Claimant v British Airways Plc

The tribunal found that the respondent failed to pay claimants in accordance with s.169 TULRCA when they took time off for trade union duties. The payments should have been calculated by reference to average hourly earnings (which included allowances like EHR, duty pay and short-haul payments) not just basic pay. The shortfall in pay constituted an unauthorised deduction from wages within s.27 ERA. Remedy to be assessed at a remedy hearing to determine average hourly earnings and whether there was a series of deductions.

The tribunal accepted that the underpayment was a detriment. However, the claim failed because the claimants did not prove the sole or main purpose of the underpayment was to prevent or deter them from trade union activities. The tribunal found the respondent genuinely believed they were complying with the negotiated Facilities Agreement and TULRCA, even though they were mistaken. There was a Facilities Agreement in place and the respondent had followed it. The tribunal did not infer that the delays in resolving collective grievances or the failure to implement the alleged 2019 agreement showed anti-union purpose.

Claim for breach of s.169 TULRCA (failure to pay for time off for trade union duties). Tribunal found respondent permitted claimants reasonable time off during working hours for trade union duties under s.168 TULRCA but failed to pay them at the rate required by s.169(3) — i.e. average hourly earnings for the work. Respondent paid only basic rate, not the average which would have included variable allowances. The amount due to be calculated at remedy hearing as insufficient evidence was available to determine average hourly earnings or identify appropriate comparator.