Malone and Others v British Airways Plc
| Jurisdiction | England & Wales |
| Judge | Lady Justice Smith,Lord Justice Jackson,Lord Justice Ward |
| Judgment Date | 03 November 2010 |
| Neutral Citation | [2010] EWCA Civ 1225 |
| Docket Number | Case No: A2/2010/0578 HQ09XO4816 |
| Court | Court of Appeal (Civil Division) |
| Date | 03 November 2010 |
[2010] EWCA Civ 1225
SIR CHRISTOPHER HOLLAND
Before: Lord Justice Ward
Lady Justice Smith
and
Lord Justice Jackson
Case No: A2/2010/0578
Case No: A2/2010/0578(Y)
HQ09XO4816
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEENS BENCH DIVISION
John Hendy QC & Oliver Segal (instructed by OH Parsons & Partners) for the Appellants
Bruce Carr QC & Andrew Burns (instructed by Baker & McKenzie LLP) for the Respondent
Hearing dates : 11 & 12 October 2010
Lady Justice Smith:
Introduction
This is an appeal from the order of Sir Christopher Holland, handed down on 19 February 2010, following the trial of an action for breach of contract brought by a group of cabin crew employees against their employer British Airways PLC (BA). In the action, there are over 5000 claimants, all cabin crew members working from London Heathrow (LHR). However, for the purposes of the trial, three lead claimants were selected, Miss Elizabeth Anne Malone, Mr Nigel Antony Stott and Mr Marcel Devereux.
The claimants' allegation was that, on 6 October 2009, BA unilaterally reduced the crew complements on its aircraft below the levels which had been agreed through collective bargaining between the employer and the employees' trade union, Unite. The claimants alleged that the collective agreement which stipulated the crew complement levels had been incorporated into their individual contracts of employment and was enforceable by them on an individual basis. They sought declarations as to their contractual terms, injunctions requiring BA to comply with the crew complement levels in operation before the unilateral reduction, damages and costs.
BA's stance was that, even though some collective agreements negotiated between it and Unite were incorporated into the employees' contracts of employment, the particular provisions relating to crew complements were not. These terms were not apt for inclusion in individual contracts and the parties to the collective agreements had never intended that crew complement provisions should be enforceable by individual employees.
On that main issue, which I will call the incorporation issue, Sir Christopher Holland accepted the submissions of BA and dismissed the claims. The claimants now appeal.
BA had also raised an alternative defence which applied only to some of the claimants. The employment contracts of about 60% of the claimants contain a clause which entitles BA to make reasonable changes to the terms. Although at the time of reducing the cabin crew complements, BA had not purported to rely on this contractual provision, it took the point in the litigation. It argued that, in the light of the company's parlous financial position during 2008 and 2009, the reductions in crew complements were reasonable changes which could be made unilaterally. The claimants argued that, even if these clauses were valid (which they disputed) the changes in question could not be described as reasonable. The judge said that, if he were wrong on the incorporation issue, he would hold that BA could reduce crew complements in reliance on the reasonable changes clause. The claimants appeal on this issue also, as they do in respect of the judge's indication that, if he had found in the claimants' favour, he would still have refused to grant injunctions.
The factual background
BA, which was incorporated as a public limited company in 1987 following its denationalisation (having been formed from British European Airways and the British Overseas Airways Corporation in 1974), operated three airline fleets in 2009. Its Worldwide Fleet and Eurofleet operate out of LHR. These fleets required the services of about 11,500 cabin crew employees in 2009. There is also the Gatwick Fleet, which flies long and short haul, and operates, as the name implies, from Gatwick Airport. This fleet has about 2000 cabin crew employees. BA also employs its International Cabin Crew (ICC) based at various overseas locations.
In 2009 about 96% of cabin crew employees were members of the trade union Unite. Historically, this group of employees was represented by the British Airways Stewards and Stewardesses Association (BASSA) which was a branch of the Transport and General Workers Union (TGWU). In 1989, some members broke away and formed a union called Cabin Crew 89. In due course this became a branch of the union Amicus. Much more recently, Amicus and the TGWU amalgamated to form Unite. However, the old division still exists and the former BASSA members and the former Cabin Crew 89 members form different branches of Unite. Both branches are separately represented at negotiations with BA.
The relationship between BA and the trade union branches representing the cabin crews is, in my experience at any rate, rather unusual. Issues which might usually be regarded as falling within the sphere of management are the subject of bilateral negotiation resulting in collective agreements. There may be historical reasons for this; if so they do not matter. The present position is that there are several collective agreements between BA and the relevant trade unions which appear to cover almost every aspect of the cabin crew working terms and conditions. None of these collective agreements is enforceable as between BA and the trade union in that in none of them is there any express intention recorded that the agreement should be enforceable, as is required by section 179 of the Trade Union and Labour Relations (Consolidation) Act 1992.
The claimants in this action have commenced their employment at different times over the past 30 years or so and the written particulars of the terms of employment with which they were issued vary to some degree. However, it is common ground that all the written particulars with which we are concerned expressly state that the collective agreements are incorporated into the contract. The particulars of Miss Malone, the first lead claimant, are typical and, so far as the issue of incorporation is concerned, nothing turns on the differences between this document and the particulars of any other claimant. Condition B1 of Miss Malone's particulars state:
“Your employment …will be governed by…the Agreements between (BA) and the Employees' side of the NJCA (National Joint Council) so far as the same are applicable to your particular appointment. The NJC Agreements from time to time in force are deemed incorporated into this contract and you are referred to these Agreements for details of your hours of work, periods of notice, paid holiday entitlements, sickness benefits and general matters.”
Although there were several collective agreements, we are concerned with only two, the Worldwide Scheduling Agreement (WSA) dated November 2005 and Eurofleet Cabin Crew Manual (ECCM) dated February 2004. These agreements deal with the operational arrangements for cabin crew members and the duties, obligations, rights and expectations of BA and the crews. The WSA deals with such matters as hours of work, maximum trip lengths, rostering, reporting times, procedures for cancelled or delayed services, crew complements, working positions on board, duty periods, rest periods including the arrangements for in-flight rest and refreshment breaks, minimum turnaround times and standby arrangements.
The WSA and ECCM do not include pay or pension arrangements; nor do they deal with sickness absence or matters such as grievance and disciplinary procedures. Those matters are covered by separate collective agreements.
It appears to be common ground that, in the past, no changes have been made to the WSA or the ECCM without such changes being bilaterally agreed. Whether such agreement was a legal necessity is contentious but that is how the two sides operated in the past. There had been an occasion in the past when BA wished to reduce the crew complements and the union's agreement was given very reluctantly but BA had never previously imposed a crew complement change unilaterally. The agreements in operation at LHR were said to be 'negotiable' rather than 'consultative'. The position was different at Gatwick where the comparable arrangements were contained in so-called agreements which were said to be only 'consultative' rather than 'negotiable'. Whether those documents could properly be described as 'agreements' is a moot point.
As I have said, the WSA and ECCM contain crew complements for each type of aircraft operated. These crew complements are distinct from the minimum manning levels required under the Air Navigation Order 1989, which by paragraph 19 in Part IV provides that an aircraft shall not fly unless it carries a flight crew of the number and description required by the law of the country in which it was registered. So, for example, for a Boeing 747, the minimum number of cabin crew, as set by the Federal Aviation Authority in the USA is 12. It seems clear that the rationale of these minimum complements is to ensure the safety of the operation of the aircraft and its passengers and crew. However, BA has always recognised that, because it provides high standards of service to its passengers, it will need a greater crew complement than the legal minimum.
There are three grades of cabin crew. These are, in descending order, cabin service director (CSD), purser and main crew member. CSDs normally carried out only supervisory duties; they did not take part in actually serving the passengers, although I understand that they might do so if an unforeseen event made the other...
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