Malone and others v British Airways plc [2010] EWHC 302 HC

breach of contract | incorporation of collective agreements | injunctions

The High Court has held that provisions regarding minimum crew complements, contained in collective agreements, were not legally incorporated into employees’ contracts of employment, and those employees could not rely on them. In any event an injunction sought by the employees, to restrain British Airways (BA) from crewing planes other than in accordance with that collective agreement, could not possibly be justified.

In 2009, BA determined that cost savings were needed to ensure financial viability, and after failing to reach agreement with Unite, the representative for cabin crew, made changes that November that included reducing cabin crew complements on aircraft. These changes caused resentment among cabin crew, and three of them duly sought redress in the High Court, both as individual claimants and as representatives of their cabin crew colleagues.

The three claimants alleged that collective agreements between BA and the relevant unions, which contained provisions regarding minimum cabin crew complements, had been incorporated into their (and their colleagues’) contracts of employment; and that by reducing complements below these levels, BA was therefore in breach of contract. The claimants sought an injunction to prevent BA from continuing to use lower levels of cabin crew than the levels provided for in the collective agreements.

The High Court held that the terms of the collective agreements regarding cabin crew complements had not been incorporated into the claimants’ contracts of employment, and the claimants could not legally enforce them. It found insufficient evidence of a mutual intention (from the parties to the collective agreements) to give the relevant provisions legal enforceability by individual employees, and that the provisions were not “apt” for incorporation in any event.

The High Court also held that, even if it was wrong about the breach of contract claim, the injunction sought by the claimants could not possibly be justified. Of particular importance to the court’s decision to deny the injunction was that BA’s unchallenged evidence identified a “quite exceptional burden faced by BA in terms of cost, planning and reorganisation in the event of a permanent injunction, sufficient indeed to jeopardise prospects of financial recovery”.

As regards the other contracts of employment for cabin crew, put forward by the claimants in their capacity as representatives, the High Court found nothing that would lead to incorporation of the collective agreements into them. It also held that, even if the collective agreements had been incorporated into those contracts, BA would – in respect of contracts of employment made after 1994 – have been able to rely on a clause that allowed it to make “reasonable changes” to any terms of employment.

Case transcript of Malone and others v British Airways plc (on the BAILII website)

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