British Airways Plc v De Mello & Ors

British Airways Plc v De Mello & Ors

The tribunal erred in its approach to meal allowances by misapplying the burden of proof and failing to assess the overall factual matrix; it also erred in excluding commission from normal pay based on a deterrent effect test, and in its approach to Back-to-Back allowance for Mr Ardabili. The tribunal further erred in holding that a gap of more than three months breaks a series of deductions and that the employer could designate the order of statutory and contractual leave. The appeals on both sides are allowed and the issues are remitted for fresh determination.

Parties
Appellant/respondent: British Airways plc; Respondent/appellant: Ms T De Mello; Respondent/appellant: Mr E Ardabili; Respondent/appellant: Ms D O’Dwyer; Respondent/appellant: Mr V Texeira; Respondent/appellant: Mr A Duffy; Respondent/appellant: Mrs O Kerr
Jurisdiction
England and Wales
Judgment Date
19 April 2024
Procedural Posture
Employment Appeal / Appeal Judgment
Outcome
Appeals allowed on both sides; matter remitted for fresh determination before a different judge.
Legal Topics
Holiday Pay, Normal Remuneration, Unlawful Deduction From Wages, Working Time, Allowances, Series of Deductions, Time Limits
Employment Law Holiday Pay Normal Remuneration Unlawful Deduction From Wages Working Time Allowances Series of Deductions Time Limits

Case Brief

Summary, issues, holding and outcome

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Parties

British Airways plc

Appellant/respondent

Ms T De Mello

Respondent/appellant

Mr E Ardabili

Respondent/appellant

Ms D O’Dwyer

Respondent/appellant

Mr V Texeira

Respondent/appellant

Mr A Duffy

Respondent/appellant

Mrs O Kerr

Respondent/appellant

Procedural Posture

Employment Appeal / Appeal Judgment

Legal Issues

  1. 1 Whether meal allowances should be included in statutory holiday pay as normal remuneration
  2. 2 Whether commission on duty free sales forms part of normal pay for holiday pay purposes
  3. 3 Whether Back-to-Back allowance forms part of normal pay for Mr Ardabili for the relevant year

Ratio Decidendi

The tribunal erred in its approach to meal allowances by misapplying the burden of proof and failing to assess the overall factual matrix; it also erred in excluding commission from normal pay based on a deterrent effect test, and in its approach to Back-to-Back allowance for Mr Ardabili. The tribunal further erred in holding that a gap of more than three months breaks a series of deductions and that the employer could designate the order of statutory and contractual leave. The appeals on both sides are allowed and the issues are remitted for fresh determination.

Court Disposition

Appeals allowed on both sides; matter remitted for fresh determination before a different judge.

Orders

  • Remission to a different employment judge for fresh determination of whether meal allowances, commission, and Back-to-Back allowance form part of normal pay, and time limit issues.
  • All leave days to be treated as part of a composite whole with no designation between statutory and contractual leave.