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EU261: pilot and crew illness NOT ‘extraordinary circumstance’ says Supreme Court

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British Airways has lost a legal battle regarding EU261-equivalent compensation payments after six years of to-ing and fro-ing.

The final judgement, which has been issued by the Supreme Court, sets a new UK precedent when deciding whether compensation is liable in the case of staff illness during flight disruptions.

A quick refresher, for anyone who is unfamiliar with the law:

EU261: pilot and crew illness NOT 'extraordinary circumstance'

EU261 is a regulation in EU law that establishes passenger rights and airline obligations during periods of flight disruption, including denied boarding, cancellation and delay.

The regulation was absorbed into UK law following Brexit and remains applicable. It sets fixed payment amounts in instances of delay as well as your rights as a passenger to a refund or rebooking, should things go wrong.

In particular, it outlines the levels of compensation that are payable when a flight is delayed. The full amount depends on the length of your flight and your delay, but payouts are due when a flight of less than 1,500km is delayed by 2+ hours.

Lipton v BA Cityflyer Ltd

In this case, Mr and Mrs Lipton were returning to London from a trip to Milan in January 2018. Unfortunately, their flight was cancelled because their pilot was unexpectedly taken ill and they were rebooked onto another flight which arrived 2 hours and 36 minutes after their originally scheduled arrival.

As Milan to London is less than 1,500km, the Liptons claimed €250 compensation each as mandated by EU261.

BA Cityflyer denied the claim on the basis that the pilot’s illness constituted an “extraordinary circumstance” outside of the airline’s control and not eligible for compensation under EU261, which carves out an exemption for such events.

The Liptons escalated the case, first to Portsmouth County Court and on appeal to Winchester Country Court and the Court of Appeal.

It was then referred to the Supreme Court for a final judgement. Crucially, the Supreme Court judges have now sided with the Liptons, judging that staff illness does NOT constitute an “extraordinary circumstance” and unanimously dismissing the airline’s appeal.

Here is the press summary of the ruling, or you can read the full 93-page judgement itself:

“The Supreme Court unanimously holds that the pilot’s non-attendance due to illness was an inherent part of Cityflyer’s activity as an air carrier and cannot be categorised as extraordinary. That phrase must be given its usual meaning, which denotes something out of the ordinary. Staff illness is commonplace for any business.

Just as the wear and tear of an aircraft’s physical components is considered an inherent part of an air carrier’s activity, so too is managing illness of staff. An event can be external to a carrier but still inherent to its operations.

It is irrelevant whether staff fall ill whilst they are off-duty; their attendance or non-attendance for work is an inherent part of the carrier’s operating system. It is significant that pilots are subject to rules outside their working hours, such as a ban on drinking in the lead-up to a flight.”

Arguably this is a statement of the obvious and should not have required six years of legal cases or indeed a 93-page judgement to confirm ….

What impact will this have?

British Airways said “We are disappointed with this decision and respect the judgment of the Court.”

However, this ruling has implications far beyond British Airways, the Liptons or this specific case.

Going forward, this judgement would suggest that no airline will be able to claim that staff illness is an extraordinary circumstance in order to avoid paying out the compensation as set out in the UK equivalent of EU261.

It should, hopefully, make any claims due to staff illness clearer and reduce the amount of back-and-forth between passengers and airlines.

Remember that EU261 and its UK equivalent only apply to UK/EU-based airlines as well as all airlines when departing the UK/EU.

It does not apply to a non-UK/EU airline arriving in the UK/EU from a non UK/EU country.

This case, however, only applies to claims made from flights arriving into/leaving the UK because those claims are now heard under the new UK equivalent of EU261. A delay flying in/out of mainland Europe would be claimed under EU261 which will not look at UK court precedent.

You can read the full regulation, as copied into UK law, on the GOV.UK website here. It is well worth acquainting yourself with should you ever find yourself with the short end of the stick.

Comments (137)

  • Bumblebee says:

    These airlines need to pay up. This weekend my son was due to fly to Paris 8 am, they cancelled when he was in the departure lounge. We rebooked another flight for 4pm, my son was inpatient and took the Eurostar, to then find out they cancelled the 2nd flight too. Hoping for a double payout, but I am sure they will try and avoid the compensation.

    • JDB says:

      Were neither of these cancellations relating to the weather/ATC issues that caused widespread disruption Sat/Sun/Mon?

    • Paul says:

      You would be entitled to double payout but only if it were not weather related or connected to the ATC issues last weekend

    • T says:

      They should pay for the Eurostar too

      • BA Flyer IHG Stayer says:

        On what basis?

        The (unnamed) airline might not unless the rebooking was discussed with them first.

        Going off piste is never a good idea.

        • T says:

          Perhaps. Alternative transport is potentially on the table, it’s not really clear what is reasonable. I guess the refund for the flight is the easiest option.

      • Bumblebee says:

        Amex said they will payout once Easyjet coughs up.

  • Jonathan says:

    This is great news for the consumer. The travel industry as a whole reminds me of the used car sales business in the 80s/90s when it comes to customer care! It’s high time that the law stepped in!!

    • Bagoly says:

      I’m hoping that this new government “unburdened by doctrine” will have the CAA (or the CMA?) run a website to which the airlines have to submit details of each flight which arrives more than 105 minutes late, and all cancellations made within 16 days.
      Airline to give exact delay, and their suggested reason, with fines if they are found to have submitted incorrect information.
      The state body to challenge any reasons that they think are evasive (and timing if close to the relevant 120/180/240 cutoff) – if one or two people work on this full time, they can apply consistency, and the airlines will quickly start submitting accurate information.
      Don’t change the written law, don’t administer the refunds, don’t advise individuals – just enable consumers to address airlines trying to evade the law – replace passengers and airlines having the same argument about the same flight dozens of times.

      The perhaps the EU might follow the UK example.

      Perhaps such a CAA administrator might have decided that crew illness at outstation was exceptional – as a consumer I would be happy to accept “losing” on some morally borderline cases in return for the gains of obviously liable cases getting dealt with promptly.

  • Claire says:

    Not such a great win though, in the long run.. This decision will drive the cost of air travel further. Think about the cost implications of your future fares, taking this to high courts for 250 euros is gonna have a bigger impact on everyone’s pocket especially on hard working families can just afford holiday!

    • Rob says:

      The thing you want to watch is the case currently working through which would make airlines automatically pay out for delays. At present I suspect 80% do not bother to claim.

      • Claire says:

        If this is true and it passes would have devavasting impact on the airline industry. Fares would rise astromically. Fares are never that cheap now anyway. Airlines , don’t delay or cancel flights on purpose but some travellers feel like the do it out of choice just to ruin their day. Not the case.

        • Rob says:

          Except they do. Why do you think rule came in? It was very common for airlines to deliberately cancel flights if they were only lightly loaded and move everyone to a flight later in the day or on the next day.

          The EU didn’t wake up one day and decide to fix a problem that didn’t exist.

          • Claire says:

            Well that point, makes commercial sense, airlines need to be profitable of course and it is environmentally responsible not to run with half empty flights, especially important given the current climate. . Lots of work is done to balance schedules based on supply and demand.

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