British Airline Pilots Association v Jet2.Com Ltd

Under Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992, compulsory collective bargaining is defined by subject matter. It is not confined to proposals that would create individually enforceable contractual rights or that concern only core entitlements. Detailed procedures and mechanisms may fall within scope where they relate sufficiently closely to pay, hours or holidays. The duty to negotiate does not require an employer to agree to the proposal, so operational flexibility affects the outcome rather than negotiability. A proposal may nevertheless fall outside the statutory scope where its connection is too remote or indirect.

BALPA obtained compulsory recognition from the Central Arbitration Committee to conduct collective bargaining for Jet2’s pilots. The parties could not agree a bargaining method, and the CAC imposed one based on pay, hours and holidays. BALPA later proposed a detailed Scheduling Framework covering rostering, days off, standby, rest, leave and related procedures. Jet2 declined to negotiate most of the proposals. Supperstone J dismissed BALPA’s claim for declarations concerning the scope of statutory bargaining. BALPA appealed in relation to rostering only. The central issue was whether the disputed provisions related to pay, hours or holidays, even though some might not create individual contractual rights and might constrain operational flexibility.

1. Appeal allowed. Underhill LJ gave the leading judgment, with Briggs LJ and McFarlane LJ agreeing. The court declared that the Framework proposals fell within statutory collective bargaining under paragraph 3(3) of Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992, except for the matters identified below.
2. Paragraph 3(3) establishes a subject-matter test. The phrase relating to pay, hours and holidays is not limited to proposals creating individual contractual rights, nor to simple or core numerical entitlements. Procedures, processes, managerial arrangements and monitoring mechanisms may be within scope where they are integral to identifying or regulating those matters. The relationship may nevertheless be too remote or indirect.
3. The contractual language in paragraph 17 of the Trade Union Recognition (Method of Collective Bargaining) Order 2000 concerns employer proposals to vary contractual terms. It cannot be read back so as to restrict union proposals, particularly since paragraphs 14 to 16 refer simply to proposals for adjustments to pay, hours and holidays. The wider definition in section 178(1) is excluded by paragraph 3(2), but that does not impose a core-versus-ancillary limitation on paragraph 3(3).
4. Negotiability is distinct from outcome. Jet2 had to negotiate about in-scope rostering proposals, but it was not obliged to agree to them. It could reject objectionable provisions or agree them without individual enforceability. The reasoning in Malone v British Airways plc, [2010] EWCA Civ 1225, [2011] ICR 125, concerned enforceability of an agreed term and was therefore distinguishable.
5. The court treated the ministerial statement relied on by Jet2 as inadmissible under Pepper v Hart, [1993] AC 593, because it did not address the precise interpretive issue. In any event, the court doubted that paragraph 3(3) was genuinely ambiguous.
6. Most detailed rostering provisions were within scope, including roster publication, allocation of days off, standby limits and procedures, contactability, night duties, swaps, leave booking, roster stability, scheme suspension, linked rostering and enhanced rest. The airport standby lounge provision, positioning provisions, compassionate and wedding leave, maternity and paternity leave, and rostered detachments were outside scope, subject to the unargued marginal points concerning positioning.

• Court of Appeal (Civil Division) — Allowed BALPA’s appeal and granted a declaration that the Framework proposals were within the scope of statutory collective bargaining, save for specified exclusions.
• High Court, Queen’s Bench Division — Supperstone J dismissed BALPA’s claim concerning the disputed rostering provisions on 23 April 2015.