Feb 2
Following the defendant air carrier’s decision to recognise trade unions for its pilots and cabin crew, negotiations with a trade union over the terms of a recognition agreement resulted in a stalemate, which led to the defendant’s employees taking strike action. The strikes resulted in the cancellation of a number of flights in a number of countries, including some which had been scheduled to depart from an airport in the United Kingdom. The Civil Aviation Authority brought enforcement proceedings against the defendant pursuant to Part 8 of the Enterprise Act 2002 in respect of its failure to compensate affected passengers under Parliament and Council Regulation (EC) No 261/2004. The defendant contended that the cancellations were caused by “extraordinary circumstances” within the meaning of article 5(3) of the Regulation and hence that compensation was not payable. The judge rejected that contention and made an enforcement order requiring the defendant to pay affected passengers compensation.
On the defendant’s appeal—
Held, appeal dismissed. Parliament and Council Regulation (EC) No 261/2004 was designed to provide a high level of protection for passengers and the derogation in article 5(3) was to be strictly interpreted. When determining whether an event was inherent in the normal exercise of an air carrier’s activity, it was relevant to ask whether it stemmed from an external source. Where employees of an air carrier had chosen to be represented by a trade union, the union had to be seen as internal to the activity of the carrier rather than outside it. In any event, since the strikes at issue in the present case did not take place until after the employees had been balloted, the fact that trade unions were involved was not of any real significance. While strikes were plainly capable of amounting to “extraordinary circumstances”, absent the involvement of an external factor such as terrorism, a strike concerning the pay or employment conditions of employees of an air carrier would not involve “extraordinary circumstances”, since negotiations with employees about such matters were clearly inherent in the normal exercise of the air carrier concerned and carried with them the risk that one or both sides would make demands that the other saw as unreasonable, that they would break down and that the employees would resort to strike action. The question whether any particular strike constituted “extraordinary circumstances” did not depend on whether a demand made by staff of an air carrier, or by a trade union on their behalf, was unreasonable. Accordingly, the strikes from which the cancellations arose, relating as they did to employment conditions of employees of the defendant, did not constitute “extraordinary circumstances” whether or not the aims of the strikers were reasonable or achievable and notwithstanding the involvement of trade unions (paras 31–33, 39–40, 43–44, 45, 46).
Per curiam. A sympathy strike whose aims were wholly unrelated to the strikers’ employer’s activities or a strike in which an air carrier’s staff sought to have flights re-routed in response to a terrorist threat may constitute "extraordinary circumstances" (paras 40, 45, 46).
Brian Kennelly QC and Tom Coates (instructed by Stephenson Harwood LLP) for the defendant.
Kevin de Haan QC and Michael Coley (instructed by Civil Aviation Authority) for the Civil Aviation Authority.