Employment Law Advocates

Surprisingly, in¬†nearly six months of operation, the new Supreme Court has yet to give judgment in an employment law case, but its helpful website reveals that there are currently four cases pending before it. O’Brien v Ministry of Justice, which¬†concerns whether tribunal judges are employees for the purposes of the Part-Time Worker Regulations, is due to be heard in June and leave has also been granted in Gisda Cyf v Barratt and Autoclenz v Belcher, reported on this blog. However, the first judgment will appear on Wednesday, on what¬†may seem¬†to be a narrow point about the holiday pay of airline pilots.

However, there is wider significance. Although pilots are not covered by the Working Time Regulations but rather by their own statutory instument, with a very different approach to the calculation of holiday entitlement, the argument of the 2750 claimants is that the amount of their holiday pay is a matter of European law and is not left for Member States to determine. If this is correct, it will necessarily affect the Working Time Regulations as well. This submission was rejected by the Court of Appeal last year in British Airways v Williams and it is this decision that is now subject to an appeal at the Supreme Court.

The issue is that the Working Time Directive is silent as to how holiday pay should be calculated. The Working Time Regulations take a different approach depending on whether a worker has regular hours or not. If she does not then she will receive an amount of holiday pay which is based on the average number of hours that she actually worked but, if she does, it is based on her basic hours hours alone, regardless of whether she has worked overtime or not (Bamsey v Albion Engineering). By contrast, the Civil Aviation (Working Time) Regulations say nothing about remedy so the Court of Appeal says that it is legitimate to give pilots holiday pay based on basic pay without accounting for flying time payments.

There is nothing in Stringer or any other case in support of the proposition that holiday pay should be calculated in a particular way. However, this would appear to lead to the bizarre conclusion that British Airways could choose not to pay their pilots any holiday pay at all or that a Member State could fail to provide a financial remedy for a breach of the Working Time Directive without itself being in breach of its own obligations. On the other hand, if the Court of Appeal has erred then Bamsey was surely also wrongly decided and holiday pay law will be thrown into doubt again. Watch this space on Wednesday.