A ruling by the court of appeal has left disabled air passengers with no protection from discrimination during their flight, the equality watchdog has warned.
The Equality and Human Rights Commission (EHRC) said the court’s ruling, which dismissed discrimination cases against two airlines, had “narrowed the rights” of disabled air passengers.
The three judges ruled that international rules on air travel – the Montreal Convention – should take precedence during flights over UK law and a European regulation on accessibility and discrimination.
The ruling means that disabled people will not be able to claim compensation from an airline if they face discrimination during a flight.
The EHRC had funded the appeals of two disabled men, Tony Hook and Christopher Stott.
Stott had booked a return flight with Thomas Cook to the Greek island of Zante for himself and his wife – his carer – in September 2008 from East Midlands Airport.
They had been promised adjacent seats, but on the return flight were not allowed to sit next to each other, which made it difficult for Stott’s wife to attend to his personal care needs.
At trial, a judge had ruled that Thomas Cook breached Stott’s rights under the European regulation, but rejected his damages claim because of the Montreal Convention.
In Hook’s case, British Airways failed to make the seating arrangements the airline had promised him and his family for flights to and from Paphos in Greece in July and August 2008, which made it difficult for his care needs to be met.
Hook and his family found the flights so distressing that they pledged never to fly again.
BA had successfully applied at an earlier hearing to have Hook’s damages claim struck out, again because of the Montreal Convention.
In dismissing the two appeals, Lord Justice Maurice Kay concluded that, although there had been “real injuries to their feelings”, this had taken place under the Montreal Convention and not the European regulations, so their compensation claims for “injury to feelings” could not succeed.
EHRC had argued that the Montreal Convention – which covers injury, death and loss of baggage – was “irrelevant” to the rights of disabled travellers because it does not deal with discrimination. EHRC is now considering taking the two cases to the Supreme Court.
Andy Wright, managing director of Accessible Travel and Leisure, said he was “not surprised” by the treatment the two men and their families had received.
He said the EU regulation had helped protect disabled people as they passed through the airport and boarded and disembarked from aircraft, but airlines were “a law unto themselves” once the plane was airborne and were “not answerable, in my opinion, to any governing body who has the power to prosecute or uphold human rights issues”.
He said airlines can “avoid showing any form of human decency” by blaming decisions on health and safety legislation or the Montreal Convention.
Even the involvement of EHRC has had no real impact because “they are not taken seriously by the airlines as they have no real power or authority”, he added.
John Wadham, EHRC’s legal group director, said: “The decision renders the regulation regarding air travel for disabled passengers toothless.
“It offers no protection for disabled travellers who are discriminated against while flying. It also means that disabled passengers cannot get compensation even after an airline has been found to be discriminatory by the courts.”
A Department for Transport spokesman said: “We are currently considering the judgement from the court of appeal in the matter of Stott versus Thomas Cook and Hook versus British Airways.
“This is a complex legal area and we are carefully considering the implications of the ruling and how best to address the issues that it raises.”
16 February 2012