Incorporation of Collective Agreements

[Thanks to Kathleen Donnelly of Henderson Chambers for providing this case summary]

The Court of Appeal yesterday handed down its judgment in Malone and others v British Airways Plc, dismissing the individuals' appeal from the High Court's decision this February.

BA had unilaterally reduced crew complements on its aircraft below levels which had been agreed between BA and the union. The cabin crew claimed that the collective agreement had been incorporated into their individual contracts of employment, but BA argued that the provision in question was a collective provision only.

In a finely balanced judgment, the Court of Appeal held that although the particular provision impacted on the working conditions of the cabin crews (and was in that respect "apt for incorporation"), the "disastrous consequences" for the business if the provision were to be individually enforceable, drove the conclusion that the parties could not have intended such a consequence.

The CA largely decided the case on the hypothetical possibility of an individual or small group of cabin crew members bringing a flight to a halt by refusing to work under complement, which it regarded as "so serious as to be unthinkable".

It was accordingly held that the provision was intended as an undertaking towards its cabin crew employees collectively, binding only in honour.