Cabin crew complement provisions in collective agreement not incorporated into individual contracts of employment.

British Airways cabin crew brought an action against BA following the decision by BA unilaterally to reduce cabin crew complements on its aircraft below levels previously agreed through collective bargaining between BA and the cabin crew trade union, Unite.


At the beginning of the financial year 2009/10 BA announced its intention to make significant cost savings, including a £140 million saving from cabin crew costs. In October 2009 after months of failed negotiations with the unions BA informed cabin crew of a decision, made unilaterally by the airline, to reduce crew complements2 on flights. No reduction in service standard was intended. One purser position was to be removed from all worldwide flights departing from Heathrow. In addition, all worldwide cabin service directors ("CSDs") were to take part in customer service routines (normally CSDs carried out only supervisory duties during flights). There were further ancillary changes also.

Three cabin crew (all members of Unite) brought an action against BA. They sued on their own behalf, and sought to claim also on behalf of a further 5,428 colleagues who were in a similar position. The cabin crew sought a declaration of contractual rights and an injunction requiring BA to reinstate their cabin crew complements. They argued that a collective agreement provision that stipulated crew complement levels for flights had been incorporated into their individual contracts of employment such that BA could not unilaterally reduce the same. BA contended that the crew complements were inapt for incorporation as there was nothing in the individual contracts of employment that invited incorporation, nor was there intention to create an enforceable term.

The collective agreements at issue were the Worldwide Scheduling Agreement ("WSA") and the Eurofleet Cabin Crew Manual ("ECCM"). Those agreements deal with operational arrangements for cabin crew members and the duties, obligations, rights and expectations of BA and cabin crews. The WSA, at section 7, sets out provisions with respect to crew complements for each type of aircraft in the worldwide fleet operated by BA. Similar but not identical provisions are found in the ECCM.

On appeal from a decision by Sir Christopher Holland, the cabin crew argued that the touchstone for incorporation was whether the provision in question impacted upon the working conditions of the cabin crew. If it did it was apt for incorporation into the individual contracts of employment. BA invited the court to examine (i) whether the provision was a collective matter or a personal one; (ii) the context of the disputed provision; and (iii) objectively viewed, the parties' intention regarding individual enforceability of the provision.

Lady Justice Smith delivering the leading judgment in the Court of Appeal acknowledged that she found the issue "difficult". The WSA and ECCM contained a great variety of provisions, some of which were clearly intended to be enforceable and some of which were clearly intended to be unenforceable by an individual employee. Whether section 7 was intended to be so enforceable was unclear on its language. Nor did examining the section in the context of the entire agreement assist with its construction.

She accepted that on the facts there were pointers towards individual enforceability. However, these were not conclusive. Ultimately she was swayed to find for BA by considering the potentially disastrous commercial consequences that could ensue if the relevant term were to be individually enforceable: individual crew members (any one of more than the 5,000 concerned) could, with impunity, bring flights to a halt by refusing to fly with a reduced cabin crew complement even though the complement was lawful under the Air Navigation Order. "...it seems to me that they [the consequences] are so serious as to be unthinkable." This simply could not have been the parties' intention.

The case stands as a warning to airlines and other employers who enter into collective agreements. It is vital that parties are clear at the outset as to their intention regarding enforceability of provisions and that the language adopted in drafting the same reflects those intentions.

Footnotes

* [2010] EWCA Civ 1225

2 Note: Crew complement levels are distinct from minimum manning levels mandated under the Air Navigation Order 1989.

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