Old Dec 1, 17, 1:37 pm
  #1727  
Tyzap
 
Join Date: Jan 2017
Posts: 66
Originally Posted by Tim_T View Post
Received notification today from CEDR.
Not unexpectedly, I lost at CEDR for flight cancellation due to MF cabin crew strike.
Reasons given are below. I don't agree with it, especially point 10 which is not true. I also don't understand points 9 and 12, why cancelling 4 days in advance is reasonable grounds for denying EC261 since there is no requirement for this point in the regs other than within 2 weeks. I believe CEDR has ignored most of my evidence and sided strongly with BA. I'm not surprised to be honest.

I hope this helps others.
Tim_T


7. In view of the above, I find that the airline was not directly in control of the industrial action by its Mixed Fleet Cabin Crew nor was the strike action inherent in the normal activity of the airline and qualifies as an extraordinary circumstance.

Decision

● The passengerís claim does not succeed.
Hi Tim_T,

I believe that the adjudicators decision is based on a number misunderstandings of the regulation. However, there is one very basic error at point 7 (above) on which alone, BA's defence should have been dismissed by the adjudicator.

The adjudicator says that strike action by BA staff is not 'inherent' in the operation of an airline. For 'airline' you could read company or business, any company or business.
In other words strike action by BA's own staff is an external, third party matter for which BA have no responsibility and it is completely outside of their control. In the real world is this realistic? Almost certainly not IMHO.
BA management were actively involved in negotiation with the union, they were actively making alternative arrangements to circumvent and lessen the effects of the problem. Every company, where staff go on strike, do their best to settle the matter, which by it's very nature, makes that action an inherent part of running any business. If it's an inherent part of running a business it cannot be an extraordinary circumstance and compensation should have been paid.

The adjudicator also made a number of other basic mistakes, for example at point 4.

4. I am mindful of the Civil Aviation Authorityís non-binding list of the types of incident that may qualify as extraordinary circumstances inclusive of industrial relations issues. Industrial relations issues are described as strikes that affect the operation of an air carrier. For example strikes by airport staff, ground handlers, or air traffic control. Given that the CAA is the National Enforcement Body (NEB) for Regulation 261, I find it is reasonable to attach weight to its opinions in this matter.

The adjudicator has become confused by the role of the CAA and the role of the European Court of Justice. It's is the ECJ who create the law and the CAA who are responsible for ensuring adherence of that law, on behalf of the British Government.

The none binding NEB list, which is referred to, was dismissed by the Court of Appeal in the Huzar v Jet2.com case who rightly said it carried no legal authority. The adjudicator should also have not attached any weight to this work of fiction.

I could go on, but there is really no point. MCOL is still available to you as is the NWNF route.
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