In the recent case of Malone and Others v British Airways Plc the High Court held that it was not apt for provisions relating to crewing levels contained within a collective agreement to be incorporated into individual contracts of employment.

The Claimants in this case were three members of British Airways cabin crew who brought test claims on behalf of several thousand employees. The Claimants’ contracts of employment included a clause stating that their employment would be governed by the terms of collective agreements and that these agreements were deemed incorporated in to their contracts of employment. Relying on this term, the Claimants claimed that a collective agreement between BA and the Unite union providing for minimum staffing levels was incorporated in to their contracts of employment.

As part of cost cutting measures, BA reduced the minimum staffing numbers below those set out in the relevant collective agreement. The Claimants claimed that, as the minimum staffing levels were incorporated in to their contract of employment, BA was in breach of those contracts. They therefore sought a declaration of their rights and an injunction to compel BA to reverse the cuts.

The High Court found that:

  • The new crewing levels exceeded Federal Aviation Authority minimum levels which were the legally enforceable crewing levels;
  • The collective agreement did not expressly provide for the relevant section of the collective agreement to be legally binding (whereas it did in other sections);
  • The contracts of employment did not expressly incorporate the relevant parts of the collective agreement;
  • As drafted, the minimum crewing levels could not have been sensibly set out in a contract of employment and as such they were not “apt” for incorporation.  

Ultimately, the Court found that there had been no intention to give crewing level agreements legal enforceability by individual crew members.

The Court said that if it was wrong to make the decision it had, a variation clause included in contracts issued after 1994 gave BA the express right to make reasonable changes to terms and conditions and, as the changes were reasonable, BA were in any event entitled to vary the contracts.

The Court went on to say that, even if they had found that the collective agreement was incorporated in to the Claimants’ contracts, an injunction compelling BA to reverse the changes would not have been an appropriate remedy.