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Supreme Court fails to decide on British Airways pilots' pay

24 March 2010

The Supreme Court has washed its hands of the thorny issue of airline workers’ pay by referring the question of whether pilots should be able to claim a ‘flying time’ supplement during their holidays to the European Court of Justice.

The Court of Appeal unanimously rejected the claims of 2,750 British Airways pilots last year. Delivering the leading judgment, Lord Justice Rimer described their arguments as “wrong, and, with respect, obviously so”.

Rimer LJ warned that the outcome of the case “may have an impact” on 10,600 similar claims brought by cabin crew against British Airways and hundreds more against Virgin and EasyJet (see Solicitors Journal 153/15, 21 April 2009).

As well as their flying time supplement, the BA pilots claimed a further allowance for time spent away from their base airport when they were on holiday.

Giving the judgment of the Supreme Court in British Airways v Williams and others [2010] UKSC 16, Lord Mance said: “The Supreme Court would agree that the present arrangements with pilots employed by British Airways could not be regarded as posing any such risk to their health or safety.

“There is no suggestion that they do or could prevent or deter pilots or crew members from taking annual leave (even to the limited extent that they are free not to do so).

“On the contrary, the Employment Tribunal referred to a consensus that British Airways pilots not based at Gatwick do in practice take the extra two weeks’ voluntary leave to which they are entitled.”

However, Lord Mance said the pilots argued that ECJ case law contained statements “establishing that ‘paid annual leave’ must now be regarded as having achieved a closely defined autonomous European meaning: any payment in respect of annual leave must correspond with the employees’ ‘normal’ remuneration in order to ensure that the worker is, when on leave, in a position which is ‘comparable’ to that when he or she is at work”.

Lord Mance said the pilots relied on two ECJ rulings, where, in both cases, “the context was quite different from the present”. One of these, Stringer and others v HMRC (C-520/06), involved the holiday entitlement of workers on long-term sick leave.

The Supreme Court referred to the ECJ the questions of to what extent member states could determine holiday pay and whether holiday pay should correspond “precisely” to normal pay.

Lady Hale and Lords Walker, Brown and Clarke contributed to the judgment.

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