The Court of Appeal recently determined that the provisions of a collective agreement between British Airways and its relevant trade unions which stipulated a minimum complement of cabin crew on board flights was intended to be “binding in honour only” and was not incorporated into individuals’ contracts of employment. Accordingly, employees could not claim for breach of contract when this complement was not met.

In the case of Malone & Others v British Airways Plc over 5000 employees of British Airways lodged a claim for breach of contract on the basis that British Airways had unilaterally reduced the complement of cabin crew on its flights as part of a cost cutting exercise. The Claimants alleged that this was in breach of the terms of the relevant collective agreement which set out the operational arrangements for cabin crew staff, including the number of staff to be present on each flight. The Claimants further alleged that the collective agreement formed part of their individual contracts of employment and sought as a remedy a declaration of their contractual terms.

The initial High Court judgment held that the terms of the collective agreements were not incorporated into the Claimants’ contracts of employment. Sir Christopher Holland held that there was insufficient evidence to show that the terms were intended to have legal enforceability at the behest of any individual crew member. Furthermore, he found that the provisions in question were not apt for incorporation into individual contracts. The Claimants appealed against this decision to the Court of Appeal.

The Court of Appeal found that there were strong factors both in favour of and against incorporation of the terms of the collective agreement. The Court of Appeal noted that the issue of crew complements impacted on employees’ working conditions, particularly their workload and pay, as when a British Airways aircraft flies with a smaller complement of staff than specified in the relevant collective agreement, the crew members are paid a cash supplement. Lord Justice Ward commented that this pointed towards appropriateness for incorporation.

However, on balance, the Court was convinced by a practical argument submitted by British Airways, namely that, if the terms regarding staff complements were individually enforceable, crew members could properly refuse to work on a flight with a reduced staff complement, even if the complement satisfied legal requirements, which could potentially lead to flights being delayed and/or cancelled and would result in “anarchy.” The Court of Appeal held that this could not have been the intention of the parties when entering into the collective agreement and therefore ruled that, whilst the terms represented an undertaking by British Airways towards its cabin crew employees collectively, it was intended to be binding in honour only and was not intended to afford contractual rights to individuals. The appeal was therefore dismissed.