A Kiwi passenger has received a $13,555 payout after successfully claiming his business-class experience on an Emirates flight was not as advertised. A consumer law specialist says the case will give airlines pause for thought in their marketing.
Mark Morgan was looking forward to his European holiday with wife Jane. A chance for the pair to slip out of the country at the end of the 2022 New Zealand winter, to catch up with family and friends in the UK.
When it comes to airline service, Emirates is often judged among the world’s best. But after the ravages of Covid, the airline had been using some older Boeing 777-300 aircraft on the Auckland-Dubai route, rather than the double-deck, more modern Airbus A380s.
And that’s where things became a little turbulent for Tauranga-based surgeon Morgan and his wife.
They paid thousands to fly Emirates business class - wooed by advertisements that showcased lie-flat business-class seats on the 777, and the chance for the pair to arrive in Kuala Lumpur and then Dubai (and on a different Emirates aircraft to London) in the best shape possible.
But after Morgan eased on board in Auckland, he discovered his business-class seat was ‘angle-flat’ rather than the advertised lie-flat – essentially the seats push back at a tilted angle of 166 degrees rather than the straight-out 180 degrees.
Adding to the woes, the seat was “not well upholstered, and were uncomfortable”, Morgan told the Herald. There were no USB ports.
“If I had known what the actual product was, if they had been truthful, I would have gone with another airline.”
It was, in his opinion, “bait advertising”.
That’s an assertion that Emirates has rejected but Morgan wasn’t taking the fight – or indeed, the flight - lying down.
Morgan turned to his computer, spending hours researching Emirates’ marketing and advertising, flight schedules and New Zealand consumer law. He tried to engage with the airline’s call centre and local management, with, he says, limited and generic responses – and no success in terms of compensation.
Determined that he was in the right, he took his case to the Disputes Tribunal, which conducted two hearings in December and February.
The airline, through its New Zealand general manager Chris Lethbridge, rejected any suggestion of misleading advertising, saying its marketing expressly stated that business-class features “may vary from those advertised”.
Furthermore, the airline submitted to the tribunal, even if it was to be found in breach of the Fair Trading Act or the Consumer Guarantees Act, “the applicant has suffered no loss and therefore is not entitled to any compensation”.
“Although the business class service advertised on Emirates’ website was generally available for flights between Auckland and Dubai, no such service was available on the dates of the applicant’s flights,” Emirates told the tribunal.
“Emirates had no obligation to provide the applicant with this service, and instead provided him with an alternative (but equivalent) business class service. Emirates’ entitlement to do this had been communicated to the applicant both through the Conditions, and through the material contained on Emirates’ website.”
And, it further stated, “To the ordinary air traveller, the seat made available to the applicant is equivalent to a lie-flat seat”.
But in a decision dated March 1, Disputes Tribunal adjudicator Laura Mueller found that the “newer planes with the advertised business class configuration are only very occasionally flown to New Zealand”.
She said Emirates, in its own submission, stated the newer planes had been required on other routes at the time, as the New Zealand services were operating at a loss.
The adjudicator found Emirates advertised a business-class service to New Zealand that consumers “were very unlikely to receive”.
“The advertising of a service that Emirates knew would unlikely be delivered is misleading and deceptive” under the Fair Trading Act.
“Mr Morgan argues that Emirates marketing materials were intended [to] lure NZ customers away from other airlines services to purchase a service from Emirates that essentially did not exist. The Tribunal agrees.”
It ordered that Emirates pay Morgan $13,555.07 – that being 50 per cent of the difference between Business Class and First Class for he and his wife for the four legs of their six-leg trip. Emirates had earlier offered a refund of $786.
Emirates now has the A380s – with lie-flat business-class beds - back flying to New Zealand.
Morgan – who acknowledges his pleasure over the legal win – says potentially thousands of travellers suffered the same experience as him and his wife.
Bell Gully senior associate and consumer law specialist Kristin Wilson says airlines are likely to take this case into account when considering how they are advertising services.
And she says other claimants could come forward to make similar claims, when they realise a favourable outcome is possible.
“Any claim would need to have arisen within the past six years. The fact the Tribunal found for Mr Morgan in this case does not necessarily mean that future applicants would get the same result, as the Tribunal considers each case on its substantial merits rather than the letter of the law,” says Wilson.
She said claimants like Morgan were much more likely to be successful if they prepared their case carefully, with evidence.
“The fact that Mr Morgan recalculated his claim for a lower amount than he originally sought may have assisted the referee to reach the view that the amount claimed was reasonable and fairly reflected the difference in service advertised versus the service received,” said Wilson.
“The result would likely have been different if the lower quality service offering was genuinely a one-off change due to operational requirements, as opposed to Emirates having advertised a service customers were unlikely to receive.
“This is an example of the point that fine print, or terms and conditions, cannot be used to remedy a misleading impression given by the main message of the associated advertising.”
The Herald sent a list of follow-up questions to Emirates. It did not answer these directly, instead sending a public relations comment through a spokesperson.
“Emirates stands by its high-quality products and services across all of its cabins and aircraft,” the spokesperson said.
“Like all airlines, global operations were impacted during the pandemic, however we remained steadfast in our commitment to New Zealand, and continued to serve the country, connecting families, carrying essential goods, and keeping trade lanes open to support the local economy.
“This commitment continues with the reintroduction of daily non-stop Emirates A380 travel into Auckland in December 2022, as well as the daily Christchurch A380 service, resuming in a few short days on March 26. In addition, New Zealand will become the only market on Emirates’ network to exclusively operate the airline’s four-cabin A380.”
The airline sold its last slots at Heathrow in 2020.