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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.

Category

British Airways and Avios

Comments (138)

This article is closed to new comments. Feel free to ask your question in the HfP forums.

  • JDB says:
    11 Jul11 July 07:20

    @Rhys – re “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 ….” Most of the judgment addresses the issue of retained EU law, not the substantive issue. Note also that a court judgment does not have an ‘e’ after the ‘g’.

    • Rob says:
      11 Jul11 July 07:25

      I wrote that line to be fair 🙂

      • Solicitor says:
        11 Jul11 July 07:40

        Well done Rob for your layman summary of the Lipton case. You must have had loads of practice reading laborious PE docs back in the day. Respect!

    • Andy says:
      11 Jul11 July 08:23

      If we’re being pedantic, what was retained EU law is now known as assimilated law.

      • JDB says:
        11 Jul11 July 08:39

        @Andy – perhaps you should let the Supreme Court Justices know. The final judgment is about and even headed “Conclusion on retained EU law”. Please copy us on your letter.

    • Cicero says:
      11 Jul11 July 12:05

      “Judgment” or “judgement” are both correct. Lawyers tend to use “judgment” by convention, but it would take an exceptionally priggish individual to correct another person’s use of the word “judgement” in that context.

  • planeconcorde says:
    11 Jul11 July 07:30

    In the future airlines won’t admit a flight was cancelled due to crew illness. They will just lie it was an air traffic control restriction.

    • Rui N. says:
      11 Jul11 July 08:18

      Like meta says, the EU precedent was already quite clear that crew illness did not constitute an extraordinary circunstance. This is nothing new.

    • Rhys says:
      11 Jul11 July 08:55

      …which they will then have to prove when going to CDR.

  • GP says:
    11 Jul11 July 07:31

    The risk here is that medical diversions, weather, ATC delays etc ultimately become eligible under UK261 because they are expected to happen at some point. What this will result in is not a better customer experience but higher overall fares or possibly a compensation surcharge.

    • Kit Aspen says:
      11 Jul11 July 07:51

      Those things don’t follow, and this is the classic type of fear mongering that airlines would like to cultivate whenever faced with customer focused regulation.

      At the end of the day, aviation is one of the most fiercely competitive industries when it comes to pricing, so it doesn’t follow they would simply opt to increase fares. This ruling means airlines will be strongly incentivised to improve their operations in order to avoid compensation claims. If, and it’s a big if, they do need to increase fares, then that sounds like a fair compromise; personally I’d much rather pay slightly more to ensure airlines are prepared for staff illness (a business as normal event, as the Supreme Court says), rather than have an unnecessary delay.

      • JDB says:
        11 Jul11 July 08:04

        @Kit Aspen – why do you want to hobble UK/EU airlines? They need to compete vs US, Asian, ME airlines.

        The current regulations are already a huge burden vs competitors in other countries that don’t have to pay out these huge, out of date, compensation sums.

        • BA Flyer IHG Stayer says:
          11 Jul11 July 08:15

          Whilst the amounts are fixed (and have been since 2024 so definitely out of date) they are no longer huge as they would be much larger if they had kept pace with inflation.

          • JDB says:
            11 Jul11 July 08:26

            @BA Flyer IHG Stayer – the sums are huge and totally disproportionate to current day air fares. The sums were fixed in 2004, but air fares, notably intra European ones have dropped dramatically over this period.

            It’s totally ridiculous to stiff Ryanair, an incredibly operationally efficient airlines, with say €400 pp compensation for flights to Portugal. Compensation of £2080 for a family of four travelling to the US suffering a 4h10 delay is utterly absurd. It forces an immense cost burden on to European airlines, then people wonder why carriers in other regions can afford to offer better services.

            It’s also quite wrong (as Ryanair shouts regularly) for airlines to be forced to pay huge sums on accommodation/food for the actions of third parties or indeed weather. That should be for insurers to bear. They of course lobby to tighten airline regulations!

          • BA Flyer IHG Stayer says:
            11 Jul11 July 08:56

            @JDB I definitly agree within you on your last point but the blame there likes with courts for inserting themselves into the depths of the regulation and for the EU Institutions not rewriting the regulation when they’ve had the chance to do.

        • Peter K says:
          11 Jul11 July 08:58

          That’s all easy for you to say @JDB out of a position of financial security, but to those who can only afford one holiday abroad every year or 3 then losing a day of holiday (flight and accommodation), or having the stress of finding somewhere to stay an extra night and paying for it from their own very limited funds, is a big deal. This is to protect the little people, not just those like yourself who can afford to fly first/business when they like.

          • JDB says:
            11 Jul11 July 09:26

            @Peter K – all laws should protect everyone including, as you rather disparagingly call them, the “little people” but the the compensation sums and ‘right to care’ provisions are already heavily weighted in favour of all passengers.

            I do find the approach of some people here towards the rules quite funny, e.g. those who say never take a refund, thereby assuming that everybody can afford to fund replacement tickets without that refund. I also find it rather grotesque to read here of presumably relative financially secure people encouraging others in similar positions to make sure they claim for the sandwich they bought following a delay.

        • Geoff says:
          11 Jul11 July 09:06

          It’s an easy problem to solve.

          They can sort their ops out so they don’t have delays which are within their control.

          Imagine a company providing the service they’re paid to provide!

          Imagine!

          • Geoff says:
            11 Jul11 July 09:21

            Hobble!

            BA made a profit of £1.4bn in 2023.

            How will those poor lambs survive

          • JDB says:
            11 Jul11 July 09:50

            @Geoff – your comment about airlines sorting out their operations so as never to have delays suggests a jaw dropping naivety about airline operations including strict safety standards.

            The comment re BA’s profitability is similarly ridiculous/out of context and from a base of zero understanding of business. You aren’t alone of course. What’s important is how much profit is ploughed back into the business for the future benefit of customers and long term health of the business vs how much is taken out.

            Also, in terms of context, it’s a golden period for airlines at the moment in terms of cash flow/profitability but that follows the Covid era which created losses and incurred huge debt and in the case of IAG calling on its shareholders for significant new equity funding.

            Profitability of airlines over extended periods is quite dire.

        • AJA says:
          11 Jul11 July 09:18

          @JDB I don’t want to hobble any airline in relation to others that have it easier or get huge subsidies from their governments.

          But I do want all airlines to treat me fairly and deliver the service I have paid them for.

          I think it is entirely reasonable for airlines to look after me in case of disruption.

          You mention insurance, we already do have travel insurance but that has so many get outs that in some cases you have to question its worth. But on the subject of insurance airlines already have insurance too. There’s public liability insurance for one (not that im saying that’sthe policy they’d claim on). Do you really think airlines pay accomodation costs themselves and aren’t claiming the cost back from their insurer?

          • JDB says:
            11 Jul11 July 09:34

            @AJA – yes, BA pays all these costs itself. Ryanair does also. I haven’t particularly checked with other airlines but I believe it would be very standard.

            As an accountant, you should look at just how expensive it is to operate an airline in Europe (and 261 is a part of this) vs other parts of the world and that’s before considering any direct or hidden subsidies or other advantages. Look at the green or noise compliance costs as well. Consider the competition European flag carriers have on intra European routes vs the US.

          • JDB says:
            11 Jul11 July 09:53

            @AJA – when you conduct your analysis, please take into account all the European flag carriers that have gone bust. Olympic, Swissair, SAS, Sabena etc.

          • AJA says:
            11 Jul11 July 10:47

            @JDB all of those airlines did indeed have state subsidies but the ending of the subsidies was not the only reason they failed. They all built up debts they couldn’t repay or in the case of Sabena, Swissair failing to inject funds as it promised it would, due to its own financial difficulties. But also all of them suffered from the downturn following the September 11th attacks in the USA. And in the cases of Swissair and Sabena both went bust several years before EC261/2004 came into existence.

        • r* says:
          11 Jul11 July 10:27

          Perhaps the regulations should be expanded to include non-eu carriers if they are landing in the eu.

        • ken says:
          11 Jul11 July 10:54

          The average Easyjet or Ryanair fare is higher now than 2004

          Any new entrants to the market will have been well aware of EU261 legislation.

          How exactly are Ryanair competing with Jetstar Asia ?
          Its a completely different market.
          You might as well moan that pay rates are different.

        • meta says:
          11 Jul11 July 12:25

          With caveat that those non-EU airlines are obliged to pay up for flying from EU. So theoretically they are liable 50% of time. It’s not like they don’t share the burden at all.

          • JDB says:
            11 Jul11 July 13:53

            @meta – your 50% figure assumes that all those various airlines operate exclusively to the UK/EU which obviously isn’t the case. EC261 costs European airlines €5bn/year, a huge disadvantage on top of all the others not faced by US/ME/Asian carriers.

          • meta says:
            11 Jul11 July 17:20

            @JDB but we are talking about passenger rights in EU/UK and they compete with non-EU airlines solely on EU/UK routes. This is because a ticket on say Qatar Airways from EU/UK with a stopover in Doha (on a single PNR) is still liable for EU/UK compensation based on a few ECJ rulings. So LHR-BKK direct with BA or LHR-DOH-BKK with QR is treated the same for EC/UK26.

            Do you have the figure how much non-EU airlines pay in compensation?

          • JDB says:
            11 Jul11 July 22:57

            @meta – I’m afraid I don’t have a comparable figure for non-EU airlines but even allowing for ex-Europe transfer traffic, the cost borne by other airlines is inevitably significantly lower and more widespread. For US airlines it’s a tiny number. For ME airlines a relatively significant number because of all their transfer traffic but still nowhere near the 50% and for Asian airlines very low.

          • meta says:
            12 Jul12 July 03:04

            @JDB but how can you be certain of something without complete information?

  • Mikel says:
    11 Jul11 July 08:50

    That’s a great result, massive. Can you imagine the amount of claims being rejected on the basis of “staff illness”. No wonder BA pushed it to the Supreme Court.

    • Rob says:
      11 Jul11 July 08:59

      In fairness, illness on a return flight could arguably be treated differently to outbound illness (where the airline deliberately cuts costs by not having enough standby crew at its base). Problem then would be an inbound cancellation due to the outbound being cancelled by illness …..

      • Richie says:
        11 Jul11 July 09:11

        But in this situation https://www.headforpoints.com/forums/topic/ba60-mle-lhr-rerouted-downgraded-and-delayed/ BA manage costs by not having a fourth pilot on the aircraft, a pilot was ill and the return sector was impacted.

      • Michael says:
        11 Jul11 July 19:51

        That’s a pretty simplistic view based on BA’s single hub operations with crew based only at the hub. Plenty of airlines have multiple hubs and multiple crew bases so which is the outbound and which is the inbound in those cases? Why should BA and other single base airlines get a bye-ball on their return legs when other airlines can be more flexible and move crews through their systems more effectively?

    • JDB says:
      11 Jul11 July 09:16

      @Mikel – this judgment has not changed the legal position, it has simply clarified the position as a matter of UK law whereas we had previously been relying on ECJ judgments which have determined that staff illness or even crew death at an outstation does not constitute ‘extraordinary circumstances’.

      • meta says:
        11 Jul11 July 12:31

        Indeed, BA wanted a ruling that would exempt them from parts of retained law putting them and other UK airlines at advantage compared to other EU airlines flying out of UK.

  • Thywillbedone says:
    11 Jul11 July 09:14

    “pilot and crew illness” …or in layman’s terms: ‘being hungover’

  • Peter K says:
    11 Jul11 July 09:44

    @JDB Any disparaging tone on the term ‘little people’ was all of your own making in your own mind. None of it came from my mind smh.

    On the converse, it’s interesting how you say about it’s ‘grotesque’ that someone advises another to claim something they may not have realised they could rightfully claim for events out of if their control, but then

    • executiveclubber says:
      11 Jul11 July 09:48

      Don’t worry Peter, I think anyone reading understood what you meant. I certainly agree with you

    • Peter K says:
      11 Jul11 July 09:48

      …say we should let the airlines get away without paying a simple flat fee that everyone understands.
      Who would win from a more complicated reparation system? It won’t be those on the lower end of the economic scale that need it most. The problem isn’t that we have the system here in the UK/EU, but that they don’t have it elsewhere. Why would you want to make it worse here rather than better elsewhere?

      This was a reply to the thread earlier, but it’s been posted out of synch.

  • Elt164 says:
    11 Jul11 July 10:01

    Delay of 3 hours recently because of air traffic control.
    I presumed not covered by any payment. Is this correct?

    But was too late for public transport from LHR and taxi was mighty expensive

    • TP Hunter says:
      11 Jul11 July 10:09

      No compensation but the ‘duty of care’ still exists so you can claim back reasonable food & non-alcoholic drinks costs during the delay (plus roaming costs for calls/texts, or in practice data nowadays if no airport WiFi).

      The Montreal Convention would have allowed you to claim back some consequential losses (such as the taxi) if the cause had been within the airline’s control, but of course here is was outside their control so they are not strictly liable.

      However, BA’s policy is generally to pay out for taxis or hotels if the last public transport is missed, as long as the amount isn’t excessive.

      • JDB says:
        11 Jul11 July 11:25

        @TP Hunter – you have made the most valuable comment so far today by mentioning the Montreal Convention that can be very valuable in addition to or when 261 might not apply. Anyone going to MCOL needs to consider the basis on which they are framing their claim and often should make it on both bases in the initial claim – you can’t add it later.

      • elt says:
        11 Jul11 July 19:46

        Thanks
        I’ll try for taxi fare

  • Chris B says:
    11 Jul11 July 10:06

    The whole EU261 (and UK equiv) is a scam and a shambles. The airlines simply claim, “not my job, someone else’s fault!” A pointless piece of legislation, that has more holes than Swiss cheese. If it had any teeth, it would be like the UK rail equivalent Delay Repay. i.e. the airline pays no matter what, and they sort it out with the airports and the third parties with whom they have contracts in the event of delays.

    • Thywillbedone says:
      11 Jul11 July 10:30

      Disagree. Works as long as long as you know your stuff and are relentless in your pursuit of them. You might argue that it shouldn’t have to be that way but that is the way of the world these days. Corporates know most people have limited stomach for a fight …

    • meta says:
      11 Jul11 July 12:34

      Some smaller airlines in EU countries do have automatic compensation system by sending you a link or email to provide bank details…

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