In Malone and ors v British Airways Plc [2010] EWCA Civ
1225 the Court of Appeal rejects the contention that BA
was in breach of contract in proposing to reduce staffing levels
which had been previously agreed with the trade unions.
This case is part of the much publicised and long running dispute
between BA and its cabin crews, who are represented by Unite, over
staffing issues. On 6 October 2009, BA unilaterally reduced the
crew complements on its aircraft which had been agreed through
collective bargaining between BA and Unite. It was accepted that
the collective agreement was binding in honour only (as there was
no express agreement to the contrary as provided for by s.179 of
the Trade Union and Labour Relations (Consolidation) Act 1992). It
was also accepted that the Claimants' employment particulars
included a term which provided that her employment was to be
governed by the agreements between BA and the employees' side
of the National Joint Council. Further, the particulars stated that
NJC agreements from time to time in force are deemed to be
incorporated into the individual employment contract and
individuals were specifically referred to that agreement for terms
relating to hours of work, periods of notice, paid holiday
entitlement, sickness benefits and "general maters". It
was also accepted by Counsel that in principle terms relating to
working conditions in that agreement were appropriate for
incorporation into individual contracts and that minimum levels of
staffing provided for by the Air Navigation Order 1989 would be so
incorporated either expressly or impliedly as part of the
employer's duty of care.
The issue was whether staffing levels (known as crew complements)
beyond that level formed part of the Claimants' working
conditions and were thereby incorporated into their individual
contracts. The Court of Appeal concluded that they were not but in
so concluding it rejected the reasons given by the Trial Judge
(Butterworth J).
Referring to NCB v NUM [1986] IRLR 439 and Kaur v
Rover Group Limited [2005] IRLR 40 the Court recognised that
it had to distinguish between those terms "which are of their
nature apt to become enforceable terms of an individual's
contract of employment and terms which of their nature inapt to be
enforceable terms" and that "terms of collective
agreements fixing rates of pay, or hours of work, would obviously
fall into the first category. Terms which deal with procedure to be
followed by an employer before dismissing an employee also would
fall into the first category. But conciliation agreements setting
up machinery designed to resolve by discussion ...question arising
within industry... fall... firmly in the second category". The
Court accepted that in principle working conditions could also fall
within the first category but were persuaded that the parties could
not have intended that the level of cabin crew complements were
intended to be enforceable by each individual member of staff (even
though they had some impact on working conditions) because this
would give each individual the right to refuse to work if BA
decided to or was obliged to fly an aircraft without the agreed
complement. BA's Counsel had argued that this would result in
"anarchy" as an aircraft could be grounded at the will or
one or two uncooperative members of staff. Smith LJ accepted that
such consequences were "so serious as to be unthinkable"
and that "objectively considered in the light of the factual
matrix against which the agreement was made" the parties
cannot have intended the terms that had been collectively agreed
were enforceable by individual employees. Interestingly, the Court
ruled that had it not reached this conclusion, it would have been
open to the Claimants' to seek to enforce those terms by way of
an injunction as damages would have not been an adequate remedy
since it would not have been realistic for the individuals to sue
for damages in respect of a continuing breach.
The issue of incorporation of terms is like to be of particular
importance where, as in this case, the employer is seeking to
change working practices. Where those practices form part of the
contract, change will not be lawful without the employee's
agreement. Whilst, the individual claimants failed in the
particular circumstances of the present case, this was very much a
borderline case and the Court recognises the terms relating to
working conditions may be appropriate for incorporation.
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