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.

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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. Read more of Jennifer's articles here.

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