Navigating the friendly skies: what can employers learn from the United Airlines crisis?
Readers will have been unable to avoid the media storm caused by the United Airlines’ scandal, which provoked public outrage from the viral footage of a passenger being forcibly and violently removed from an overbooked flight from Chicago to Louisville.
It later emerged that the passenger, Mr Dao, was a doctor and had to see patients in the morning, so he refused to disembark the aircraft.
The airline sought volunteers to leave the plane in order to make way for four employees to board the plane as they were required to travel to Chicago in the course of their duties. Mr Dao and his wife were randomly selected and he was offered $800 to take a flight the following day. Following Mr Dao’s refusal to leave, the airline could have identified another passenger for removal or raised its offer of compensation for inconvenienced passengers anywhere up to a maximum of $1,350.
Instead, airport security officers were called and, after a heated altercation with Mr Dao, he was violently dragged from the aircraft down the aisle and emerged with a bleeding nose and facial injuries, which resulted in him being hospitalised.
To add insult to injury, Oscar Munoz, the CEO of United Airlines, subsequently described Mr Dao as “disruptive and belligerent” in a statement to staff and told employees that they “followed established procedures”.
Mr Dao has since reportedly launched legal action and one of the security officers involved has been placed on special leave, pending an investigation.
The Chicago Department of Aviation said their officer’s actions were "obviously not condoned by the Department".
There have also been allegations from Mr Dao’s supporters that he may have been singled out and mistreated as a result of his Chinese ethnicity, leading to claims of racial discrimination.
The controversy follows a recent report that United Airlines had previously refused two female ‘Pass Flyer’ passengers boarding because they were wearing leggings, in breach of the airline’s dress code for such passengers.
Charles Leocha, the founder of passenger advocacy group Travelers United, summed up the incident by saying: “This isn't really a lesson for passengers, it's a lesson for airlines. The only lesson here for passengers is when security get on, throw up your hands, because otherwise you're going down the aisle with a fat lip."
There is clearly a plethora of crisis management and public relations issues to be taken on board by airlines and other businesses after a damaging and embarrassing debacle such as this. However, from a legal perspective, what can employers specifically learn from this incident?
Loch Employment Law has identified three key lessons below:
1. Review policies and procedures carefully
Some may argue that an airline’s policy on removing innocent passengers and causing great inconvenience on overbooked flights is abhorrent. Regardless of your views on aviation policy, it is clear that businesses should carefully monitor and amend their terms and conditions and customer policies to ensure they are legally compliant. It is equally vital for businesses to regularly update and review their own staff policies and internal procedures.
United Airlines’ staff may have correctly followed their policy on removing passengers from overbooked flights, but if staff are not familiar with applying this procedure, problems can arise. Where an employer faces severe criticism on a policy, the company should examine and potentially change those policies. In some cases, staff handbooks may need to be updated and adapted. Incidents like this have highlighted that policies on whistleblowing, health and safety, discipline and equal opportunities are a key ingredient for employers to include in any staff handbook.
The security officer in question now appears to be facing disciplinary investigation into his conduct when ‘escorting’ Mr Dao from the aircraft. He has since been suspended by his employer, the Chicago Aviation Authority, pending disciplinary proceedings. Employers who are faced with serious allegations against members of staff should consider their disciplinary policy carefully and determine whether suspension is necessary or appropriate during an investigation process.
2. Adequately train staff to manage difficult situations
Undoubtedly, the airline could have avoided significant criticism if staff had been more understanding and diplomatic when liaising with an uncooperative passenger. While Mr Munoz seems confident that his staff handled the situation professionally in accordance with company procedures, the same may not be said for the airport’s security personnel.
Training staff to deal with sensitive and contentious situations with customers is crucial for all employers who provide a service to the public. All employees handle stressful, heated scenarios in a different way but time spent on training and educating staff can be invaluable for avoiding costly and damaging disputes with disgruntled or ‘belligerent’ consumers.
3. Employers can be liable for the actions of their staff and contractors
Companies should be mindful that unlawful discrimination under the Equality Act 2010 applies to a business’ customers as well as employees. Further, employers should be reminded that that they can be held vicariously liable for instances involving harassment, negligence or discrimination by staff members towards the public.
As a general rule, a business can be vicariously liable for actions of employees but not actions of independent contractors such as consultants. This distinction can become blurred for secondees and agency workers. But in circumstances involving allegations of discrimination such as the United Airlines case, the Equality Act 2010 includes vicarious liability for acts of discrimination.
While vicarious liability is normally limited to employees, liability for discrimination covers other individuals who are contracted to provide services in a personal capacity, including contractors and consultants.
However, an employer may have a statutory defence to vicarious liability for discrimination, meaning that the relevant staff member may bear sole liability for the discriminatory act (and be personally responsible for paying any damages).
The statutory defence will apply if a business can show that it took all reasonable steps to prevent its staff from:
(i) carrying out the discriminatory act in question; or
(ii) doing anything of that description.
Employers can mitigate against claims by implementing an effective equality policy, providing equality and complaints training and dealing effectively with any complaints against the business.
United Airlines’ troubles have demonstrated that negative publicity can implement serious damage to a business of any size. By applying the simple measures above, employers can protect themselves against significant reputational cost and avoid any unnecessary legal turbulence along the way.
Pam Loch is Managing Partner and Gavin Macgregor is an Employment Lawyer of niche employment law practice, Loch Employment Law.
Loch Employment Law is part of the Loch Associates Group also incorporating HR Advise Me, Loch Mediation and Loch Health. For more information please visit www.lochassociatesgroup.co.uk or email firstname.lastname@example.org