BA pilots to get their day in Supreme Court after key EU ruling

Old Square Chambers’ Jane McNeill QC has won a partial victory for British Airways pilots who can now challenge in the Supreme Court how they are remunerated while on leave, the EU Court of Justice has ruled.

British Airways’ head of employment law Navdeep Deol instructed 11KBW’s Chris Jeans QC to defend the matter which was referred to the EU court by the Supreme Court in March (see judgment).

Thompsons head of employment Vicky Phillips instructed McNeill for the claimants.

The case concerns the right to paid holiday for tens of thousands of workers - flight crew and cabin crew - across the civil aviation sector.

The challenge comes after BA’s attempt to change how it remunerates pilots when they are on annual leave, arguing that it is sufficient to pay them the basic rate even though this is significantly less than full pay.

The pilots argued that, under EU law, the amount paid in respect of annual leave must be based on their entire remuneration, including the supplementary payments.

Both the Employment Tribunal and the Employment Appeal Tribunal found in favour of the appellants. However, the Court of Appeal overturned the ruling, finding that the fixed annual sum alone constituted remuneration. The case then went to the Supreme Court, which referred five questions to the ECJ.

This included whether payments whilst on annual leave should correspond with or be broadly comparable to “normal” pay and whether the level of pay may be determined by collective or other agreement.

The ECJ held that salaries paid while pilots are on leave should include a supplement for the time spent flying because it is related to the performance of their tasks, the ECJ said.

The court found that “an airline pilot is entitled, during his annual leave, not only to the maintenance of his basic salary, but also, to all the components intrinsically linked to the performance of the tasks which he is required to carry out under his contract of employment”.

The case has now been referred back to the Supreme Court for consideration.