British Airline Pilots' Association v Jet2.com Ltd

Compulsory statutory collective bargaining under Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992 is confined to core contractual terms concerning pay, hours and holidays. Operational policies and practices fall outside the obligation where they are aspirational, non-contractual, or require operational flexibility that makes incorporation into individual employment contracts inappropriate. An employer may communicate proposed pay increases directly to employees before bargaining, provided contractual pay terms are not varied until the employer has discussed the proposals with the recognised union.

The claimant trade union was recognised for collective bargaining on behalf of the defendant airline’s pilots. The Central Arbitration Committee imposed a specified bargaining method under Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992.

The claim concerned whether the method required bargaining about airline rostering arrangements and whether the defendant breached it by announcing proposed pay increases before discussions with the union had concluded.

1. Rostering. The specified method concerned only contractual terms affecting the core terms of pay, hours and holidays. Matters falling within other, deliberately excluded aspects of the wider statutory definition of collective bargaining were outside the statutory scheme.
2. Some rostering provisions were apt for incorporation as contractual terms, including provisions establishing annual entitlements. Other provisions were expressed as objectives or aspirations, used language such as “endeavour”, or preserved flexibility for unusual or unforeseen operational circumstances. Those provisions were non-contractual and were not apt for incorporation.
3. The need for an airline to retain operational flexibility, together with the potentially serious consequences of treating operational rostering policies as individually enforceable, supported that conclusion. Applying the approach in Malone v British Airways plc, the specified method would not make business sense if incorporated into individual contracts so as to govern such operational policies.
4. The claimant could not bring non-contractual or operational matters within the bargaining obligation by asserting that its proposals were intended to have contractual effect. The court also rejected reliance on article 11 of the European Convention on Human Rights.
5. Pay. The specified method did not prohibit the defendant from communicating proposed pay increases directly to pilots or from having a negotiating position before discussions. It required the defendant to discuss pay with the union before varying contractual pay terms. The defendant had complied with that obligation in each relevant pay round.
6. The claim was dismissed.