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Employment Law

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20 JUL 2017

British Airline Pilots’ Association v Jet2.com Ltd [2015] EWHC 1110 (QB) and [2017] EWCA Civ 20

British Airline Pilots’ Association v Jet2.com Ltd [2015] EWHC 1110 (QB) and [2017] EWCA Civ 20
[2015] EWHC 1110 (QB), Queen's Bench Division, Supperstone J, 23 April 2015

[2017] EWCA Civ 20, Court of Appeal, McFarlane, Underhill and Briggs LJJ, 18 January 2017

If a trade union’s application for statutory recognition succeeds, the employer and the union must try to agree a method of collective bargaining. Collective bargaining for these purposes is limited to ‘negotiations relating to pay, hours and holidays…’ (Para 3(3) of Part I, Schedule 1A of the Trade Union and Labour Relations (Consolidation) Act 1992). If no agreement can be reached they do not, the Central Arbitration Committee can impose a method of collective bargaining (the ‘Specified Method’). This is normally the ‘model’ method set out in regulations. That requires a seven-step negotiating procedure for changes relating to pay, hours of work and holiday.

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The employees’ terms of employment about pay and hours provided no entitlement to any minimum number of hours’ work. But, apart from authorised absence and pre-booked annual leave, they had to be available for work if required. There was a separate policy for rostering flight staff, which was expressed in aspirational terms.

The company refused to negotiate with the union over rostering arrangements. The union complained to the High Court that this breached the Specified Method. The court accepted the company’s argument that the Specified Method was only required in respect of changes to contractual terms about pay, hours and holiday, and that the rostering arrangements were set out in a non-contractual policy document. The Court of Appeal disagreed. The Specified Method applies equally to non-contractual arrangements. Furthermore, the Court held, arrangements for managing and monitoring the rostering of pilots, how rosters should be published and the arrangements for swapping rostered duties all ‘related’ to the core terms of pay, hours and holidays even if they did not directly determine them.

The company pre-empted all negotiations with the union over pay by writing directly to its employees stating the pay offer it was going to make; implementing it; then holding the bare minimum number of meetings with the union to comply with the Specified Method; and deciding in advance of the ‘negotiation’ meetings that they would not change their stance on anything. The pay offer was sufficiently attractive to its staff for there to be little purpose in the union attempting to negotiate any improvement. There was evidence to suggest that the company was motivated by dislike of trade unions - describing them as ‘professional trouble-makers’. The union argued this did not amount to negotiation and so breached the Specified Method. The High Court disagreed. The company had held all the required meetings. Motives of the parties were irrelevant. The company’s wish to minimise the union’s influence mirrored the union’s wish to maximise its influence. Both were hostile to the other, the union having made public threats of industrial action and having praised competitors in order to damage the company. This part of the High Court’s decision was not appealed against and so was not commented on by the Court of Appeal.