Malone & Ors v British Airways Plc

A provision in a collective agreement expressly incorporated by general words into an employment contract is individually enforceable only if the particular provision is apt for incorporation. The court must ascertain the parties’ objective intention from the provision’s language, context, factual matrix and practical consequences.

An effect on workload or other working conditions points towards individual enforceability, but is not decisive. A definite undertaking may instead protect employees collectively and bind the employer only in honour. The court must examine each provision separately, because the same collective agreement may contain both enforceable and unenforceable terms.

More than 5,000 Heathrow-based cabin crew employees claimed that provisions fixing crew complements in collective agreements between British Airways Plc and Unite had been incorporated into their individual employment contracts. They sought declarations, injunctions and damages after the employer unilaterally reduced the complements.

Sir Christopher Holland dismissed the claims, holding that the provisions were not apt for individual incorporation. He indicated that the reductions would alternatively have been permitted by reasonable-changes clauses applying to some employees and that he would have refused injunctions.

The employees appealed on incorporation, the reasonable-changes clauses and injunctive relief. The central issue was whether the crew-complement undertaking was enforceable by individual employees.

1. Appeal dismissed unanimously. The crew-complement provisions were not enforceable by individual employees. Lady Justice Smith gave the judgment, with which Lord Justice Jackson and Lord Justice Ward agreed.
2. An express general incorporation clause does not make every provision of a collective agreement an individual contractual term. The specific provision must be examined to determine whether, objectively construed in its context and factual matrix, the parties intended it to be individually enforceable. The same collective agreement may contain enforceable promises, unenforceable explanations or aspirations, and provisions intended to operate only collectively.
3. The crew-complement provision contained a definite undertaking and was not merely aspirational. Crew numbers affected workload and sometimes caused increased stress and exhaustion. Their historical negotiation as part of productivity arrangements also pointed towards enforceability. The individually enforceable payment for working one crew member short during disruption further showed that complements related to pay, productivity and working conditions.
4. Those considerations were outweighed by the practical consequences of individual enforcement. An individual or small group could refuse with impunity to work below the agreed complement, although the flight satisfied the lawful minimum under the Air Navigation Order 1989. This could delay or prevent a flight. Objectively, the parties could not have intended that commercially serious consequence. The undertaking protected jobs and crews collectively against excessive demands and was binding only in honour, with industrial action rather than individual contractual enforcement as the contemplated consequence.
5. The reasonable-changes issue did not arise. Deciding it would have required the artificial assumption that the complement provision was individually enforceable and had been breached.
6. Obiter, if an enforceable continuing obligation had been breached, damages would not have been adequate where employees would otherwise have to bring repeated claims for small amounts. Operational inconvenience might justify allowing several months for compliance with a permanent injunction, but would not necessarily justify refusing relief altogether.

1. Court of Appeal (Civil Division): The employees’ appeal was dismissed unanimously. The crew-complement provisions were not individually enforceable.
2. Queen’s Bench Division: Sir Christopher Holland dismissed the contractual claims on 19 February 2010. He held that the provisions were not apt for incorporation into individual employment contracts.
3. Queen’s Bench Division: Butterfield J had earlier refused an interim injunction and directed a speedy trial.