Campbell v Thomas Cook Tour Operations Ltd (Rev 1)

The Court of Appeal considered whether paragraph 33(2) of Schedule 3 to the Equality Act 2010 excludes the application of section 29 of the Equality Act 2010 to alleged disability discrimination in airport services provided at an airport outside the European Union. The court held that paragraph 33(2) removes the domestic duty only in respect of matters that are "governed by" Regulation (EC) No 1107/2006 and that the Regulation, by its terms, applies to airports situated in Member States and only narrowly to certain rights connected with flights from third countries. Consequently the Regulation did not govern the provision of seating and check-in assistance at a third country airport (Monastir) and section 29 duties (including the reasonable adjustments duty in sections 20 and 29) continued to apply. The court therefore dismissed the appeal against the county court finding of liability and did not disturb the award of damages assessed below.

Background and facts:

• The claimant, Mrs Janice Campbell, is disabled by arthritis and had difficulty walking and standing. She was repatriated from Tunisia after civil unrest and was taken to Monastir Airport to catch a flight to the United Kingdom. She waited for about four hours without seating or wheelchair facilities, no flight was available and she returned to her hotel; on a later occasion she suffered migraine, vomiting and extreme discomfort before finally flying home.
• The county court found that Thomas Cook had failed to make reasonable adjustments (auxiliary aids and services) contrary to sections 20(5), 21 and 29(7) of the Equality Act 2010 and awarded damages of £7,500; liability and damages were not appealed.

Procedural posture: The defendant appealed to the Court of Appeal from the County Court at Sheffield (His Honour Judge Robinson). The appeal was permitted and directed to the Court of Appeal by Coulson J under a leapfrog order (CPR Part 52.14(1)).

Nature of the issue and relief sought: The appeal raised a single legal issue: whether paragraph 33(2) of Schedule 3 to the Equality Act 2010 excludes the domestic anti‑discrimination duties in section 29 where the relevant conduct concerns airport services at a non‑EU (third country) airport, because those matters are "governed by" Regulation (EC) No 1107/2006.

Issues framed by the court:

1. What is the scope and territorial operation of Regulation (EC) No 1107/2006 and which airline or airport services does it govern?
2. Do the words "anything governed by [the Regulation]" in paragraph 33(2) of Schedule 3 to the Equality Act 2010 operate to displace section 29 duties in respect of services at a third country airport?

Court's reasoning and conclusion:

• The court analysed the Regulation's recitals and articles and concluded Article 1.2 confines the Regulation to airports situated in Member States, while Article 1.3 provides a limited extension for some provisions (Articles 3, 4 and 10) to departures from third country airports only where the operating carrier is a Community air carrier. Article 10 and Annex II concern carriage and assistance related to the flight rather than airport check‑in services or provision of auxiliary seating at a third country airport.
• The court rejected the appellant's submission that the Regulation should be read as a comprehensive, exclusive code displacing domestic law in respect of the present facts. The court distinguished Sidhu v British Airways (which concerned an international convention incorporated into contract and intended to be a uniform code) and held that permitting domestic law to apply to matters outside the Regulation's scope does not undermine the efficacy of EU law.
• Because the Regulation does not govern the airport check‑in and seating matters at Monastir Airport, paragraph 33(2) did not displace section 29 duties and the county court's finding of discrimination and award of damages remained enforceable.

Appeal dismissed. The Court of Appeal held that paragraph 33(2) excludes section 29 only for matters governed by Regulation (EC) No 1107/2006; the Regulation, by its terms, applies primarily to airports in Member States and only gives a limited extension to specified articles for departures from third country airports which do not cover the airport seating and check‑in auxiliary aids at issue. Consequently the Equality Act duties applied and the county court's decision was upheld.

Appeal from the County Court sitting at Sheffield (His Honour Judge Robinson). The appellant obtained permission to appeal and Coulson J ordered on 21 July 2013 that the appeal proceed to the Court of Appeal by way of a leapfrog appeal under CPR Part 52.14(1). Final hearing in the Court of Appeal resulting in this judgment [2014] EWCA Civ 1668.