Campbell v Thomas Cook Tour Operations Ltd (Rev 1)

Paragraph 33(2) of Schedule 3 to the Equality Act 2010 excludes section 29 duties only for matters governed by Regulation (EC) No 1107/2006. The Regulation’s airport-assistance provisions are directed principally to airports in Member States. Its limited extension to third-country departures covers specified provisions concerning carriage and flight assistance, not airport or check-in services. A third-country airport service therefore remains subject to domestic equality duties where it falls outside the Regulation. Applying domestic law in that gap does not undermine EU law.

The claimant booked a package holiday in Tunisia with the defendant. Following civil disturbances, she was taken to Monastir Airport for repatriation. She received no seating or wheelchair assistance while waiting and suffered a migraine and extreme discomfort. The Sheffield County Court found that the defendant had failed to make reasonable adjustments under the Equality Act 2010 and awarded £7,500. The defendant appealed on the construction of paragraph 33(2) of Schedule 3. The central issue was whether Regulation (EC) No 1107/2006 governed airport and check-in services at a non-EU airport so as to exclude section 29 duties.

Lord Justice Vos gave the leading judgment. Lord Justices McCombe and Longmore agreed.

1. Appeal dismissed. The County Court’s findings of disability discrimination and liability were not challenged. The appeal concerned only the construction of paragraph 33(2) of Schedule 3 to the Equality Act 2010.
2. The purpose and scope of Regulation (EC) No 1107/2006 show that its airport-assistance provisions are directed to airports in Member States. Article 1.2 therefore did not extend the Regulation to Monastir Airport in Tunisia. Article 1.3 made a limited extension for passengers travelling from a third-country airport to a Member State on a Community air carrier.
3. That extension applied only to Articles 3, 4 and 10. Articles 3 and 4 concern refusal of reservations or boarding, rather than airport services. Article 10 and Annex II concern assistance connected with the flight. Article 7 deals with airport and check-in assistance, but does not extend beyond airports in Member States. Airport and check-in services at a third-country airport were therefore outside the Regulation.
4. The argument that a directly applicable EU regulation overrides all national law with the same general subject matter went too far. National law may impose additional duties in areas not covered by the regulation. Sidhu v British Airways [1997] AC 430 was distinguishable because the Warsaw Convention was intended to be a uniform and exclusive code in the areas it covered. The Regulation was not a complete code for disability provision at airport services outside the EU.
5. Paragraph 33(2) meant what it said: section 29 did not apply only to anything governed by the Regulation. Since the airport and check-in services in issue were not governed by it, paragraph 33(2) did not exclude section 29. The appeal was dismissed.

• Court of Appeal (Civil Division): In [2014] EWCA Civ 1668, the court dismissed Thomas Cook’s appeal. Coulson J had directed that the appeal be heard by the Court of Appeal rather than the High Court as a leapfrog appeal under Part 52.14(1) of the Civil Procedure Rules 1998.
• Sheffield County Court: His Honour Judge Robinson’s judgment dated 23 May 2013 found Thomas Cook liable for disability discrimination and awarded the claimant £7,500.