Holiday Pay for Pilots and Cabin Crew – Is the UK Government in breach of its obligations?

Dated:

In a recent decision, British Airways v Williams & Others (2009 EWCL Civ 281), the Court of Appeal has ruled on the meaning of the right of pilots and cabin crew to 4 weeks “paid annual leave” under the Civil Aviation Working Time Regulations 2004 (“The Regulations”). In this case pilots were paid only basic pay during their holiday and not their normal pay, which includes allowances and supplements.

The Regulations are designed to implement the EU Working Time Directive and the more specific requirements of the Aviation Agreement between the airline industry and the unions in the industry in the EU. The Court said that there was EU case law that “paid annual leave” in the Working Time Directive did mean “normal” pay or “pay comparable to that which a worker earns while working”.

However, the Court said that EU Law allowed member states to decide on the precise calculation of what that meant. The Court said that the Regulations, being silent on the calculation of holiday pay, leave it as a matter to be agreed between the employer and employee. The Court accepted that it could be said that the UK’s implementation of the Working Time Directive, “left a partial void in what was required of it under Community Law” but said that, if this was the case, the only way a remedy could be achieved was by taking a claim against the member state, the UK Government, (as was done in the case of Francovich and Bonfaci v Italy 1991 ECR 1-5357) for a breach of its obligation to properly implement the Directive and the Aviation Agreement.

The Court did indicate that the employer was under some obligation to pay holiday pay but suggested that only where the amount that was paid was “only a token or derisory amount” could there be a complaint, or possibly where the amount was so low the employee was discouraged from taking leave. The Court did not even say there was a right to basic pay while on leave.

Some of the airline industry is unionised, but by no means all. The EU lays down employment rights to address the imbalance in bargaining power between employers and employees, especially in non unionised work forces, and to promote health & safety. The Court of Appeal’s interpretation of the Regulations undermines this purpose and leaves uncertain exactly what holiday pay pilots and cabin crew are entitled to, which is unsatisfactory for both employers and employees. It also indicates that the UK Government may be in breach of its obligations to properly implement the Working Time Directive and the associated Aviation Agreement.




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