Quality, not quantity

Lucy and ors v British Airways plc

Tribunals can hear claims for unlawful deductions of wages (as long as the sums can be quantified), as well as claims for breach of contract if the workers no longer work for that employer. In Lucy and ors v British Airways plc (IDS 873), the Employment Appeal Tribunal (EAT) said that although the sums claimed were quantifiable, the flying allowances did not constitute “wages”.

Basic facts

The 78 claimants were employed by BA as cabin crew based at Manchester airport. In addition to their basic salary they were entitled to receive "flying allowances" covering meals, overnight stays and long days (among other things) when they carried out flying duties.

On 29 October 2006 BA closed their Manchester Airport base. The claimants were not made redundant, but as they were no longer rostered to fly, they no longer received the flying allowances.

They brought a claim for unlawful deduction of wages before a tribunal, arguing that this was contrary to section 13 of the 1996 Employment Rights Act (ERA). BA said however that, as the claims could not be quantified, they had to be brought as breach of contract claims in the county court as the claimants were all still employed by BA.

Tribunal decision

And the tribunal agreed. Relying on the decision of the Court of Appeal in Coors Brewers Ltd v Adcock and ors, it said that the claims could not be quantified and were, in reality, “claims for damages by way of compensation for the loss of the chance to earn flying allowances”.

It dismissed the claimants’ arguments that the money they were owed could be worked out using section 224 of the ERA (which provides rules for calculating a week’s pay for certain statutory purposes).

As tribunals cannot hear breach of contract claims when the workers are still employed by their employer, the tribunal said that the only option open to the crew was to bring a claim for breach of contract in the county court.

EAT decision

The EAT, however, disagreed. It said that although the claims might be difficult to quantify (because of the different criteria applying to the different allowances), it was not impossible to work it out. And it pointed out that if the tribunal had decided that BA was not entitled to withhold the allowances, it would have had to find a way of calculating what the claimants were owed.

That did not mean, however, that their claims for unpaid “wages” could succeed. This was because there was “an obvious and fundamental difference between basic wages or salary payable periodically to an employee who works or is ready, willing and able to work if no work is provided e.g. he is on "gardening leave" and remuneration which is only earned if specific tasks are carried out, such as commission from sales, allowances for flying or allowances for overnight stays (this is by no means an exhaustive list). The latter form of remuneration, in my judgment, can only become payable to the employees if the applicable task is carried out”

As the claimants did not carry out any flying duties once the Manchester base closed, they did not, therefore, earn the allowances. The EAT concluded that these were not claims for wages, but claims for “damages for loss of the opportunity to earn the allowances claimed or of the chance of earning them”.

As tribunals cannot hear claims for breach of contract when the workers are still working for their employer, the EAT said the claim had to be pursued in the county court.