British Airways plc v Williams: UKEAT/377/07

EAT: Keith J, Mr C Edwards and Mr I Ezekiel: 28 February 2008

The claimants, flight crew employed by the appellant employers, were paid a basic salary plus additional amounts designated as “flying time” and “time away from base” when working, but during periods of annual leave they received the basic pay without the additional allowances. They made complaints to an employment tribunal that by paying only the basic pay the employers had refused to permit them to exercise their right to paid annual leave provided by regulation 4 of the Civil Aviation (Working Time) Regulations 2004, which implemented the Aviation Directive 2000/79/EC, adopted following a European-wide agreement in 2000 to make provision for workers in the air transport industry, who had been excluded from the Working Time Directive 93/104/EC. At a pre-hearing review an employment tribunal decided as a preliminary issue that the claimants’ pay during periods of annual leave should be calculated in accordance with section 224 of the Employment Rights Act 1996.

The employers appealed.

The Employment Appeal Tribunal held:
By virtue of clause 3 of the 2000 agreement, the conditions on which workers in the civil aviation industry were to be granted paid annual leave was to be laid down by “national legislation and/or practice”. Under article 3 of Directive 2000/79 “national practice” was to be identified by reference to collective agreements, but no collective agreement dealt with how the claimants’ annual leave pay was to be calculated. The relevant “national legislation” was the Civil Aviation (Working Time) Regulations 2004, and the absence of any formula in the Regulations for calculating how the pay of a crew member on annual leave was to be calculated meant that the tribunal had to determine how “paid” in regulation 4(1) was to be construed. That construction had to be in accordance with the pay which article 7 of Directive 93/104 required workers to receive while on annual leave, which had been interpreted as being remuneration comparable to that received when working. The only way the claimants could be so remunerated was for their leave pay to be calculated by reference to the supplements they received in addition to their basic salary when working.

The appeal was dismissed.

Appearances: Christopher Jeans QC and Andrew Short (Solicitor, British Airways plc) for the employers; Jane McNeill QC and Keith Bryant (Simpson Millar) for the claimants.