Malone and ors v British Airways plc
Unless expressly incorporated, it is not always easy to know if a collective agreement has contractual status. In Malone and ors v British Airways plc, the Court of Appeal said that when deciding whether a term is incorporated, courts have to look at whether it impacted on working conditions and what the parties had intended the provision to mean.
After BA unilaterally reduced the number of crew on its aircraft below the levels agreed through collective bargaining with Unite the union, about 5000 cabin crew staff brought breach of contract claims.
They argued that the collective agreement negotiated with Unite had been incorporated into their individual contracts of employment and was therefore enforceable on an individual basis.
They sought declarations as to their contractual terms, injunctions requiring BA to comply with the crew complement levels in operation before the unilateral reduction, damages and costs.
High Court decision
Applying the principle that a collective agreement is non-binding unless it expressly states otherwise, the High Court said that in this case the cabin crew agreement was not incorporated into the contracts of individual members of staff.
The judge said he could not find sufficient “mutual intention” to give the agreement legal enforceability by an individual cabin crew member. Nor, he said, were the provisions in it “apt” for incorporation.
It was an agreement to cover the planning and deployment of 11,500 employees and “not the stuff of 11,500 individual contracts”. The provisions were therefore “aspirational” rather than “contractual”.
Court of Appeal decision
The Court of Appeal noted that it was not easy to decide the “aptness” of the incorporation of the agreement as the “various relevant considerations point in both directions”.
It accepted that a reduction in crew numbers had an impact on the workload of individual crew members and that if a crew had to fly with one member short, they were paid a cash supplement. These were not, therefore, “aspirational” provisions but rather provisions that gave a definite undertaking. But was it an undertaking to an individual employee?
The Court decided it was not. It pointed to the “disastrous consequences” of a finding that it could be enforced by individual employees, with the result that one crew member could refuse to fly and thereby delay or even prevent the departure of a flight if crew numbers were below the agreed complement.
This was “so serious as to be unthinkable”, the Court said, and it was driven “to the conclusion that the parties could not have intended such a consequence”.
The term was not therefore meant to be individually enforceable, but was intended as an undertaking towards its cabin crew employees collectively, partly to protect jobs and partly to protect the crews, collectively, against excessive demands in terms of work and effort. In effect, it was a term intended to be “binding only in honour”.
The Court of Appeal has put the cart before the horse. It was swayed by what it saw as the “disastrous consequences” of the terms of the collective agreement being capable of individual enforcement. With respect, it is not the for the Court of Appeal to impose its own views as to the desirability of the consequences, and therefore to render incapable of enforcement terms which would otherwise be enforceable. It is also difficult to understand the Court of Appeal’s distinction between an “undertaking” and a contractual term.