Does a cabin crew strike relieve British Airways from its EU261 obligation?


Lawrence Karp’s flight home from London should have been a routine end to his overseas trip. But when British Airways canceled his flight, he took off on a quest for compensation that led to a frustrating dispute with the airline.

British Airways claims that the delay was the result of a strike, for which it owes Karp no compensation because this delay was an “extraordinary circumstance” under the European Union consumer protection law EU 261.

The term “extraordinary circumstances” is not clearly defined in EU 261. Our advocates have been seeing an uptick in cases of cancellations and delays on airlines subject to this law involving denials of compensation, including in situations that we consider questionable. Karp’s case appears to us to be such a situation.

Karp was scheduled to fly from London to Philadelphia. After British Airways canceled his flight, it rebooked him on an American Airlines flight to Newark, N.J., which departed many hours later.

When Karp finally arrived home, he filed a claim with British Airways for compensation under EU 261, which British Airways denied. The airline responded to Karp that the delay was caused by an “industrial action.”

This explanation didn’t make sense to Karp. He asked British Airways for clarification and received the following reply:

As my colleague has explained, the flight was canceled because of industrial action taken by some of our crew. I understand why you would expect to receive compensation in these circumstances, but I regret to confirm that this is not payable.

Article 5 (3) of EC Regulation 261/2004, dated 11 February 2004, provides that compensation is not payable in circumstances where the carrier can prove that a delay or cancellation was caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken. Recital 14 of the Regulation specifically includes strikes that affect the operation of an operating air carrier as an “extraordinary circumstance.”

At a National Enforcement Body meeting, a non-exhaustive list of extraordinary circumstances was compiled. Item 28 on this list states:

Industrial Relations Issues: Strikes that affect the operation of an air carrier. For example strikes undertaken by Air Traffic Control.

The strikes that occurred … were beyond British Airways’ control and not inherent in the normal exercise of the activity of the air carrier. Such circumstances, by their very nature, did “affect the operation of an air carrier” and would therefore fall within the “extraordinary circumstances” exclusion …


As British Airways could not be sure which permanent cabin crew members would choose to strike, managers had to establish what would be a realistic and achievable timetable to operate. It was inevitable that we would not be able to operate our full summer schedule for [that day]. …

Regrettably, your flight had to be canceled during the strike action … Our automated system found the next best option for you to be American Airlines flight [number], from London Heathrow to Miami to depart at 12:15. From here, you would have been able to take American Airlines flight [number] to Philadelphia where you would have arrived at 22:59 local time. However, following a telephone call, we amended the booking to allow you to travel to Newark on British Airways flight [number] instead. I’m pleased to see we were still able to offer Club World seats. …

Please be aware that the Regulation only provides for a fixed measure of compensation to be paid. There is no right to claim for further compensation.

While compensation is not payable, I would be happy to assess a claim for any refreshments you purchased while waiting for your later departure from London. I’m also able to consider the cost of telephone calls made by yourself and each of your traveling companions during your wait.

However, our advocates noted that this explanation of the course of events on the day of Karp’s flight was incorrect. The example given in the explanation refers to strikes by employees of outside agencies, such as air traffic controllers. But the strikes that caused Karp’s flight to be canceled were the result of British Airways’ own personnel refusing to work, which was within British Airways’ control.

We advised Karp to file a complaint for wrongful denial of compensation under EU 261 with the Civil Aviation Authority of the United Kingdom. (Executive contact information for British Airways is available on our website.) We also invited him to discuss his situation in our forums, although he hasn’t done so as of this writing.

Unfortunately, while the term “extraordinary circumstances” in EU 261 remains loosely defined, the rise in the number of cases we’ve been seeing where this was used to deny compensation suggests that many situations in which it is being applied are not, in fact, “beyond the control” of airlines and that they are using it inappropriately to exempt themselves from compensation to passengers who should receive it. We believe that the European Union needs to clarify which circumstances are actually covered under this provision of EU 261 and to hold airlines subject to this provision accountable when they fail to compensate passengers in situations that are not, in fact, “extraordinary circumstances.”

Should strikes by an airline's own employees be considered an "extraordinary circumstance" exempting airlines subject to EU 261 from compensating passengers on delayed or canceled flights?

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Jennifer Finger

Jennifer is the founder of KeenReader, an Internet-based freelance editing operation, as well as a certified public accountant. She is a senior writer for Elliott.org.

  • Bill___A

    Interesting interpretation where they quote that a strike by an external entity, such as air traffic control – is a reason for denial and use that to state that an action by their own employees is the same. It isn’t, the whole basis of excluding the air traffic control strikes is that it is beyond their control. Not the same with employees.

  • disqus_00YDCZxqDV

    Unfortunately with the UK you do tend to have to plan your activities around the frequent transport strikes, especially on the the trains.

  • SirWIred

    I’m definitely with the passenger here: A strike by ATC or airport staff (not employed by BA), sure! I’d say that’s not BA’s fault. But they are totally responsible for their own crew.

  • RichardII

    While I am a strong union supporter, I still voted yes. Just because the union want something doesn’t mean BA should be forced to give in to them. Requiring payment under the terms of EU261 in the case of labor actions would unfairly side with unions over management.

  • As a rule, unions don’t go on strike until negotiations break down. They don’t want to risk lost wages of their members.
    BA had other options, and at that point had not exhausted reasonable actions. Therefore they shouldn’t be using an escape clause. Things were still under their control.

  • RichardII

    For a full out strike, this is true, an de the strike must be voted on by the union members. But, there are also wildcat strikes and short term “job actions” and things like work to rule actions that will affect operations.

  • Michael__K

    If The Civil Aviation Authority complaint doesn’t result in compensation (they don’t have the power to force an airline to issue compensation to an individual passenger) then the passenger has nothing to lose by pursuing their claim through one of the for-profit companies which litigates these claims for a commission taken out of the compensation.

    Some of the companies out there include:
    RefundMe (http://www.refund.me)
    AirHelp (http://www.getairhelp.com)
    EUclaim (http://www.euclaim.co.uk/)
    GreenClaim (http://www.greenclaim.com)
    Claimair (http://claimair.com/)
    WeClaim (http://www.weclaim.com/)
    Bott&Co (http://www.bottonline.co.uk/)

  • justanotherguy

    Not buying BA’s story, or Richard’s excuses for BA. This is entirely within BA’s control- and yes, it gives the union more leverage, but let’s be honest- giant corporations have plenty of leverage too.

  • Lindabator

    you get so little its ridiculous

  • Michael__K

    600 EUR – 29.75% (25%+VAT) = 421.50 EUR = ~$496

  • Annie M

    We need this in the U.S. But the airline lobby would never allow it. I hope he comes back and updates you on whether he was reimbursed.

  • Lindabator

    not after they take their fees

  • Michael__K

    Typical fee is 25%+VAT. I.e. 29.75% of 600 EUR in this case.

  • Alan Gore

    Are there court rulings we can consult on the distinction?

  • Mark

    > Striking is considered a sport in Europe, like pickpocketing.

    I take it you haven’t spent much time in Europe then?

  • e santhin

    Labor strikes in Europe, especially Italy and Great Britain truely are like a sport. Where else does a union strike for two hours or four hours. I once was informed by British Airways that I missed my flight from New York to London when I arrived at check in almost three hours before the scheduled flight time. When I questioned how that could be possible I was informed the flight left early to avoid a two hour strike at Heathrow Airport. I was placed on a later flight that arrived at Heathrow four hours later without incident.

    I have also been inconvenienced by similar strange strikes in Italy often of short duration. One time all the gas stations in Rome went on strike for several days but just outside Rome on the main highways gas stations remained open with business as usual.

  • cscasi

    “Should strikes by an airline’s own employees be considered an “extraordinary circumstance” exempting airlines subject to EU 261 from compensating passengers on delayed or canceled flights?”
    I see this as a fairly hard question to answer because it is extraordinary for the airline company when a group or groups of its unionized employees decide to hold a strike – something the airline cannot control. It can go to court and ask that the strikers be forced to return to work, but that can take days or more to accomplish and by then the the strike has accomplished what it was intended to do.
    Further, when several hundred cabin crew or pilots, or both strike, where is the company supposed to draw qualified flight attendants and pilots to fill in for those on strike? All these require special training, currency of training, etc. These extra hundreds of employees do not grow on trees and there is only so much an airline company can do to try to deal with strikes. That’s a major tool in the playbook of the unions. So, the only other option the airline has is to capitulate to the unions if negotiations fail or face strikes.
    I guess a good alternative is for the airlines or airlines to keep raising fares so they can pay their unionized employees ever more to keep them happy and then put up with the customers complaining about the ever increasing fares. So, what’s it to be?
    As for the answer to the question asked,what has the courts of the European decided concerning strikes by airline employees causing cancellation and/or delays of flights and how those are considered under EU 261? Certainly this has already been brought before them.

  • Maxwell Smart

    this is nuts. The statement made above is not correct.

    “British Airways’ own personnel refusing to work, which was within British Airways’ control.”
    BA cannot control when their unions go on strike.
    Eu 261 is a disaster for everyone. Some airline some day soon, is going to take off, when aircraft is not quite airworthy, crash & kill all onboard.
    The scenario will go something like this …
    1. LAME(licensed aircraft maintenance engineer) to an airline “manager”
    “Part needs to be fixed/replaced”
    2. Manager to LAME
    if this flight delayed, this airline might not take off ever again(with the inference that LAME will lose his job & with airlines going belly up everywhere, unlikely to find another job in aviation).
    Might not happen in USA, as due to all the mergers, the big boys are quite strong.

  • Maxwell Smart

    so BA can hold a gun to head of employees & say work or get sacked ? Please.

  • Maxwell Smart

    UK is not USA. Not everyone has a gun !!!

  • Maxwell Smart

    many unions strike all the time, as they still get paid, which is nuts.

  • Maxwell Smart

    how is it in BA’s control ? Lots of lefties in UK unions, who just want to reak havoc.

  • Maxwell Smart

    & so we go down the road of USA with ambulance chasers everywhere. Ever wonder why public medicine is free in UK & Australia & the standard of medical care is as good if not better than in USA !!!
    I vote to start shooting the lawyers.

  • Maxwell Smart

    no you don’t. No airline wants to delay anyone. Start putting pressure on airlines to take off in a short time period & guess where that will end up ?

  • SirWIred

    Huh?

  • Michael__K

    So how is it that Europe has lower airfares than North America if these “ambulance chasers” are what drive the prices?

    BTW, US health care costs more than health care anywhere else in the world because drug companies and hospitals are free to charge whatever they can and they routinely charge 5x or 10x what is standard for the identical pill or service in other countries. The highest estimates of the cost of medical malpractice lawsuits, which factor in the costs of so-called “defensive medicine”, peg the total at 2.4% of overall US healthcare costs. Yet US per-capita health care spending is 36% higher than the next closest country (Switzerland) and 114% higher than Australia and 136% higher than the UK.

  • Doctor Now

    What is the difference between an issue with one employees not working, than one of their aircraft not able to fly due to a maintenance issue?

  • justanotherguy

    The union has demands. BA can decide to meet those demands, or not. If they meet them, there are fairly obvious costs. If they don’t meet them, there are also costs- one of which is compensation for displaced passengers.

  • LonnieC

    Yay! Finally a rational defense of malpractice attorneys. (And watch how fast anyone injured by the health care industry runs for a lawyer…)

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