Working Time Regulations - Court of Appeal rejects pilots’ claim for higher holiday pay

Written by Ian Congreave - Filed under: Working Time Regulations on April 20th, 2009

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On 3 April 2009, the Court of Appeal overturned the decisions by both an employment tribunal and the Employment Appeal Tribunal, ruling that there is no requirement for the holiday pay of aircraft pilots to be calculated according to the statutory “week’s pay” rules.

This decision, in the case British Airways Plc v Williams & Others, is highly significant in the civil aviation sector as the “others” referred to in the name of the case are 2,750 pilots employed by BA. The outcome of the case is also relevant to similar claims against BA by 10,600 cabin crew and, apparently, 700 claims against Virgin and 500 claims against EasyJet.

The Working Time Regulations 1998 (WTR) specifically exclude the application of their provisions to certain industries where separate “working time” regulations have been made, such as the Fishing Vessels (Working Time: Sea-fishermen) Regulations 2004, the Merchant Shipping (Working Time: Inland Waterways) Regulations 2003, and the Civil Aviation (Working Time) Regulations 2004, the regulations to which this case relates.

In respect of workers and industries to which the WTR does apply, the requirement is for statutory holiday pay to be paid at a rate that is not less than a “week’s pay”, as defined in sections 221 to 224 of the Employment Rights Act 1996. The “week’s pay” rules are intended to ensure that a worker is paid as much while on statutory holiday leave as is normally paid when at work. It is significant that, although the Sea-fishermen Regulations and the Inland Waterways Regulations, in their separate provisions for holiday leave, also require payments to be at least at the level of a “week’s pay”, such a provision is not made in the Civil Aviation Regulations. They are silent about the rate at which payment should be made for statutory holiday leave.

When the cases were first considered by the employment tribunal and later by the EAT, both tribunals acknowledged that the “week’s pay” rules do not apply in civil aviation but that the intention of the European Directive is that holiday pay should be broadly the same as pay while working and, in the absence of specific rules within the Civil Aviation Regulations, the “week’s pay” rules should be used.

The Court of Appeal did not agree, however, and ruled that, as there are no provisions in the Regulations defining the calculation of holiday pay for workers in Civil Aviation, BA has no statutory obligation to do any more than pay holiday pay as provided for in the pilots’ service agreements. The Court also declined to refer the issues to the European Court of Justice. However, the British Airline Pilots Association (BALPA) later announced that it is considering an appeal to the House of Lords.

Further information:
British Airways Plc v Williams & Others
Court of Appeal Allow BA Appeal

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Written by Ian Congreave -

Filed under: Working Time Regulations on April 20th, 2009