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Is BA trying to make you think you’ve given up your EU261 compensation rights?

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Regular readers will know that we have given much coverage in recent months to British Airways and its approach to EU261 compensation.  This has primarily been around a perception that the airline is deliberately targeting Avios redemptions, and specifically British Airways American Express 2-4-1 redemptions, for downgrades because they are due less – or indeed no – compensation.

It seems that the airline has a few more tricks up its sleeve, however.

British Airways BA A380 flying

When you are downgraded, it is standard British Airways policy to give you a £200 gift card on the spot.  Historically this has been ex-gratia compensation and is, basically, shutting you up.  All of the other compensation you are due – EU261 (75% of the one-way ticket price) and the difference in cost between the ticket you bought and the ticket you flew – does not arrive until much later.  This no longer seems to be the case.

Here is a copy of the gift card covering letter.  This one is for £400 because it covered two people (click to enlarge):

BA EU261

The text at the top says:

You agree to accept this Card as the method of payment of your compensation under …. EU261.

Now …. it is true that, under Article 7.3 of EU261, British Airways can – with your written agreement – pay you compensation in vouchers, gift cards, Avios or whatever it likes.  However, this is ONLY with your written agreement which you do not have to give.  You are entitled to demand cash.

However, we then move on. This is what the EU regulations state:

Article 15

Exclusion of waiver

1. Obligations vis-à-vis passengers pursuant to this Regulation may not be limited or waived, notably by a derogation or restrictive clause in the contract of carriage.

2. If, nevertheless, such a derogation or restrictive clause is applied in respect of a passenger, or if the passenger is not correctly informed of his rights and for that reason has accepted compensation which is inferior to that provided for in this Regulation, the passenger shall still be entitled to take the necessary proceedings before the competent courts or bodies in order to obtain additional compensation.

British Airways is simply not allowed to ‘call it quits’ under EU261 by giving you a £200 gift card as your full settlement.

The wording on the voucher – “You agree to accept this Card as the method of payment of your compensation under …. EU261″ – is quite clever, I think.  It does not – legally speaking – mean that you are giving up your rights to EU261 compensation but, because of how it is worded, I think 99% of the population would assume that is what it meant.

I went to the man who literally wrote the book on EU261 compensation (you can buy it on Amazon here), Professor Jeremias Prassl of Oxford University.  He told me in a statement (the bolding is mine):

Article 15 of the Regulation clearly stipulates that airlines cannot contractually limit or waive their obligations under the Passenger Rights Regulation. There is some leeway for compensation payments to be made through vouchers etc – but the amount due to the passenger cannot be varied, and there needs to be assigned agreement to pay in travel vouchers and/or other services.

My personal view is that you should never sign anything you are given by an airline.  I certainly don’t think that you should sign this waiver, given that the gift card only has a three month life.  I would also insist that the £200 be given as ex-gratia credit and not as part of an EU261 settlement, which is what it has historically been in the past.

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Comments (109)

  • Optimus Prime says:

    I found this blog not long ago hence so far I’ve enjoyed only one CW 241 redemption.

    I have two coming up later on this year but since I’ve read about downgrades I’m feeling more worried than excited about my trips…

    • Genghis says:

      V limited no of cases. Don’t worry

      • Andy says:

        Me too. I have paid for 8 upcoming nights in the Manderian Oriental LAS using them

      • Anon says:

        I’ve used 4 x 241s (three in F, one in C) and never been downgraded – yet! But as Genghis says, limited number of cases, don’t worry.

  • Lbc says:

    BA is becoming such a crooked company… and always on strike… I am only using my avios on hotels, i dont fly BA anymore.

    • TripRep says:

      Plenty of other airlines accept Avios tho… 🙂

      • the realharry1 says:

        the ‘always on strike’ is an odd comment since nearly all passengers were/ will be either unaffected by the recent/ next strikes or at worst may have/ had to take their flight at a slightly different time

  • Geoff says:

    ..but not 241 vouchers presumably – I must learn about using Avios elsewhere though.

  • Clive says:

    This attitude to compensation seems so outdated – we know many companies (such as, in my recent experience, Amazon and Apple) have shown that if you make people feel generously treated when there’s a problem, they will spend a lot more money with you going forward. It isn’t rocket science – why can’t airlines figure it out?

    • the realharry1 says:

      Amazon’s operations are clearly throwing off such huge amounts of money that they can afford to be extremely generous, eg if you are unhappy with an item (supplied by Amazon) under £10 and want to return it, they refund you and generally tell you to keep the item with their compliments.

      BA otoh is still not much better than a basket case financially when you take into account future liabilities.

      • Clive says:

        Ignoring BA’s current significant profitability, it tends to be more of a vicious or virtuous circle than you imply, I think, realharry – part of the reason why Amazon is so successful (and Apple, which recently repaired my 4 year old laptop with no warranty for free and let me off a £300 bill because the store manager said ‘it felt like the right thing to do’ i.e. a clever way to win my loyalty) is that they treat people well and make those people feel relaxed about spending a lot more with them in future.

        Virgin were relatively good when we were delayed 4 hours – paid out the 600 euro each within a week after filling in one simple web form. Consequently, we booked our next two trips with them.

        • Bryan says:

          We ordered a fridge from John Lewis (£400) a year ago – the delivery driver drove on our lawn and left track marks. My girlfriend complained and we got £150 good well gesture…

          In the last 12 months I have spent another 3k in John Lewis (we had just moved house). That is what good customer service gets them.

          When booking a holiday I would only use BA now if I’m using avios or it was the only provider for that route. I might even pay a little extra to use a different airline. (I don’t travel enough to get tier status).
          That is what poor customer status gets them.

          • Rob says:

            I can beat that.

            About 10 years ago they did a kitchen in my flat, and the installation got delayed. I didn’t care, to be honest.

            A few weeks later they called me in response to my letter of complaint about my kitchen. Except I hadn’t sent one – the complainer and I shared a surname and they’d looked up my phone number by mistake. Whilst the guy was on the line, I jokingly said that I should have complained but was too busy. The guy asked me about my story, I told him and he said he’d send me £500 – which they did!

      • RussellH says:

        Is Amazon actually making money now? IAG does pay a dividend, Amazon AFAIK does not. Good CS is still good tactics though!

        • the realharry1 says:

          rolling in it

          one of the biggest money-making machines on the planet

  • Sussex Bantam says:

    Without wishing to defend BA too much here I think the phrase “gift card” is being used incorrectly. It is effectively a prepaid MasterCard which you can use anywhere including in an ATM to withdraw cash. I got one of these cards recently when I accepted being bumped off my BOS return flight – I was quite pleased to have essentially cash in my pocket rather than having to chase a claim through CS.

    (My amount was significantly more than the EC261 compo so I was happy to waive my rights to that – and I get that BA trying to circumvent the value is the main point of the article)

    • Rob says:

      I would make an EU261 claim because I do not believe that this is actually part of your compensation, irrespective of what BA says. I also doubt they track who has got a gift card.

      • JAXBA says:

        The issuance of these Ex-Gratia Payment Cards get recorded in the Customer Relations database.

    • Gavin says:

      Agree – looking at the pic, you can withdraw the whole lot straight away free of charge, and as a UK based traveller you would be daft not to, as it converts your BA gift card directly to cash!

      • Sussex Bantam says:

        You can – I just did – only issue was that the ATM wouldn’t dispense the full amount in one go. I will take the balance tomorrow.

  • pauldb says:

    Is it pedantic to point out that for a downgrade you are entitled to a % reimbursement, not compensation? I wouldn’t mind too much waiving my rights to compensation (of zero) when I’m not waiving my rights to reimbursement.

  • Optimus Prime says:

    In case of a downgrade – if your turn up at the airport with more than one bag to check in (as you’re entitled per your CW booking), what happens? And do you get downgraded for both legs of the journey immediately?

    • Anna says:

      TripRep may well know, as this happened to him…

      • TripRep says:

        We only had one checked bag each and even then BA lost one, took almost 3 days to get to us in the Maldives, thankfully the staff at the Conrad were superb in getting it on the seaplane from Male to us at Rangali.

    • the realharry1 says:

      any decent airline will obviously not charge you for the second bag

      & no you only normally get downgraded for 1 leg

      • Wally1976 says:

        Agreed but BA have proven to be significantly less than ‘decent’ on a number of occasions!

  • Anna says:

    OT and after advice again!
    I’ve got a CW flight in August which looks to be departing from a C gate. Would it be feasible to use the lounge in the B concourse then move on to C before departure? There do not appear to be lounge facilities in C. I have a vague recollection of Rob posting something about being able to walk between these two areas!

    • Alex says:

      Yes you can catch the train or walk.

      • Anna says:

        Thanks – roughly how long a walk is it? There are also some oldish posts about getting £15 credit in Starbucks in T3, does anyone know if this is still the case?

        • Gin and Tonic Please says:

          Allow 10 mins for the journey, 15 if you’re a slow walker. The Starbucks credit has since stopped (sadly).

        • The Dude says:

          The perk got cut almost two years ago. It had to be “enhanced away” as C-Gate passengers were selecting gift mugs and other Starbucks swag with their “lounge credit”. I do miss grabbing a free extra water or muffin for my transatlantic flight.

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