Virgin Atlantic Airways Ltd vs Loverseed, Fenton, O'Connor

This case involved Virgin Atlantic Airways Ltd and three of its former employees, Loverseed, Fenton, and O'Connor, who brought claims for unfair dismissal and indirect discrimination following a redundancy programme initiated during the COVID-19 pandemic.

TLDR:

• Virgin Atlantic Airways Ltd faced claims from former employees for unfair dismissal and indirect discrimination.
• The dispute centered around the disclosure of internal management documents from April to July 2020.
• The Employment Judge ruled that the documents were relevant and necessary for the case.
• Virgin Atlantic's appeal against the disclosure decision was dismissed.

The claimants, Loverseed, Fenton, and O'Connor, were among twelve former flight crew members who brought claims against Virgin Atlantic Airways Ltd. The claims arose from a redundancy programme initiated by the airline at the start of the COVID-19 pandemic in 2020. The claimants alleged unfair dismissal and, for some, indirect discrimination on grounds including sex and age.

On 29 August 2024, Employment Judge Eeley made a case management decision requiring Virgin Atlantic to disclose clean, unredacted copies of internal management documents from April to July 2020. The judge held that these documents were relevant to the issues pleaded in the case and that their disclosure was necessary and proportionate.

Virgin Atlantic appealed against this decision, arguing that the redacted material was not relevant and that its disclosure was not necessary for the fair disposal of the proceedings. The appeal was heard by Sarah Crowther KC, Deputy Judge of the High Court, on 2 May 2024.

During the hearing, the judge considered the arguments presented by both parties. Virgin Atlantic's legal team, led by Paul Epstein KC and Carolyn D'Souza, contended that the financial information within the management documents was not relevant to the claimants' claims. Conversely, the claimants' representative, Oliver Segal KC, argued that the redacted material was crucial for assessing the fairness of the selection criteria used in the redundancy process and for evaluating the proportionality of the criteria in the context of indirect discrimination claims.

The judge found that the redacted portions of the documents were indeed relevant to the issues in the case. Specifically, the documents were relevant to determining whether there was a redundancy situation, the fairness of the selection criteria, and the proportionality of the respondent's actions in the context of the indirect discrimination claims.

The judge emphasized that the relevance of a document for the purposes of CPR 31.6 is not a matter of case management discretion. The judge concluded that the material was likely to affect the parties' cases on the disputed issues, particularly regarding the criteria for selection, their fairness, and their justification as a proportionate means of achieving a legitimate aim.

Ultimately, the judge dismissed Virgin Atlantic's appeal, affirming the decision of Employment Judge Eeley. The judge directed that clean copies of the documents, save for redactions concerning pilot payroll information, be provided within seven days.

Legal representatives: Paul Epstein KC & Carolyn D'Souza (instructed by Gowlings WLG LLP) for the Appellant, Oliver Segal KC (instructed by Ashfords LLP) for the Second and Third Respondents.

Judicial Panel: Sarah Crowther KC, Deputy Judge of the High Court

Case Citation Reference: [2024] EAT 79