British Airways Plc v Williams and Others [Court of Justice of the European Union]
| Jurisdiction | England & Wales |
| Judge | LORD MANCE |
| Judgment Date | 17 October 2012 |
| Neutral Citation | [2010] UKSC 16 |
| Date | 17 October 2012 |
| Court | Supreme Court |
[2010] UKSC 16
THE SUPREME COURT
Hilary Term
On appeal from: A2/2008/0632
Lord Walker
Lady Hale
Lord Brown
Lord Mance
Lord Clarke
and others
Appellant
Jane McNeill QC
Michael Ford
(Instructed by Thompsons Solicitors)
Respondent
Christopher Jeans QC
Andrew Short
(Instructed by Baker and Mackenzie LLP)
LORD MANCE (delivering the judgment of the court)
The relevant law
This appeal concerns the concept of "paid annual leave" for crew members employed in civil aviation appearing in regulation 4 of The Civil Aviation (Working Time) Regulations 2004 (SI 2004 No. 756) ("the Aviation Regulations"). These Regulations were introduced under s.2(2) of the European Communities Act 1972 to comply with the United Kingdom's obligations under Council Directive 2000/79/EC of 27 November 2000 ("the Aviation Directive"), the purpose of which was in turn to implement the European Agreement on the organisation of working time of mobile staff in civil aviation dated 22 March 2000 ("the European Agreement") annexed to the Directive.
Clause 3 of the European Agreement reads:
"1. Mobile staff in civil aviation are entitled to paid annual leave of at least four weeks, in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice.
2. The minimum period of paid annual leave may not be replaced by an allowance in lieu, except where the employment relationship is terminated."
The Aviation Regulations provide:
"4.-(1) A crew member is entitled to paid annual leave of at least four weeks, or a proportion of four weeks in respect of a period of employment of less than one year.
(2) Leave to which a crew member is entitled under this regulation-
(a) may be taken in instalments;
(b) may not be replaced by a payment in lieu, except where the crew member's employment is terminated."
The Aviation Regulations and Directive are part of a wider complex of legislation requiring paid annual leave. Council Directive 93/104/EC of 23 November 1993 ("the Working Time Directive") introduced a general requirement that Member States take measures to ensure that "every worker is entitled to paid annual leave of at least four weeks in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice" (article 7(1)). But it excepted various mobile sectors of activity, viz "air, rail, road, sea, inland waterway and lake transport, sea fishing, other work at sea and the activities of doctors in training" (article 1(3)), and further stated that its provisions should not apply "where other Community instruments contain more specific requirements concerning certain occupations or occupational activities" (article 14).
The Working Time Directive was implemented domestically, with exceptions matching those of the Directive, by the Working Time Regulations 1998 (SI 1998 No. 1833) ("the Working Time Regulations"). These Regulations (as amended by the Working Time (Amendment) Regulations 2001 (SI 2001 No. 3256)) provide that a worker is "entitled to four weeks' annual leave in each leave year" (regulation 13) and "entitled to be paid in respect of any period of annual leave to which he is entitled under regulation 13 at the rate of a week's pay in respect of each week of leave" (regulation 16(1)). Regulations 16(2) and (3) make ss.221 to 224 (and by implication also, it has been held, ss.234-235) of the Employment Rights Act 1996 applicable to the determination of the amount of a week's pay for the purposes of regulation 16. Ss.221 to 224 contain a detailed scheme (originally introduced in the context of redundancy pay) for ascertaining a week's pay in the cases of employments with and without "normal working hours". The scheme includes provisions governing the differing situations of remuneration varying (s.221(3)) and not varying (s.221(2)) with the amount of work done and of remuneration varying according to the times of day or days of the week in which work is required to be done (s.222); as well as provisions governing employments with no normal working hours (s.224). Where the remuneration varies according to the amount, time or hours of work, the computation of weekly pay falls to be derived from an examination of an average position over a defined period of twelve weeks preceding the relevant calculation date, itself defined (ss.221(3), 222 and 224). Under s.234, in the case of an employee who is entitled to overtime pay when employed for more than a fixed number of hours in a week, the employee's "normal working hours" are the number of hours so fixed – unless the contract also fixes a number of hours of overtime which the employer is bound to provide and the worker bound to work, in which case, the employee's "normal working hours" consist in the total number of fixed hours (so excluding any voluntary overtime): Tarmac Roads tone Holdings Ltd. v Peacock [1973] ICR 273 (CA); the same interpretation of s.234 has been applied to a claim under Regulation 16 of the Working Time Regulations: Bamsey v Albon Engineering and Manufacturing plc [2004] EWCA Civ 359; [2004] ICR 1083 (CA).
The exceptions from the Working Time Directive were in due course addressed. Council Directive 1999/63/EC of 21 June 1999 gave effect to a European Agreement dated 30 September 1998 entitling non-fishing seafarers to paid annual leave on the same basis as was in 2000 provided for mobile staff in civil aviation (paragraph 2 above). This was in turn given domestic effect by The Merchant Shipping (Hours of Work) Regulations 2002 (SI 2002 No. 2125) ("the non-fishing Seafarers Regulations"), in language identical as regards paid annual leave to that of the Aviation Regulations (paragraph 3 above), with the substitution of the word "seafarer" for "crew member" (regulation 12).
Directive 2000/34/EC of 22 June 2000 extended the application of the Working Time Directive to all sectors of activity, excluding seafarers as defined in Council Directive 1999/63/EC, and gave Member States until 1 August 2003 to achieve this. However, it also replaced article 14 of the Working Time Directive with a provision that that Directive should "not apply where other Community instruments contain more specific requirements relating to the organisation of working time for certain occupations or occupational activities". With effect from 2 August 2004, the Working Time Directive as extended and amended has been replaced by a consolidated Working Time Directive 2003/88/EC of 4 November 2003, but article 7 remains in identical terms to article 7 of the original Working Time Directive of 1993.
The Aviation Directive of 27 November 2000 was a specific Community instrument within article 14 of the Working Time Directive and was, as stated, implemented domestically in 2004 by the Aviation Regulations. The extension of the Working Time Directive in its original and consolidated form to other mobile workers was further implemented domestically by inter alia The Merchant Shipping (Working Time: Inland Waterways) Regulations 2003 (SI 2003 No. 3049) made 23 December 2003 and The Fishing Vessels (Working Time: Sea-fishermen) Regulations 2004 (SI 2004 No. 1713) made 16 August 2004. In these two sets of Regulations, governing inland waterway workers and sea-fishermen, regulation 11(1) entitles such workers "to" (or, in the case of the latter, "to at least") "four weeks' annual leave and to be paid in respect of any such leave at the rate of a week's pay in respect of each week of leave". They go on to apply ss.221 to 224 for the purpose of determining the amount of a week's pay for the purposes of the right to four weeks' paid annual leave, and to define the relevant calculation date for the purposes of the twelve week period as "the first day of the period of leave in question". They also provide specifically for a worker to be able to complain of failure to pay any amount due under regulation 11(1).
In contrast, neither the non-fishing Seafarers Regulations of 2002 nor the Aviation Regulations made 13 April 2004 contain any detailed provisions which either define the nature or amount of the payment to be made during annual leave or apply ss.221 to 224 of the 1996 Act for that purpose. Nor do they provide specifically for the consequences of failure to pay for annual leave (though the Aviation Regulations entitle a worker to complain of a refusal "to permit him to exercise any right" to paid annual leave, while the non-fishing Seafarers Regulations make contravention by an employer of regulation 12, entitling seafarers to paid annual leave of at least four weeks, a criminal offence). These domestic distinctions can only have been deliberate. It is common ground now that ss.221 to 224 cannot apply to aviation crew members. This appeal therefore turns on the meaning of the phrase "paid annual leave", which is all that the United Kingdom legislator has relevantly enacted. The phrase cannot of course be construed in a vacuum. The Aviation Directive is not directly applicable, certainly not against British Airways which is not an emanation of the state. But it is our duty, as far as possible, to construe the phrase in the domestic Regulations consistently with any requirement inherent in the identical phrase used in clause 3(1) of the European Agreement to which Member States are required to give effect by the Aviation Directive: see e.g. Marleasing SA v La Comercial Internacional de Alimentacion SA ( Case C-106/89) [1990] ECR I-4135, paragraph 8; Pfeiffer v Deutsches Rotes Kreuz, Kreisverband Waldshut eV (Cases C-397-404/01) [2004] ECR I-8835, paragraphs 111-113 and, most recently, Seda Kücükdeveci v Swedex GmbH & Co. KG, ( Case C-555/07) (judgment of 19 January 2010) paragraphs 44-48.
Strictly, the European Agreement is an...
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