The Supreme Court has referred the case being pursued by the British Airline Pilots’ Association (BALPA) against British Airways on pilots’ holiday pay to the European Court of Justice. The decision was welcomed by the union.
The issue arose because the 2004 Civil Aviation Working Time Regulations which govern pilots’ holiday pay (rather than the 1998 Working Time Regulations) do not make clear how it should be calculated.
BA paid its pilots a basic salary plus a “flying time” supplement and an allowance for any time spent away from their base airport, as well as annual leave under their service agreements. This contractual holiday leave was paid at the level of basic pay, on the basis that if they weren’t flying and not away from their home base, they were not entitled to the additional allowances.
The pilots claimed that BA was in breach of regulation 4 of the Civil Aviation (Working Time) Regulations 2004 which came into force on 13 April 2004, entitling them to “paid annual leave of at least four weeks”. The regulation did not, however, stipulate how the pay was to be calculated. The pilots argued that their holiday pay for this statutory period should include the additional supplement and allowance.
And the tribunal agreed with the union, as did the Employment Appeal Tribunal. The Court of Appeal, however, disagreed. It said that the ordinary meaning of the pay element in “paid annual leave” within regulation 4 of the 2004 Regulations was not “pay measured in some way by reference to the pay that a pilot can expect to earn whilst working”.
There are thousands of similar claims brought by pilots in other airlines and cabin crew which will no doubt remained stayed following this reference.
The case (British Airways v Williams, reported in (weekly LELR 118) is being brought on behalf of the union by Thompsons.