘concerned with the provision of a service' will be apt to cover this type of situation.
Further litigation on these important issues, perhaps even in Campbell itself, appears likely.