Malone & Ors v British Airways Plc [2010] EWCA Civ 1225

Case No A2/2010/0578Case No A2/2010/0578(Y)[2010] EWCA Civ 1225
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEENS BENCH DIVISION
SIR CHRISTOPHER HOLLAND
HQ09XO4816
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 03/11/2010
Before
LORD JUSTICE WARDLADY JUSTICE SMITHLORD JUSTICE JACKSON
Between
Malone & OrsAppellantsBritish Airways PlcRespondent
John Hendy QC & Oliver Segal (instructed by OH Parsons & Partners) for AppellantsBruce Carr QC & Andrew Burns (instructed by Baker & McKenzie LLP) for RespondentHearing Hearing dates : 11 & 12 October 2010
Judgment

Introduction

[1]This is an appeal from the order of Sir Christopher Holland, handed down on 19 February 2010, following the trial of an action for breach of contract brought by a group of cabin crew employees against their employer British Airways PLC (BA). In the action, there are over 5000 claimants, all cabin crew members working from London Heathrow (LHR). However, for the purposes of the trial, three lead claimants were selected, Miss Elizabeth Anne Malone, Mr Nigel Antony Stott and Mr Marcel Devereux.[2]The claimants’ allegation was that, on 6 October 2009, BA unilaterally reduced the crew complements on its aircraft below the levels which had been agreed through collective bargaining between the employer and the employees’ trade union, Unite. The claimants alleged that the collective agreement which stipulated the crew complement levels had been incorporated into their individual contracts of employment and was enforceable by them 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.[3]BA’s stance was that, even though some collective agreements negotiated between it and Unite were incorporated into the employees’ contracts of employment, the particular provisions relating to crew complements were not. These terms were not apt for inclusion in individual contracts and the parties to the collective agreements had never intended that crew complement provisions should be enforceable by individual employees.[4]On that main issue, which I will call the incorporation issue, Sir Christopher Holland accepted the submissions of BA and dismissed the claims. The claimants now appeal.[5]BA had also raised an alternative defence which applied only to some of the claimants. The employment contracts of about 60% of the claimants contain a clause which entitles BA to make reasonable changes to the terms. Although at the time of reducing the cabin crew complements, BA had not purported to rely on this contractual provision, it took the point in the litigation. It argued that, in the light of the company’s parlous financial position during 2008 and 2009, the reductions in crew complements were reasonable changes which could be made unilaterally. The claimants argued that, even if these clauses were valid (which they disputed) the changes in question could not be described as reasonable. The judge said that, if he were wrong on the incorporation issue, he would hold that BA could reduce crew complements in reliance on the reasonable changes clause. The claimants appeal on this issue also, as they do in respect of the judge’s indication that, if he had found in the claimants’ favour, he would still have refused to grant injunctions.

The factual background

[6]BA, which was incorporated as a public limited company in 1987 following its denationalisation (having been formed from British European Airways and the British Overseas Airways Corporation in 1974), operated three airline fleets in 2009. Its Worldwide Fleet and Eurofleet operate out of LHR. These fleets required the services of about 11,500 cabin crew employees in 2009. There is also the Gatwick Fleet, which flies long and short haul, and operates, as the name implies, from Gatwick Airport. This fleet has about 2000 cabin crew employees. BA also employs its International Cabin Crew (ICC) based at various overseas locations.[7]In 2009 about 96% of cabin crew employees were members of the trade union Unite. Historically, this group of employees was represented by the British Airways Stewards and Stewardesses Association (BASSA) which was a branch of the Transport and General Workers Union (TGWU). In 1989, some members broke away and formed a union called Cabin Crew 89. In due course this became a branch of the union Amicus. Much more recently, Amicus and the TGWU amalgamated to form Unite. However, the old division still exists and the former BASSA members and the former Cabin Crew 89 members form different branches of Unite. Both branches are separately represented at negotiations with BA.[8]The relationship between BA and the trade union branches representing the cabin crews is, in my experience at any rate, rather unusual. Issues which might usually be regarded as falling within the sphere of management are the subject of bilateral negotiation resulting in collective agreements. There may be historical reasons for this; if so they do not matter. The present position is that there are several collective agreements between BA and the relevant trade unions which appear to cover almost every aspect of the cabin crew working terms and conditions. None of these collective agreements is enforceable as between BA and the trade union in that in none of them is there any express intention recorded that the agreement should be enforceable, as is required by section 179 of the Trade Union and Labour Relations (Consolidation) Act 1992.[9]The claimants in this action have commenced their employment at different times over the past 30 years or so and the written particulars of the terms of employment with which they were issued vary to some degree. However, it is common ground that all the written particulars with which we are concerned expressly state that the collective agreements are incorporated into the contract. The particulars of Miss Malone, the first lead claimant, are typical and, so far as the issue of incorporation is concerned, nothing turns on the differences between this document and the particulars of any other claimant. Condition B1 of Miss Malone’s particulars state:
“Your employment …will be governed by…the Agreements between (BA) and the Employees’ side of the NJCA (National Joint Council) so far as the same are applicable to your particular appointment. The NJC Agreements from time to time in force are deemed incorporated into this contract and you are referred to these Agreements for details of your hours of work, periods of notice, paid holiday entitlements, sickness benefits and general matters.”
[10]Although there were several collective agreements, we are concerned with only two, the Worldwide Scheduling Agreement (WSA) dated November 2005 and Eurofleet Cabin Crew Manual (ECCM) dated February 2004. These agreements deal with the operational arrangements for cabin crew members and the duties, obligations, rights and expectations of BA and the crews. The WSA deals with such matters as hours of work, maximum trip lengths, rostering, reporting times, procedures for cancelled or delayed services, crew complements, working positions on board, duty periods, rest periods including the arrangements for in-flight rest and refreshment breaks, minimum turnaround times and standby arrangements.[11]The WSA and ECCM do not include pay or pension arrangements; nor do they deal with sickness absence or matters such as grievance and disciplinary procedures. Those matters are covered by separate collective agreements.[12]It appears to be common ground that, in the past, no changes have been made to the WSA or the ECCM without such changes being bilaterally agreed. Whether such agreement was a legal necessity is contentious but that is how the two sides operated in the past. There had been an occasion in the past when BA wished to reduce the crew complements and the union’s agreement was given very reluctantly but BA had never previously imposed a crew complement change unilaterally. The agreements in operation at LHR were said to be ‘negotiable’ rather than ‘consultative’. The position was different at Gatwick where the comparable arrangements were contained in so-called agreements which were said to be only ‘consultative’ rather than ‘negotiable’. Whether those documents could properly be described as ‘agreements’ is a moot point.[13]As I have said, the WSA and ECCM contain crew complements for each type of aircraft operated. These crew complements are distinct from the minimum manning levels required under the Air Navigation Order 1989, which by paragraph 19 in Part IV provides that an aircraft shall not fly unless it carries a flight crew of the number and description required by the law of the country in which it was registered. So, for example, for a Boeing 747, the minimum number of cabin crew, as set by the Federal Aviation Authority in the USA is 12. It seems clear that the rationale of these minimum complements is to ensure the safety of the operation of the aircraft and its passengers and crew. However, BA has always recognised that, because it provides high standards of service to its passengers, it will need a greater crew complement than the legal minimum.[14]There are three grades of cabin crew. These are, in descending order, cabin service director (CSD), purser and main crew member. CSDs normally carried out only supervisory duties; they did not take part in actually serving the passengers, although I understand that they might do so if an unforeseen event made the other staff shorthanded and I also understand that such work was envisaged in their job descriptions. Each other member of the crew was assigned a service position. Service positions were chosen by the crew in order of seniority. BA was entitled to lay down the duties required of the crew member assigned to each position.[15]Section 7 of the WSA is entitled “Crew Complements”. Section 7.1 is headed “Minimum Planned Crew Complements” and provides:
“All services will be planned to the current industrially agreed complements for each aircraft type. Future crew complements will continue to take into account in-flight product and cabin crew rest requirements.”
[16]There follows a table setting out the complements for each type of aircraft in the Worldwide Fleet. The numbers depend upon whether or not the aircraft is flying long range and also upon the configuration within the aircraft. By configuration I mean how the aircraft is divided. BA can operate with up to four classes of service: First, Club, World Traveller Plus and World Traveller. Each class has its own different service requirements and these impact on the amount of work to be done by cabin crew which in turn impacts on how many crew members are needed. By way of example, as specified in the 2005 WSA, a long range Boeing 747 configured for three classes needs a complement of 15; a 777 configured for two classes requires only 12. For non-long range, a 747 configured for three classes requires a cabin crew of 15 whereas a 767 configured for two classes requires only 8. These complements were agreed in bilateral negotiations following what were described as ‘trials’ which, as I understand it, were observations of a work study nature. We were told that in the past these negotiations were part of a pay and productivity deal.[17]Section 7.2 is headed:
“Additional Crew Member Routes” and provides that an additional main crew member will be carried on routes from LHR to Miami, Los Angeles, Delhi, Bombay, Dhaka and Singapore. Further, it is provided that the routes on which additional crew members will be carried may be changed by agreement between the company and the trades unions. It concludes: “The company and the Trade Unions will meet 3 months prior to the start of each operational season to identify and agree the routes where the additional crew member will apply. This will be ratified at Worldwide Steering.”
[18]Section 7.3 is headed “ICC Complements and Working Positions”. This subsection contains no text, only a table of the (maximum) numbers of ICC staff who may be deployed on each type of flight. The table also stipulates which working position each such ICC worker will occupy.[19]Section 7.4 is headed “Downroute Shortage” and provides as follows:
“Occasionally, unplanned situations will occur downroute when it is not possible to provide the correct crewing level. If this happens, in-flight service may be adjusted by the in-charge crew member to cope with the reduced crew complement. The level of service you are able to provide will depend on passenger numbers, time available and rest requirements. A guide to product delivery standards is given later in this manual. Note: Prior to a downroute service having to go crew short, British Airways must make every effort to find another crew member. Options include: a) Where an ICC base exists, utilising ICC crew from standby or availability. b) Disrupting the itinerary of another crew member following minimum rest. c) Positioning out of a replacement crew member.”
I should explain that ‘positioning’ means moving a crew member from one place to another for the purpose of joining a flight.

Options include:

[20]Similar although not identical provisions relating to Eurofleet were to be found in section 21 of the ECCM. This section, however, did not set out the agreed crew complements within the agreement itself but referred to Answers, a BA human resources function. These provided similar tables or matrices of crew complements for various aircraft and conditions. The parties did not suggest that, for the purposes of this action, there was any material difference between the effect of section 7.1 of the WSA and section 21 of the ECCM.[21]As the judge noted, the cost of the manning levels as agreed and as set out in section 7.1 of the WSA and Section 21 of the ECCM was higher than the comparable costs incurred by other airlines, including those of the BA Gatwick Fleet. However, as the judge recognised, the service standards which BA was proud to offer and which its cabin crew were proud to provide were labour intensive and therefore expensive. The service standards are referred to by BA and its employees as ‘the product’. It was entirely a matter for BA to decide what the product levels should be. That was not a negotiable matter. Of course, if BA decided to change the product, either to increase or decrease the standard, that might lead to the need for renegotiation of crew complements.[22]There is one other section of the WSA which I must describe because it plays an important part in the claimants’ submissions on this appeal. This Section 20, which is headed ‘Disruption Agreement’. The preamble explains:
“When significant events outside the control of British Airways cause severe disruption to the operation, the following changes to the scheduling agreement may, after agreement with the Trades Union has been reached, be enacted for an agreed fixed period of time, to maintain the integrity of the operation and facilitate the return of the operation to normal as soon as possible.”
There then follow some arrangements for the introduction and operation of the agreement and examples of the kind of circumstances in which it will be utilised. Sections 20.1 to 20.4 cover such issues as 24-hour availability, rest day working, work transfer and operating zone closures from base. These are the practical details of what may and may not be expected of cabin crew staff while the disruption agreement is in force. Section 20.5 deals with the arrangements which will apply if it becomes necessary, as a last resort, to operate a flight ‘one down’ that is with one crew member short of the normal crew complement. This last resort can only be adopted where otherwise the flight would have to be cancelled. We were told that, if a crew is required to operate ‘one down’, the members will receive financial compensation.[23]The disruption agreement is relied on by the claimants as they contend that the notion that crew complements do not give rise to individually enforceable rights is inconsistent with the provision that a crew member will be paid financial compensation if he or she is required to work ‘one down’ during a period of disruption.

The chronology of events leading to the dispute

[24]In its financial year 2008/9 BA suffered a financial set back. Whereas in 2007/8 it had made an operating profit of £878 million (from an annual turnover of something of the order of £9 billion), in 2008/9 it suffered an operating loss of £220 million. This was said to be due partly to increased fuel costs but also to the drop in passenger numbers (particularly in First and Club classes) consequent on the economic downturn. At the beginning of the financial year 2009/10, BA announced that it must make cost savings of £220 million in the year (to which cabin crew costs were to contribute £82 million) but by May or June 2009, the situation had deteriorated further and BA decided that it must find savings from cabin crew costs alone of £140 million.[25]Negotiations had begun in February 2009 at a time when the reduction target was only £82 million. BA tabled proposals some of which would entail a reduction in cabin crew complements. Many meetings took place but no agreement had been reached by May when the target figure for cabin crew cost reduction was increased. On 1st June, BA began the statutory procedures necessary to effect their proposal that cabin crew numbers should be reduced by redundancy from about 13,500 to about 11,500. I mention, in parenthesis, that such a reduction has taken place without the need for compulsory redundancies. Numbers have been reduced by voluntary redundancy and by full time workers voluntarily moving to part time work.[26]During June 2009, there was a serious disagreement between the two union branches with the result that it was no longer possible to conduct meetings at which both branches were present. In late June, BA put forward a proposal which included specific reductions in crew complement. Two days later, Unite put forward a Pay and Productivity proposal which it claimed would save £173 million per annum. Although this proposal included some reduction in crew complements, these were not as significant as the BA proposal. BA then analysed the costings within the union’s proposal and found that it would result in savings of only £53 million. It was therefore unacceptable. In July and September, there were several attempts at further negotiation, some involving ACAS. A particular difficulty was that the two branches of the union were still not prepared to work together.[27]By early October, no agreement had been reached and BA decided to take unilateral action. By email dated 6 October, Mr Bill Francis, the head of the department responsible for cabin crew management wrote to all cabin crew. After explaining the need to cut costs by £140 million and reporting that no agreement had been reached with the unions after 9 months’ negotiation, Mr Francis informed the staff of BA’s cost-cutting proposals. The target was to be achieved by reducing crew complements with effect from 16 November. There was to be no reduction in service standards. The main provision was that one purser position was to be removed from all LHR Worldwide flights (747,777,767). Second, all Worldwide CSDs were to take part in customer service routines, so that the number of crew actually serving would not be reduced. Third, the arrangements by which additional main crew members were allocated on certain flights were to be cancelled. For Eurofleet, the changes were to take effect from 1 December. Crew complements were to be brought into line with those in force at Gatwick. Also, there would be only one person from the two upper grades (either a CSD or purser) on any flight.[28]The staff reaction to these changes was reflected in strike action which has not yet been settled, although the focus of the remaining areas of disagreement appears, as reported, now to be based on the loss of certain privileges and BA’s decision to take disciplinary action against some staff in relation to their conduct during the strikes.[29]It appears that, apart from taking strike action, staff have obeyed the new rules. There has been no individual refusal to board and serve on aircraft crewed at the new reduced levels. There has, however, been considerable dissatisfaction both as to the effect of the new arrangements on working conditions and also with the manner in which the changes were effected. The judge recorded that many staff were resentful of the decision to impose the changes rather than to negotiate them. As to this, the judge appears to have been of the view that staff had not realised how much difficulty had been caused by the refusal of the two union branches to work together. Also, and more importantly for the purpose of this appeal, the judge accepted that the crew complement reductions had resulted in a requirement for harder work and increased stress. This varied from flight to flight depending on the number of passengers and their distribution between classes. In particular, there could be difficulty if one or more members of the crew had to pay special attention to a passenger who was unwell or uncooperative; this would put additional strain on the rest of the crew. The judge was later to accept that the crews were proud of providing the high standards of service for which BA was renowned and their attempts to maintain those high standards with a reduced crew complement ‘engendered exhaustion, stress and frustration’.

The judgment on the incorporation issue

[30]A claim form was issued on 30 October 2009 and an application made for an interim injunction. This was refused by Butterfield J but he ordered a speedy trial which took place over 5 days before Sir Christopher Holland in February 2010.[31]In his judgment, the judge set out the facts in rather more detail than I have provided. He quoted extensively from the individual particulars of terms of employment put before him. He then turned to consider the principles he should apply in deciding whether the crew complement provisions contained in section 7 of WSA and section 21 of ECCM were enforceable by individual crew members. He directed himself by reference to two cases relied on by both sides. In Alexanderv Standard Telephones [1991] IRLR 286 at 292, a case about whether provisions in a collective agreement relating to selection procedures for redundancy were incorporated into individual contracts of employment, Hobhouse J, as he then was, said:
“The principles to be applied can therefore be summarised. The relevant contract is that between the individual employee and his employer. It is the contractual intention of those two parties which must be ascertained. In so far as that intention is to be found in a written document, that document must be construed on ordinary contractual principles. In so far as there is no such document or that document is not complete or conclusive, their contractual intention has to be ascertained by inference from the other available material including collective agreements. The fact that another document is not itself contractual does not prevent it from being incorporated into the contract if that intention is shown as between the employer and the individual employee. Where a document is expressly incorporated by general words it is still necessary to consider in conjunction with the words of incorporation, whether any particular part of that document is apt to be a term of the contract; if it is inapt, the correct construction of the contract may be that it is not a term of the contract. Where it is not a case of express incorporation, but a matter of inferring the contractual intent, the character of the document and the relevant part of it and whether it is apt to from part of the individual contract is central to the decision whether or nor the inference should be drawn.”
[32]The judge referred also to a short and uncontroversial passage from the judgment of Sir Thomas Bingham MR, as he then was, in Adams and Others v British Airways PLC [1996] IRLR 574 to the effect that a collective agreement should be construed in its factual setting. Further the judge cited a passage from Keeley v Fosroc International Ltd [2006] IRLR 961 where the issue was the enforceability of provisions relating to enhanced redundancy payments contained in a Staff Handbook, which had been incorporated into the employment contract. At paragraph 34, Auld LJ said:
“Highly relevant in any consideration, contextual or otherwise of an ‘incorporated’ provision in an employment contract is the importance of the provision to the overall bargain, here, the employee’s remuneration package – what he undertook to work for. A provision of that sort, even if couched in terms of information or explanation, or expressed in discretionary terms, may still be apt for construction as a term of his contract… ”
Later, in paragraph 36 he said:
“As Dyson LJ noted in the course of (counsel’s) submissions, a good way of testing …the judge’s reasoning on construction, is to ask whether, …if the redundancy policy had been set out in identical terms in Mr Keeley’s statement of employment terms, it could seriously have been argued, as a matter of construction, that it was not apt for a contractual term and, on that account, not part of the contract.”
[33]The judge summarised the parties’ submissions. The claimants’ case was that provisions relating to crew complements were apt for incorporation because they bear upon workload and productivity, in turn impacting upon pay and matters germane to the individual’s contract of employment. BA’s contention was that the crew complements were inapt for incorporation because there was nothing in the contracts of employment which invited their incorporation; nor was there anything to suggest objectively an intention to create an enforceable term. The alleged entitlement to an injunction was obviously unsustainable and only served to underline how inapt incorporation would be. The judge added (straying as it seems to me into dangerous territory) that the ‘emphatic evidence’ of Mr Alun Howells, a former member of BA’s negotiating team, was that he never considered that BA had entered into any potentially legally binding agreement with respect to crew complements. BA attempted to negotiate crew complements in the interests of good industrial relations, not because it was legally obliged to do so.[34]In paragraph 29, the judge listed six factors which he had taken into account in reaching his conclusion that crew complements were not apt for inclusion in the claimants’ individual contracts of employment.

(c) I quote the judge’s exact words:

“Miss Malone’s contract does not really point to section 7 of the WSA as being ‘applicable to your particular appointment’. If covered, such must come under the ‘catch-all’ head, ‘general matters’, which hardly seems convincing.”
This is a reference to Condition B of Miss Malone’s particulars which I quoted at paragraph 9 above. (d) In seeking to apply the test suggested by Auld LJ in Fosroc, the judge said that section 7 and the Disruption Agreement could not have been sensibly set out in Miss Malone’s contract. He did not ask himself the question envisaged by Auld LJ, namely whether, if those terms had been expressly set out in the contract (or in the written particulars), it could seriously have been contended that they were not apt to be contractual terms. (e) The judge observed that, although there was a long-established common law obligation on an employer to maintain a safe system of work (which might well include the need to provide sufficient assistance from other employees so as to avoid any risk of injury), “the notion of an obligation based on a complement essentially devised in excess of the minimum so as to deliver an enhanced produce is novel”.

(f) The judge said:

“Finally a minor point: is all services will be planned (see section 7) aspirational rather than contractual?”

The judge then recapitulated and summarised his reasons as follows in paragraph 30:

“Taken overall, first, I am not satisfied that there is sufficient objective evidence of mutual intention to give section 7 and the satellite provisions legal enforceability at the behest of any individual crew member. There was the opportunity to align the agreement provisions with that which was “legal” – it was not taken. Second, as in any event I do not regard section 7 and its satellites provisions as “apt” for incorporation into Miss Malone’s contract. What I am reading is what it is: a negotiated fleet collective agreement apt to cover planning for and deployment of 11,500 employees: it is not the stuff of 11,500 individual contracts. It is thus my judgment that there was no material incorporation into Miss Malone’s contract and hence there was no breach post 16 November 2009”
.

The appeal on the incorporation issue

[36]Mr John Hendy QC for the claimants/appellants submitted that the judge’s reasoning did not stand up to scrutiny. The six factors which the judge had mentioned in paragraph 29 of the judgment did not amount to good reasons for the conclusion which followed. In particular, at (a), the lack of an express provision of incorporation of section 7 of the WSA was of very limited relevance, if any. At (b) the fact that minimum complements were laid down by the general law was irrelevant to the question of the status of Section 7(1) as a contractual provision. The point at (c) carried no weight at all; there was no reason why the term ‘general matters’ should not include scheduling arrangements and crew complements. As for (d), the judge had misunderstood the test suggested by Auld LJ in Fosroc. The point at (e) was irrelevant; the fact that a contention is novel does not mean it is wrong and the judge does not say why it is wrong. At (f), the judge’s rhetorical question should be answered in the negative. The words ‘all services will be planned’ were not aspirational; they provided a positive undertaking. As for the judge’s reasoning in paragraph 30, Mr Hendy submitted that this amounted to little more than a statement of the conclusion that section 7 was not apt for incorporation into the individual contract of employment.[37]I will deal with this submission first because, although in its skeleton argument, the respondent did seek to support the reasoning of the judge as well as his conclusion, in oral argument Mr Bruce Carr QC concentrated on his submission that the judge had reached the right conclusion. With great respect to the judge, I do think that Mr Hendy’s criticisms have force and I propose to approach this appeal on the basis that this Court must apply its own mind to the question whether section 7.1 of the WSA was apt for incorporation into the individual contracts of employment.[38]At the heart of Mr Hendy’s submission was the contention that the touchstone for incorporation was whether the provision in question impacted upon the working conditions of the cabin crews. If it did, it was likely to be apt for incorporation. If it did not so impact, for example because it was inherently vague or merely an expression of policy or aspiration or because it plainly dealt with such collective matters as conciliation arrangements, then it would not be apt for incorporation. This delineation was based largely on the words of Scott J, as he then was, in National Coal Board v National Union of Mineworkers [1986] ICR 736, [1986] IRLR 439 and those of Keene LJ in Kaur v Rover Group Limited [2005] IRLR 40. In the National Coal Board case starting at page 772C to 773F, Scott J set out and then accepted the submissions of Mr Conrad Dehn QC for the employer in the following way:
“Mr Dehn ….. seeks, however, to draw a distinction between the terms of a collective agreement 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 by individuals. Terms of collective agreements fixing rates of pay, or hours of work, would obviously fall into the first category. Terms which deal with the procedure to be followed by an employer before dismissing an employee also would fall into the first category. But conciliation agreements setting up machinery designed to resolve by discussions between employers’ representatives and union representatives or by arbitral proceedings, questions arising within the industry, fall submitted Mr Dehn, firmly in the second category.”
Then at page 773C, Scott J accepted the validity of Mr Dehn’s distinction and held that the conciliation agreement under consideration in that case was not apt for incorporation into the individual miners’ contracts. On the other hand, national agreements which contain substantive provisions regarding wages or conditions of service would be.[39]In Kaur, at paragraph 10, Keene LJ referred to the judgment of Scott J above and then, at paragraph 32, held that, read in context, the provisions of the collectively agreed document under consideration (which stated that there would be no compulsory redundancies) were intended to express an objective or aspiration and were not intended to amount to a binding promise.[40]Mr Carr did not dissent from those principles although he submitted that there were other important considerations besides those mentioned by Mr Hendy. In particular, he submitted that it was important to examine whether a provision was in truth a collective matter rather than a personal one. But most important of all, the test for the court was what the parties must objectively be considered to have intended the provision to mean. That had to be decided on the basis of the words used, set in context and against the factual matrix. In addition, the meaning given to a provision must make business sense. Mr Hendy did not dissent from those principles. It seems to me that there was no disagreement as to the legal approach, only as to the result of its application.[41]In order to demonstrate the context of the disputed provision in section 7 of the WSA, Mr Hendy took the court to its various provisions, discussing the extent to which each impacted upon the working conditions of the cabin crew staff and, on the other hand, the extent to which each related to a question of policy or declared an objective which was purely aspirational. Although, initially, his submission was that all the provisions of the WSA affected working conditions and were therefore apt for incorporation, he began to accept, as he took us through the document, that some provisions were plainly either expressions of policy or aspiration or else were plainly intended to apply only collectively. By the time he had reached the end of the document, his submission was that, with a few readily identifiable exceptions, the provisions of the WSA impacted upon the employees’ individual rights and obligations and were therefore apt for incorporation.[42]As I understand Mr Carr’s submissions, he did not dispute that some of the provisions within the WSA were apt for incorporation because they plainly did impact upon the working conditions of the employees and plainly created binding obligations on the parties. The thrust of his submission was that section 7 was a collective provision rather than an individual one.[43]I propose to examine some of the provisions within the WSA so as to set consideration of section 7.1 into context.[44]Section 2, which deals with ‘General Planning Limits’ limits the maximum number of hours an employee can be required to work in any calendar month and in any six calendar months taken together. It also covers the maximum trip lengths which can be imposed on any employee. It seems to me that those provisions are enforceable by the individual employee, principally by entitling him or her to refuse to attend for duty if rostered to work longer than provided for.[45]Section 3 deals with rosters and includes arrangements for making contact while off duty. This section contains some provisions which are obviously not enforceable: for example section3.1 records that “Every effort will be made to publish your roster 28 days in advance.” However, it should be noted that the wording is directed to the individual employee. Section3.2 comprises various rules which BA will comply with “to help you keep you on your planned roster”. It is hard to imagine circumstances in which an employee might ‘enforce’ these rules directly although it is possible that, if an employee refused to turn up to work an altered roster and was disciplined, the employee would be able to rely on a breach of these rules in his or her defence. To that extent it seems that section 3.2 can be described as enforceable. Section3.3 deals with roster stability after sickness absence and, in the main, imposes requirements on employees, breach of which might well amount to misconduct. But that section also contains some definite promises by BA as to how it will treat ‘you’ the employee and, in addition, some aspirational provisions, prefaced by the words “Every effort will be made…. .” Section3.4 is headed ‘Contactability’ and contains a mixture of provisions including promises made by BA as to what it will do and not do, explanation of how arrangements will work and advice as to how to maintain contact when away from base. Most of these are clearly not enforceable but one is; one item records that if ‘you’ have a permanent telephone contact you may claim an allowance for it. In short, section 3 contains some enforceable and some non-enforceable provisions.[46]Section 4 deals with reporting and debriefing times. Again there is a mixture of provisions, some of which impose definite obligations on employees which, if flouted could, as it seems to me, give rise to disciplinary proceedings. Others are explanatory of what the arrangements will be in the event of certain circumstances arising and are plainly not intended to be enforceable.[47]Section 5 deals with Reporting Late. This section appears to me to be mainly concerned with how the system is expected to operate but it also provides for some loss of privileges in the event that an employee is late for duty without a good excuse. There is no reference, however, to disciplinary action. Whether these provisions are individually enforceable seems to me difficult and uncertain.[48]Section 6 sets out what will happen to the crew member in the event that a flight is cancelled or delayed. Some of these provisions relate to the flexibility which BA can require from its employees and others stipulate the limits of that required flexibility to be observed by BA. It seems to me that these provisions do clearly affect the individual employee’s conditions of work but whether they are intended to be enforceable and if so how is a much more difficult question.[49]Section 8 relates to Working Positions on Board and provides the rules of seniority by which working positions are determined. These rules seem to me to give the person in authority on the aircraft the right to order a member of the crew to fill a certain position but I do not think that these could be enforced by the crew member, other than by a refusal to work in that position, which might be followed by disciplinary action, in which the rules as to seniority might amount to a defence.[50]Section 9 provides for management the right to require a crew member to operate at either a lower or higher grade than his or her actual grade. However, working at a higher grade carries the pay of the higher grade and may carry entitlement to the better conditions attached to that grade. I think the financial provision and that relating to conditions are clearly intended to be individually enforceable.[51]I shall not burden this judgment with consideration of each and every provision of the WSA. I think that the above selection is typical and provides a sufficient background to the context of section 7.

Discussion

[52]I have not found it easy to decide the question of the aptness of the incorporation of the crew complements as set out in section 7.1 of the WSA. It seems to me that the various relevant considerations point in both directions, for and against incorporation.[53]As I have already observed, the WSA and ECCM contain a great variety of provisions, some of which are clearly intended to be individually enforceable and some of which are clearly intended to be unenforceable. There are also provisions which I do not find to be clear either way. Even within the same section, there are enforceable and unenforceable provisions. It follows that in deciding whether the crew complement provisions in section 7.1 are or are not intended to be individually enforceable, the fact that other parts of the section, such as section 7.3, are clearly unenforceable is not determinative either way. One has to look at the specific provision in section 7.1.[54]I take first Mr Hendy’s submission that the section 7.1 crew complements impact upon the appellants’ working conditions, particularly workload, and that that points towards incorporation. The matters which determine the collective workload include(a) how many passengers are on board,(b) how the flight is configured and(c) what services are to be provided to the various categories of passengers. Factor (a) is outside the control of the parties. Factors (b) and (c) are matters for the decision of BA and are not dealt with in any provision of the WSA. Crew complements appear to have been agreed by reference to the anticipated or usual collective workload. If crew complements are reduced, it seems to me that there must be some impact on individual workload. The judge accepted that the changes instituted in November 2009 have resulted in increased stress and exhaustion on some occasions. However, I think it was implicit in the judge’s findings that this impact was neither very frequent nor very serious.[55]I also accept to some extent, Mr Hendy’s submission that there is an inconsistency between the notion that crew complements are not contractual and the arrangement whereby if, during a period of disruption, an aircraft has to fly with one crew member fewer than the agreed complement, pursuant to section 20.5, the crew members will be paid a cash supplement. I note that there is no express provision in section 20 covering the payment of a cash supplement – presumably it is to be found elsewhere - but it is agreed that, if the conditions outlined in section 20.5 come into operation, that supplement will be paid. It seems to me to follow that section 20.5 must be intended to be individually enforceable; it directly affects the pay earned. In so saying, I am rejecting Mr Carr’s submission that the whole of section 20 is a purely collective agreement between BA and the Union. He points to the fact that, when BA wants to declare a period of disruption so as to bring section 20 into operation, it has to seek the agreement of the Union, the grant of which is by no means a foregone conclusion. It does not seem to me that the fact that the Union can prevent BA from declaring a period of disruption can have any impact on the effect of the provisions which come into force if the Union gives its agreement. The Union has a legitimate interest in ensuring that these special provisions are not inappropriately invoked. Section 20 contains a number of provisions, to provide flexibility; for example by staff volunteering to work on rest days or by BA deciding to close down a zone of the aircraft. Only if those measures cannot produce the desired effect of flying with the usual agreed complement (as set out in section 7.1) will the special measure of flying ‘one down’ come into effect. But, if, as a last resort, the aircraft has to fly with a ‘one down’ crew, the crew will receive the pay supplement, which must be individually enforceable. I would hold that paying a crew member for flying ‘one down’ amounts to an implied admission that crew complements are related to how hard an employee has to work and are part of the package of pay, productivity and working conditions. However, I do not think that that conclusion takes the argument much further than the position I had reached in paragraph 54 where I concluded that crew complements can and sometimes do have some impact on working conditions. But, Mr Hendy has made some progress.[56]It seems to me, however, that Mr Carr also has a powerful argument to deploy in opposition. What, he asks rhetorically, would be the effect on the business of BA if an individual cabin crew employee were able to refuse to work if BA decided to or was obliged to fly an aircraft without the agreed crew complement? There would, he answers, be anarchy. An aircraft could be grounded at the will of one or two uncooperative members of staff who refused to board and work if the aircraft was not to carry the full agreed crew complement. The parties cannot have intended that consequence to follow. I must confess that, during the hearing, I was not greatly impressed by this argument. It seemed rather theoretical to me. After all, no individual had attempted to enforce his or her supposed contractual right to have crew complements maintained by refusing to work with a reduced crew complement. There have been collective strikes but no individual ‘refuseniks’. Also, if there were to be a single refusal, it would probably be quite easy for BA to find a willing substitute so as to allow the flight to proceed. Section 7.4 of the WSA makes express provision for what is to happen if, for any reason, it is not possible to provide a full crew complement for a return flight. BA has to make every effort to find another crew member but, if all efforts fail, the standard of service will be adjusted so far as necessary and the flight will proceed. So, in practice, the individual could not wield such unlikely power.[57]However, on reflection, I now accept that the fact that no crew member has taken unilateral action is irrelevant. What matters is that, if section 7.1 is individually enforceable, individual crew members could, with impunity, refuse to fly with a reduced crew complement (even though the complement was lawful under the Air Navigation Order). If that were so, the effect could be to delay or even prevent the departure of a flight. In particular, and more realistically, if three or four crew members were individually to refuse to fly with a reduced crew complement, it might be difficult for BA to find replacements at short notice and the option of reducing service levels would not be open to them because the minimum legal crew requirements would not be satisfied.[58]Mr Carr accepted that, if BA were to roster a flight with a crew complement less than the minimum legal requirement, there would be a breach of the law and probably a breach of the employer’s duty to provide a safe system of work and/or a breach of the implied term of trust and confidence. In such circumstances, the employee would be entitled to refuse to fly. But, he submitted, a reduction short of that would not be a breach of any implied term; if it was anything it could only be a breach of section 7.1. When one considers, he said, the disastrous commercial effect of holding Section 7.1 to be individually enforceable, one is driven to the conclusion that the parties could not have intended such a consequence.[59]I do not accept the suggestion, floated in argument at one stage and apparently not dismissed by Sir Christopher Holland, that the language of section 7.1 was aspirational. I think the language gave a definite undertaking. The question is whether or not it was an undertaking to an individual employee.[60]As I have said, I have found this issue difficult. It is not clear from the language whether section 7.1 is intended to be enforceable by an individual employee. In that it is unlike several other subsections which clearly impose duties on an individual employee or obligations on the employer towards individual employees. In my view, examining the context of the agreement as a whole does not help with the construction of section 7.1.[61]I am satisfied that crew complements do impact to some extent upon the working conditions of individual employees and that that is a pointer towards section 7.1 being intended as an individually enforceable term. I also accept that the fact that crew complements have, in the past, been negotiated as part of a productivity deal is another pointer towards enforceability. I accept also that an undertaking as to the size of the team of workers who will undertake a task may, in some circumstances, be enforceable by individuals.[62]Set against that are the disastrous consequences for BA which could ensue if this term were to be individually enforceable. It seems to me that they are so serious as to be unthinkable. By that I mean that if the parties had thought about the issue at the time of negotiation, they would have immediately have said it was not intended that section 7.1 could have the effect of enabling an individual or a small group of cabin crew members to bring a flight to a halt by refusing to work under complement. So, if I apply the rule by which a term of uncertain meaning is to be construed, that of asking what, objectively considered in the light of the factual matrix against which the agreement was made, the parties must be taken to have intended the provision to mean, I am driven to the conclusion that they did not mean this term to be individually enforceable. I accept that there are pointers towards individual enforceability but these are not conclusive. In the end, I think that the true construction of this term is that it was intended as an undertaking by the employer towards its cabin crew employees collectively and was intended partly to protect jobs and partly to protect the crews, collectively, against excessive demands in terms of work and effort. I think that it was intended to be binding only in honour, although it created a danger that, if breached, industrial action would follow.

The reasonable changes clause

[63]In the light of my conclusion on the issue of incorporation, I would dismiss the appeal. As I am aware that the other members of the Court are in agreement on this issue, it is not necessary for me to deal with the effect of the reasonable changes clause. If I were to do so, it would have to be on the hypothetical basis that I had concluded that the crew complement provision in section 7.1 was enforceable by individual employees and that, in the absence of the reasonable changes clause, the crew reductions imposed in November 2009 were a breach of contract. In those circumstances, there would be such a degree of artificiality in the reasoning that I am reluctant to embark upon it.

Injunction

[64]Sir Christopher Holland opined (obiter) that, even if he had found that section 7.1 was individually enforceable he would not have granted injunctions requiring BA to reinstate their former cabin crew complements. He said that the balance of convenience was strongly against such a course. With great respect to the judge, I do not share that view. It seems to me that the main issue (when considering whether there should be a permanent injunction after a full hearing, as opposed to an interim injunction in advance of the hearing) is whether damages would be an adequate remedy for the claimants. Here I think it is clear that they would not be. If the only options for the claimants were to leave their jobs or to work in compliance with the reduced complements, they would be faced with the prospect of repeatedly suing for damages in respect of a continuing breach. The damages for each breach would be small but the burden of having to take proceedings periodically seems to me to be quite unacceptable.[65]I would of course accept that there would be considerable inconvenience to BA if they were required to put their crew complements back to pre-November 2009 levels. On any view, they could not realistically be expected to do so without several months’ notice. They might have to take on and train additional staff, given that they have operated the new rosters with a reduced staff. But that does not seem to me to be a reason for not making the order at all. However, all this is hypothetical as I have found that there has been no breach.[66]I agree.[67]I also agree.

Cited in 18 later judgments

and 9 more of the most senior