Staffing Arrangements Not Incorporated Into Individual Contracts

In Malone and ors v British Airways Plc [2010] EWCA Civ 1225 the Court of Appeal rejects the contention that BA was in breach of contract in proposing to reduce staffing levels which had been previously agreed with the trade unions. This case is part of the much publicised and long running dispute between BA and its cabin crews, who are represented by Unite, over staffing issues. On 6 October 2009, BA unilaterally reduced the crew complements on its aircraft which had been agreed through collective bargaining between BA and Unite. It was accepted that the collective agreement was binding in honour only (as there was no express agreement to the contrary as provided for by s.179 of the Trade Union and Labour Relations (Consolidation) Act 1992). It was also accepted that the Claimants' employment particulars included a term which provided that her employment was to be governed by the agreements between BA and the employees' side of the National Joint Council. Further, the particulars stated that NJC agreements from time to time in force are deemed to be incorporated into the individual employment contract and individuals were specifically referred to that agreement for terms relating to hours of work, periods of notice, paid holiday entitlement, sickness benefits and "general maters". It was also accepted by Counsel that in principle terms relating to working conditions in that agreement were appropriate for incorporation into individual contracts and that minimum levels of staffing provided for by the Air Navigation Order 1989 would be so incorporated either expressly or impliedly as part of the employer's duty of care. The issue was whether staffing levels (known as crew complements) beyond that level formed part of the Claimants' working conditions and were thereby incorporated into their individual contracts. The Court of Appeal concluded that they were not but in so concluding it rejected the reasons given by the Trial Judge (Butterworth J). Referring to NCB v NUM [1986] IRLR 439 and Kaur v Rover Group Limited [2005] IRLR 40 the Court recognised that it had to distinguish between those terms "which are of their nature apt to become enforceable terms of an individual's contract of employment and terms which of their nature inapt to be enforceable terms" and that "terms of collective agreements fixing rates of pay, or hours of work, would obviously fall into the first category. Terms which deal with procedure to be followed by an employer...