Ryanair has angered staff and customers after disastrous errors with its pilot rota. The company could now risk unofficial industrial action through sickness absence, as was the case at Southern Rail last year, report Richard Nicolle and Joseph Lappin from Stewarts.

The situation at Ryanair increasingly has an air of Southern Rail about it.

Already facing a public and media backlash, the airline’s chief executive Michael O’Leary risked angering staff this week by announcing that pilots would be forced to cancel their holiday plans in order to ensure Ryanair could keep enough planes in the sky next month.

He reportedly told shareholders at the airline’s AGM on 21 September that the agreement of the pilots was not necessary because “it is part of our working agreements with the pilots and our rostering agreements that if we need to take back holidays, with reasonable notice, we can do so”.

Whether Ryanair is able to require pilots to alter holiday arrangements will depend on their employment status and individual contracts.

By some estimates, as many as half of Ryanair pilots are engaged by the airline through personal service companies as self-employed contractors.

Unlike employees, self-employed pilots would not ordinarily be entitled to paid leave.

Nevertheless, they will still agree times with Ryanair on when they will be on holiday and therefore not able to work as pilots. It would be open to them to refuse to work during times they have set aside for holiday.

Risky relationship

However, refusing to work during periods in October (when they have booked leave) risks souring the relationship they have with Ryanair, which has no obligation to offer any work to genuinely self-employed pilots.

Pilots who are employees of Ryanair will have the right to the minimum statutory annual leave entitlement of 5.6 weeks under the Working Time Regulations 1998 (WTR), but they may also be entitled to enhanced annual leave periods under their employment contracts or Ryanair’s holiday policy.

Ryanair can, in accordance with the WTR, cancel pilots’ pre-booked holiday if they give the pilots the correct notice of cancellation.

An employer must give notice of at least the same length as the period of holiday requested by the employee.

However, it is open to the parties to agree contractually that longer notice periods must be given by the employer before cancelling an employee’s holiday.

On the basis of O’Leary’s comments to shareholders, it would appear that Ryanair is confident it can cancel the pilots’ leave on short notice.

However, the fact that the airline is apparently offering pilots relatively substantial one-off payments for deferring part of their accrued holiday entitlement (which many pilots have rejected in pursuance of better employment terms generally) would seem to suggest that Ryanair may not contractually be in a position to compel their continued working.

Furthermore, if pilots would not be able to take their full statutory entitlement before the end of the holiday year, they should be able to decline the airline’s request that they continue working during periods of booked holiday.

Further grievances

If Ryanair were to compel pilots to defer a week’s leave as suggested and this was contrary to their contracts of employment the possibility would arise of pilots raising grievances and ultimately resigning and claiming constructive dismissal.

Even if Ryanair is contractually entitled to cancel pilots’ leave, the pilots might still take the course of resigning and claiming constructive unfair dismissal on the basis that the cancellation of their holiday at short notice amounts to a breach of the trust and confidence the airline owes to them, especially if they have already paid for their booked holidays.

Generally this would, however, be a position of last resort.

An alternative would be for pilots to refuse to work or for a situation to arise similar to that affecting Southern Rail, where there was a spike in sickness absence during its recent spate of industrial disputes.

A similar situation also arose recently at Air Berlin, when one sixth of the struggling company’s pilots phoned in sick on the same day after the airline announced it would end operating long-haul flights, which are better remunerated than short-haul work.

It has been reported that Ryanair pilots are using Whatsapp groups to discuss the airline’s problems and to seek a collective approach to striking better working conditions.

It is significant that Ryanair’s prized model of a non-unionised workforce is being subjected to a degree of collective challenge as a result of ill-feeling among the pilots. This stems from demoralisation regarding working arrangements but has been compounded by the rota error and pilots’ sense that they have been taken for granted.

There is also an element of the pilots appreciating that Ryanair is in a mess of its own making, and that their services are needed to avoid potentially significant liability for Ryanair as a result of cancelled flights.

O’Leary’s candid comments can be interpreted as an attempt to demonstrate publically that Ryanair is managing the situation.

However, a breakdown in the relationship between the airline and staff could plunge flight schedules into even greater chaos and hand the workforce unprecedented leverage to extract more concessions – over and above the generous sweeteners Ryanair has already thrown on the table.

This article first appeared on Personnel Today.