Airlines facing potential avalanche of flight delay claims following staff sickness ruling
Gary NoakesThe Supreme Court has ruled airline staff sickness doesn’t constitute an “extraordinary circumstance”, opening the door for passengers to claim compensation in the event of a flight delay or cancellation owing to any absence of crew through illness. Gary Noakes reports.
Judges have left airlines with little room for manoeuvre to avoid paying passengers compensation when staff fall sick following a defeat for British Airways in the Supreme Court.
BA’s loss could have potentially significant repercussions for airlines throughout UK and Europe when flights are cancelled or delayed due to staff illness.
The airline had fought a 2018 case all the way to the Supreme Court, arguing staff sickness amounted to "extraordinary circumstances" under EU261 compensation rules and that this was a get-out clause for airlines during disruption.
However, a panel of judges disagreed, stating: “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.”
The judges added it was “irrelevant” whether staff fell ill on or off-duty because “their attendance or non-attendance for work is an inherent part of the carrier’s operating system”.
The ruling gives airlines no wiggle room in future, as the judges added EU261 was designed to be a simple scheme for consumers, stating: “Requiring an enquiry into why, when and how a staff member became ill would be contrary to the intended operation of the scheme.”
EU261 is among a raft of EU legislation retained in the UK following Brexit, although the Department for Transport has consulted on a UK government-led replacement.
The original case dates back to 2018 when two BA passengers flying from Milan’s Linate airport to London City airport were delayed by two-and-a-half hours. Their flight was cancelled because the pilot did not report for work due to illness and passengers were moved to a later flight.
The passengers, a Mr and Mrs Lipton, claimed €250 from BA Cityflyer under EU261 compensation rules. Cityflyer refused to pay, citing extraordinary circumstances and the claim was dismissed by Portsmouth County Court and on appeal. The Liptons appealed to the Court of Appeal, which upheld the claim.
Cityflyer then went to the Supreme Court, where judges unanimously ruled against the airline. BA had argued last-minute illness was outside its control and therefore counted as extraordinary circumstances, particularly where it had occurred at a foreign airport.
BA said: “We are disappointed with this decision and respect the judgment of the court.”
‘Important step forward’
Law firm Bott and Co said it had “more than 1,000 clients” with claims of this nature, “many of whom have been waiting over five years for this outcome”.
“The Supreme Court’s decision paves the way for these passengers to finally receive the compensation they are entitled to,” it said.
Coby Benson, a solicitor at Bott and Co, added: "This decision is an important step forward in protecting air passengers’ rights. Our clients have been incredibly patient, and we are thrilled that justice has been served.
"Airlines must now take their responsibilities seriously and ensure they are adequately staffed to avoid such disruptions, and if such disruptions occur, compensate passengers appropriately."
Rocio Concha, director of policy and advocacy at consumer champion Which?, described the ruling as “highly significant”.
"Due to a lack of clarity in the rules, airlines have too often been able to pass off events travellers might consider ‘business as usual’ as extraordinary circumstances, and in so doing avoid paying compensation to passengers under EC261,” she said.
Concha called for more powers for the CAA to enforce rules. "Even when consumers’ entitlement to compensation is clear, we too often hear of passengers struggling to get the money they are owed," she continued.
"It is therefore imperative the government prioritises giving the Civil Aviation Authority stronger powers, including direct fining powers, so it can properly hold airlines to account when they fail to comply with consumer protection laws."
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