Court of Appeal
The appellant employees (M) appealed against a decision ((2010) EWHC 302(QB), (2010) IRLR 431) that the respondent employer (B) had not acted in breach of contract when it reduced crew numbers on certain flights. M were employed as cabin crew by B. B had reduced the cabin crew numbers on certain flights below the levels which had been agreed through collective bargaining with M's trade union. However, the levels of crew remained above those required by law. M's contracts of employment stated that the collective agreements were incorporated into the contract. The collective agreements set out the required crew levels and also contained a "disruption agreement" which stated that if a flight was required to operate with one less crew member during a period of disruption, the other members on the flight would receive financial compensation. The judge found that although some parts of the collective agreement had been incorporated, the provisions relating to crew complements were not apt for incorporation, and the parties to the collective agreement had never intended the crew complement provisions to be enforceable by individual employees. M submitted that the crew complements were apt for incorporation because they impacted upon the working conditions of the cabin crews and were not merely an expression of aspiration.
HELD: (1) The language of the crew complement provisions was not aspirational. It was a definite undertaking, but the question was whether or not it was an undertaking to an individual employee. There were several pointers towards the section being intended as an individually enforceable term: the crew complements impacted upon the working conditions of individual employees and were in the past negotiated as part of a productivity deal (see paras 59, 61 of judgment). There was also an inconsistency to some extent between the notion that crew complements were not contractual and the arrangement under the collective agreement whereby if, during a period of disruption, an aircraft had to fly with one crew member fewer than the agreed complement, crew members would be paid a cash supplement. Paying a crew member for flying "one down" amounted to an implied admission that crew complements were related to how hard an employee had to work and were part of the package of pay, productivity and working conditions (paras 54-55), National Coal Board v National Union of Mineworkers (1986) ICR 736 Ch D and Kaur v MG Rover Group Ltd (2004) EWCA Civ 1507, (2005) ICR 625 considered. (2) It was necessary to ask what the parties intended the provision to mean, objectively considered in the light of the factual matrix against which the agreement was made. The consequences for B if the term was individually enforceable were disastrous. If the parties had thought about the issue at the time of negotiation, they would immediately have said that it was not intended that the crew complements could enable an individual or a small group of cabin crew to bring a flight to a halt by refusing to work with a reduced complement, even though the complement was lawful. The parties therefore did not mean the term to be individually enforceable. The true construction was that the term was intended as an undertaking by the employer towards its cabin crew employees collectively and was intended to be binding only in honour (paras 57, 62).
 EWCA Civ 1225
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