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PI and Civil Litigation

Law - practice - procedure

17 MAR 2014

Suing Tour Operators for Disability Discrimination

Suing Tour Operators for Disability Discrimination

Campbell v Thomas Cook Tour Operations Ltd

An individual on a package holiday suffers from a disability. There is a failure to make reasonable adjustments for her as she waits to board her return flight to the UK at an airport in a country outside the EU. Can she sue the tour operator for this pursuant to section 29 of the Equality Act 2010? This was the question before the Sheffield County Court (HHJ Robinson) in Janice Campbell v Thomas Cook Tour Operations Ltd.[1]

Mrs Campbell bought a winter holiday in Tunisia from Thomas Cook. Her holiday plans were disrupted by the Arab Spring. A short time into the holiday she was offered repatriation. She was taken to a crowded Monastir Airport on 15 January 2011 but was unable to board a flight that day. She was taken back to the airport the next day and did board a flight back to the UK.

Mrs Campbell suffers from arthritis. She has difficulties walking and standing. She is also predisposed to developing migraines as a result of brain damage sustained when he was 15.

The Court found a prima facie case of failure to make reasonable adjustments to be made out. Thomas Cook was a 'service provider' within the meaning of section 29 of the Act and therefore under a duty to make reasonable adjustments by the provision of auxiliary aids for Mrs Campbell. Simple steps (such as finding something for Mrs Campbell to sit on) could have been taken. Nothing was, in fact, done to assist her when she was at the airport. This caused her to suffer from a migraine, severe vomiting and arthritic pain. She was therefore entitled to damages of £7,500.

However, this conclusion 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 Act. 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.

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.

The case highlights at least 2 principal points. First, the care which must be taken when bringing a claim of this nature. The field has become highly technical. It is governed by several sets of legislation, some domestic (such as the 2010 Act), some EU (such as the Regulation), and some Treaty-based (such as the Montreal Convention).

One piece of legislation may displace another or have exclusive application (see also Stott v Thomas Cook Tour Operations Ltd and Hook v British Airways [2012] EWCA Civ 66). Suing under the correct legislation may be crucial. Different legislation may impose standards or obligations. It may also impose them on different parties (eg an airline, or a tour operator, or several parties). This may affect the correct choice of defendant.

The analysis in this case also demonstrates that a claimant must carefully identify at an early stage the reasonable adjustments that should have been made (or the particulars of discrimination) and who was responsible for them. This may be determinative of the applicable regime(s). It appears that, had Mrs Campbell's complaint related to assistance connected with the flight itself or items of luggage to be carried, as opposed to provision of a chair or a wheelchair while queuing to check-in and check-in assistance, the result would have been different.

Second, the potential breadth of section 29 of the Equality Act 2010 in this context. It had previously been suggested that section 29 would not apply to services provided outside the UK, eg in hotels or at airports abroad (Saggerson on Travel Law and Litigation, 2013, para 10.198). The Court did not appear to see the legislation as being so limited. Or at least the point was not taken.

A potential future issue is whether a tour operator will necessarily be a ‘service provider' for these purposes. There was probably little mileage in this point on the facts of Campbell since representatives of the tour operator were providing assistance directly and in person at the airport.

But often a tour operator will not provide services directly. Rather, a local supplier, such as an airline, airport or hotel, will. While a tour operator may be, in effect, vicariously liable for improper performance of the holiday contract pursuant to the Package Travel, etc. Regulations 1992, it might be said (as the phrase is conventionally understood) not to be providing the services itself. It remains to be seen whether, in an appropriate case, this analysis is capable of taking a tour operator outside the scope of the legislation. It may be that the broad definition of ‘service provider' in section 29, ie as someone ‘concerned with the provision of a service' will be said to be apt to cover this type of situation.

[1] Campbell v Thomas Cook Tour Operators [2013] EqLR 1146, Sheffield County Court, 23 March 2013.

Daniel Clarke, Barrister, 3 Hare Court

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