Complainant

Respondent

Parties

Ms Yugiong  Li

British Airways Plc

Complainant

Respondent

Anonymised Parties

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Representatives

  Self-represented

David O'Brien Barrister-at-Law

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00065258-001

30/07/2024

10.    The Complainant, a litigant-person, sets out that on the 09/05/2024 and 21/5/2024 that they were discriminated against by the Respondent  contrary to the Equal Status Act.

11.   The Respondent denies this in full and took notice of the status of the Complainant   as a litigant in person and was gracious in affording the Complainant    assistance and patience  and assisting the  hearing to allow for the expression of views of all parties.

12.  Background

The Complainant   did not submit a consolidated  document but had submitted a manual complaint form to the Commission to set out that she had been discriminates  against on the grounds of race.

13.  Seating Issue

The Complainant   set out in their ES1 form that they had arrived at the Dublin Airport in advance, and the counter staff assigned a seat in  of the  aircraft at row 27 without any inquiry. The Complainant   set out that a  white person who arrived later than they were in the first dozen rows. It is her contention that this meant she was treated less favourable on the basis that she is typical Chinese person with ”yellow skin and black hair”.

14.  Customer Service Issue

On the second occasion the Complainant   sets out that when she boarded the second flight she was second in line. The ticket inspector did not inspect her Business Class ticket and asked her to stand aside to let all other Business class passengers through. There is no First-Class seating on this plane and Business Class are loaded first.

The Complainant   sets out that this was witnessed by more than 200 people, as two flights were boarding at the same time beside each other,   and she describes it as a “large scale public execution scene”. She found this deeply humiliating.

She filed a complaint with the Respondent on the 22nd of May, and the staff called to apologise and compensate her with and offer of coupons which she refused.

The Respondent had responded to the ES1 with a completed ES2 form and in response to the Respondent ES2 the Complainant   then  set out the following in writing:

Seat Allocation Issues

The Complainant   stated that, at the time of check‑in, approximately 60% of seats remained unoccupied and asked the Respondent for an explanation of this. Despite this amount of seating capacity, they, the Complainant  ,  were assigned not only a middle seat but a middle seat in the back row (Row 27).

The Complainant   further explains that, on the second leg of the journey—checked in simultaneously—the aircraft was roughly half empty, yet they were again placed in the last row.

Boarding Process Concerns on the Return Flight

The Complainant   states that, at the gate, they were second in line behind a woman travelling alone.

They report that the gate agent instructed them to step aside to allow all other business‑Class passengers to board first. According to the Complainant  , this included a range of solo travellers and business travellers who had originally been standing behind them in the queue. As a result, the Complainant   became the final business‑class passenger to board, by which time the overhead storage above their seat was already full.

The Complainant   adds that, once the Business‑Class queue had fully passed, a second gate agent checked their boarding pass and reacted with surprise, saying, “It’s D!”, which led the Complainant   to realise that staff had mistaken them for an economy‑class passenger.

The Complainant   asserts that this mistake occurred because of their appearance—described as “typical Chinese features”—and because they were wearing a hoodie for long‑haul travel. They state that staff did not examine the boarding pass carefully before directing them to stand aside.

The Complainant   emphasises that boarding for Gates 15 and 17 was taking place simultaneously, with more than 200 passengers observing the incident, causing them significant embarrassment.

15.  Background

In response to the ES1 The Respondent submitted an ES2  and a comprehensive set of documents and appendices to the Commission.

ES1 Form

The Complainant   booked a multi‑flight itinerary through a travel agent, including flights from Dublin to London, London to Beijing, Beijing to London, and London to Dublin.

The Complainant   believed the entire journey had been booked in the Club World (Business Class) cabin. However, the first flight, was booked  as a World Traveller (Economy Class) ticket, and the Complainant   was assigned a seat according to that booking.

Concerning the allocation of a middle seat on BA837, seating on British Airways can be purchased in advance, allowing passengers to secure aisle or window seats. Passengers who do not pay are assigned any remaining available seats, which may include middle seats. The Complainant   was allocated a middle seat in the economy cabin in line with their ticket type that they had actually booked for them. Seating terms and conditions are available on the airline's website.

It is normal for passengers to be assigned middle seats, as not all passengers can receive aisle or window seats. British Airways attempts to accommodate preferences when possible, and passengers have the option to purchase preferred seating during booking. Those who choose not to pay may be assigned any open seat.

Regarding the return flight, BA826, the Complainant   boarded and travelled on this service. In relation to their claim of being held back during boarding, British Airways uses a group‑boarding system intended to reduce congestion. Boarding groups are called according to the number printed on each boarding pass. Special‑assistance passengers and those travelling with children are prioritised, and some disabilities may not be visible, which could explain the priority given to another individual.

British Airways has no evidence indicating that the Complainant   was boarded in any manner inconsistent with standard procedures. The airline’s boarding process is publicly available on its website.

It is standard practice for passengers to be boarded according to their cabin class to support an efficient and streamlined boarding process.

16.  Respondent Full Submission

The Respondent  set out the following in their substantive submissions:

Response to the First Complainant  (Seating)

The Respondent submits that the Complainant   has misunderstood British Airways’ standard seating‑allocation policies. Seating on BA flights is governed by the Customer Service Policy Manual, and the Complainant  ’s seat on Flight BA837 was assigned in accordance with that policy.

The Respondent states that the Complainant   incorrectly believed they were travelling in Business Class. In fact, this flight was booked as World Traveller (Economy Class) as part of an itinerary arranged through a travel agent. The Complainant   was therefore seated in the economy cabin, as reflected in the passenger list. The Respondent further submits that the Complainant  ’s comparison with another passenger seated in earlier rows is misplaced, as that individual may have held a different ticket type or checked in earlier.

Finally, the Respondent notes that the Complainant   had the option to purchase a preferred seat. Passengers who do not pay for seat selection are allocated seats from those remaining at online check‑in, which resulted in the Complainant   receiving a middle seat in the economy cabin.

Response to the Second Complainant  (Queue Complaint)

The Respondent explains that British Airways uses a group‑boarding system designed to reduce congestion. Passengers board according to the group printed on their boarding pass, with boarding normally proceeding by cabin. Special‑assistance passengers and those travelling with children board first. This system applies across all BA departures.

As the Complainant   held a “D” class ticket, they would ordinarily have been in Group 1. However, BA policy provides that Group 0, along with special‑assistance passengers and families, board ahead of Group 1. Therefore, being early in the queue does not guarantee boarding first.

The Respondent submits that the Complainant  ’s allegation—that the gate agent did not check the boarding pass carefully and asked them to stand aside—is not, in itself, capable of constituting discrimination under the Equal Status Acts. Even if the gate agent failed to check the boarding pass properly (which is not admitted), such an error alone does not amount to discriminatory treatment within the meaning of the legislation.

The Respondent maintains that the Complainant   has not established any link between the boarding incident and their race, and therefore the second complaint discloses no basis for an actionable discrimination claim under the Equal Status Acts.

17.  Applicable Legal Principles

‘Discrimination’ under the Equal Status Acts

Under section 3(1) of the Equal Status Acts, discrimination occurs where a person is treated less favourably than another in a comparable situation on one of the specified discriminatory grounds, including race, colour, nationality, or ethnic or national origins. Discrimination may also arise where a neutral provision disproportionately disadvantages a protected group, unless objectively justified.

Section 5(1) of the Equal Status Acts prohibits discrimination in the provision of goods or services to the public, whether paid or free of charge.

Accordingly, to succeed in these proceedings, the Complainant   must establish that they were (1) treated less favourably than a comparable passenger, and (2) that this treatment occurred because of their race, colour, nationality, or ethnic or national origins.

18.  Burden of Proof

Section 38A of the Equal Status Acts provides that once a Complainant   establishes facts from which discrimination may be presumed, the burden of proof shifts to the respondent to show that no discrimination occurred.

The case law confirms that the Complainant   must produce evidence sufficient to raise an inference of discrimination; the burden is “lightened” but not removed. Advocates General and CJEU decisions (e.g., Meister and Kelly) emphasise that unsupported assertions are insufficient.

Irish courts, including in Smith v Office of the Ombudsman, have held that a Complainant   must show facts suggesting less favourable treatment because of race, nationality, or ethnic origin. If these facts are not established, no prima facie case arises, and the burden does not shift.

The Labour Court in Southern Health Board v Mitchell held that a prima facie case requires:

1. Proof of primary facts.
2. Facts sufficiently significant to raise a presumption of discrimination.
3. Only then does the burden shift to the respondent.

Subsequent cases repeatedly confirm that speculation or assertion alone cannot satisfy the evidential burden, and that falling within a protected ground is not enough—there must be facts linking the treatment to that ground. Accordingly, if a Complainant   cannot establish primary facts capable of supporting an inference of discrimination, the claim must fail.

It is also well established that discrimination claims require a comparator, real or hypothetical, who does not share the protected characteristic and who was treated more favourably in a comparable situation. Where a Complainant   cannot identify a valid comparator, no prima facie case arises.

The Respondent submits that the Complainant  ’s attempted comparators are factually unsustainable and should be disregarded.

19.  The Respondent cites:

·        Case C‑415/10, Meister, ECLI:EU:C:2012:8

o   Confirmed the two‑stage burden‑of‑proof structure: (1) Complainant   must establish facts permitting an inference of discrimination; (2) Burden shifts to respondent thereafter.

·        Case C‑104/10, Kelly v National University of Ireland, ECLI:EU:C:2011:506

o   Reinforces necessity of establishing a prima facie case before burden shifts.

·        Smith v Office of the Ombudsman [2020] IEHC 51 (upheld on appeal)

o   Held: Complainant   must show facts giving rise to an inference of discrimination; mere assertions are insufficient.

·        Southern Health Board v Mitchell [2001] ELR 201

o   Sets out the mandatory three‑stage test for establishing a prima facie case.

·        Cork City Council v McCarthy (2008) EDA0821

o   Court must assess whether proven facts are capable of supporting the inference sought.

·        Melbury Developments Ltd v Valpeters [2010] 21 ELR 64

o   “Mere speculation or assertion” cannot constitute a factual basis for alleging discrimination.

·        Ertugrul Altun v Synergy Security Solutions Ltd (ADJ‑00049627)

o   Being from a protected group is not enough; facts must be “of sufficient significance.”

·        Kitchen Porter v Restaurant (ADJ‑00026242, 16 Feb 2021)

o   A difference in treatment plus a protected ground alone is insufficient; the Complainant   must link the two.

·        Graham Anthony & Co Ltd v Mary Margretts (EDA038)

o   Complainant   must adduce additional facts beyond membership of a protected group.

·        Yessica Gibson v Qcafe Co (ADJ‑00053285)

o   Reaffirms necessity of a valid comparator.

·        Oliver Natale v Department of Social Protection (ADJ‑00043240)

o   Complainant  failed due to no comparator identifying more favourable treatment of another racial group.

·        Saoirse Soden v SuperValu Harris (ADJ‑00034460)

o   Comparator considered an essential evidential requirement.

20.  Respondent Conclusion

The Respondent submits that the Complainant   has not met the burden of proof required under section 38A of the Equal Status Acts. To establish a presumption of discrimination, the Complainant   must present evidence of sufficient strength and significance, but the Respondent argues that the Complainant   has offered only speculation and unsupported assertions. No factual link has been established between the treatment complained of and the Complainant  ’s race.

The Respondent further notes that the Complainant  ’s claims appear to rest on misunderstandings of key facts, including British Airways’ seating‑allocation policies and the Complainant  ’s own status as an economy‑class passenger on Flight BA837. As the Complainant has not produced evidence capable of raising a presumption of discrimination, the claim cannot succeed.

Additionally, the Complainant   has not identified a valid comparator, which is essential for assessing whether less favourable treatment occurred on discriminatory grounds. Any comparator suggested has been advanced in error or without sufficient basis. This failure, combined with the lack of substantive evidence, renders the claim unsustainable.

For these reasons, the Respondent submits that the complaint is not well‑founded and should be dismissed.

21.   Misunderstandings

It is quite clear to me the issues at hand involve a great deal of misunderstanding and miscommunication on the part of both parties at the source of this dispute.

It is clear to me  that the Complainant had misunderstood the class of ticket that they were travelling on and being used to First or Business Class travel could not understand the process they were subjected to as an Economy Class passenger. It is clear to me that this should  have been handled better by the Respondent in terms of customer service.

The Respondent in evidence set out the process of loading passengers for flights of various tickets and under affirmation their witness was clear in the full process. What was clear from the evidence was that the allocation of seats is a matter of ticket preference with passengers paying for the different types of seats. It appears to me that the Complainant travel agent had booked them on an economy seat on that leg of the flight and does not, from the evidence, appeared to have booked them a particular seat of any preferential nature.

22.  Booking of Seats/ Automated Assignment

As the main witness for the Respondent set out where a seat is not booked in advance the system will allocate them automatically in the available seat. The Complainant did not demonstrate that they had paid for a preferred seat, and the automated system allocated them a middle seat at the back of the plane.

 In evidence, and in response to my own inquiries, Mr Chaudary explained that automated system does not automatically allocate the middle or least favoured seat. In fact, he set out that the back of the plane is preferred by some passengers, but the system would be less likely to allocate a window  or aisle seat, as these would likely be already chosen by those passengers who had prebooked. It was also set out by Mr Mooney, that even prebooked passengers may not be guaranteed the seat they booked due to engineering issues with the trim of the aircraft, where it cannot be entirely front or rear loaded.

23.  Surrounding Passengers

The Complainant set out that all of the people in or about row 27 where all clearly ethnically Chinese and that this was a clear example of discrimination. She asked for the manifest to be made available which  would clearly show by their names that this was the case. Obviously, for any number of reasons including GDPR this would not be possible.

24.  Queuing Complaint

On the matter of the  queuing complaint, the Complainant had asked why if other had arrived later they would be loaded preferentially to her and highlighted these were all white people and she took umbrage, rightly, at what she described as being mocked by a white male in the queue. However, she brought forth no evidence or this or witnesses, nor that the BA staff had seen the same where they might have been compelled to intervene. It was explained to the hearing that the queuing was arranged according to BA policy, a document that was freely available to anyone booking the flight and on the website. The Respondent exhibited the same and asked the Complainant to accept that this was the case. The Complainant declined to view the exhibited material  and was uncooperative in the examination and would  not offer a response to the question in cross-exam.

Setting out that passengers with special requirements including children were loaded first and then through the passenger types with economy last. The Complainant wished to know the disabilities of the people loaded in this manner and what certification of their disabilities were.

Clearly, this is not appropriate information that could be shared by the Respondent, but the Respondent did wish to point out that not all disabilities are visible. The Complainant challenged how they would then know these people had disabilities and in response to this the Respondent very convincingly and credibly set out that they would have made it known at the time of booking or can make it known discretely to the ground crew before the call for passengers was made.

25.  Abib v Dublin Airport Authority PLC (ADJ-00020822)

The Respondent wished to open a case to the hearing of  Abib v Dublin Airport Authority PLC (ADJ-00020822) . Neither I nor the Complainant were on notice of this case, and I enquired of the Complainant if she wished to have time to review and respond to this case, it not being in the extensive documentation provided by the Respondent. The Complainant responded through the Interpreter that she was no longer  listening  to the Respondent Barrister, and he could just explain it to the me.

Mr O’Brien outlined the case of and how it mirrors the circumstances of the current case. I took note of this for my deliberations. This case is on all fours with the current case that the Respondent in that case were following their procedures and a claim of discrimination could not arise.  It also sets out clearly the Melbury case where mere assertions unsupported by evidence cannot be considered factual and the principles in Margetts that belonging to a protected group is not in itself enough to ground a case for discrimination.

In Abib, like this case the Complainant was aggrieved, in relation to the events that occurred but this does not discharge the burden on that  complainant or the current  Complainant.

26.  Summing Up

In asking the parties to sum up their case if they wished. The Respondent set out their case in brief and the case law on the Act to date,  the Complainant declined and asked for my decision on the matter. I informed both parties that it would be some weeks before my decision would issue.

The Respondent opened a significant amount of case law, and this is listed under their position, and it is necessary for me to relist it in its entirety here, but all of the relevant cases were considered in my deliberations.

27.  Conclusions

The Complainant was a litigant in person and provided a modest submission to the Commission on their case in the complaint form, the ES1 and the Commission was furnished with a copy of the ES2 by the Respondent.

The Respondent also provided the Commission with substantive documentation and cited a significant amount of case law all of which have been considered in the making of my conclusions and findings.

It is quite clear to me that the Complainant holds a strong belief that they were discriminated against by the Respondent. Clearly, they have been treated differently than that have experienced before and as they expected on this occasion. This, however, is not enough to ground a complaint of discrimination and the events appear to be more in line with customer service dispute.

Comparator

The Comparator referred to by the Complainant is another white person and refers to them coming later and being given a preferential seat to the Complainant who was in a least favoured seat. It is not entirely necessary to name an actual person as a comparator, but this in itself cannot be classed as discrimination as any number of reasons could lead to the person being seated preferentially in that they may have made a full booking in advance for the seat they wanted. This is not a valid comparator to ground a complaint of discrimination and am not satisfied that the complainant has established facts from which discrimination may be inferred. Therefore, the burden does not shift to the respondent

Establishing the Connection Between Treatment and the Protected Characteristic

The Respondent has helpfully set out the applicable legal principles. Firstly, that discrimination is where a person is treated less favourably and  this is because of their specified ground, in this case, race. It is clear to me that the Respondent had some failings in customer service on the second leg of the complaint, but I can find no evidence to show that this was because of the Complainant’s race, colour, nationality, or ethnic or national origins. I can also find no neutral provision that disadvantages the Complainant where the seating allocation was an automated process and they produced no witnesses or evidence to demonstrate the same.

Similarly, in the queuing complaint, I have no evidence or witnesses to show me that the Complainant was disadvantaged in any way by the Respondent where she herself in her documentation refers to the ticket inspector not carefully inspecting her ticket that showed she was not Economy class. The Complainant was clearly not prepared for the distress this caused her, but I cannot find this is a complaint that is encompassed by the Equal Status Act, but rather a customer service complaint.

Prima Facie Case

Accordingly, the Complainant has not established a case for a comparable passenger nor that the predicament they encountered was because of any protected status. The Complainant has not provided me with a prima facie case for the Respondent to answer. I am conscious of the case cited of Southern Health Board v Mitchell  and other case law cited by the Respondent  that there is no proof of the primary facts put forward that raise a presumption of discrimination  to shift the burden to the Respondent. I would highlight the findings in Kitchen Porter v Restaurant (ADJ‑00026242) and Graham Anthony & Co Ltd v Mary Margretts (EDA038) that differing treatment plus a protected ground must be demonstrably linked and that the Complainant must adduce additional facts beyond membership of a protected group.

Final Conclusion

I can only find that the comparator offered to me is not sufficient nor are the primary facts submitted by the Complainant enough to establish a presumption of discrimination and the complaint must fail.

I found the evidence and submissions of the Respondent to be highly credible, and I have to agree with their own conclusion that no discrimination took place.

For the reasons outlined above I find that the Respondent did not engage in any acts of discrimination set out under the Acts and accordingly, I find the complaint is not well-founded within the meaning of the Equal Status Acts.

Misunderstanding, miscommunication,  automated seating assignment, seat preference and, boarding group policies, special assistance priority, invisible disabilities, primary facts not established, no causal link to protected ground, customer service issue vs discrimination,