Bott and Co has proven the airline’s position to be incorrect hundreds of times but unfortunately – due to the lack of any binding case law on crew sickness claims – airlines are still telling passengers they aren’t entitled to compensation.
Is Crew Sickness an Extraordinary Circumstance? No, it is not.
Is Crew Sickness an Extraordinary Circumstance?
No, it is not. The defence of ‘extraordinary circumstances’ is only applicable when a flight delay is caused by something that:
a. Stems from an event which is NOT ‘inherent’ to the activity of the airline and;
b. Could not be avoided even if all reasonable measures had been taken
By saying that crew sickness is an extraordinary circumstance, airlines are essentially arguing that a member of staff falling ill is not part and parcel of running an airline. This argument does not stand up to scrutiny; it is inevitable that employees will fall ill at some point. Unexpected staff illness is inherent in any business that employs human beings for that very reason.
Many industries put measures in place to avoid disruption when employees call in sick. For example, schools have substitute teachers on-hand throughout the year to make sure classes can continue when permanent teachers are unable to work.
The school would not shut down if a member of staff called in sick, but airlines are effectively arguing that it is acceptable for them to do the equivalent.
If an industry requires specially trained staff to be present, it stands to reason that they should have measures in place to ensure that replacement staff members are available when something goes wrong.
Can I claim flight delay compensation for all delays caused by crew illness?
There is one exception where crew sickness could be considered extraordinary: if your plane is diverted due to a cabin crew member falling ill mid-flight. What would not be extraordinary however, would be any subsequent flights that are delayed because of the diversion.
“The airline told me it had taken ‘all reasonable measures’ to avoid my flight delay”
For safety reasons, airlines require their staff to be in perfect health when working on-board an aircraft – the legal explanation of this is that it is a ‘higher barrier’ of fitness. That means there’s even more chance that a cabin crew member will be unable to work due to mild illness than someone who works in an office for example.
British Airways has relief staff stationed at London City, London Gatwick and London Heathrow, indicating that they are very much aware of the possibility that their staff may fall ill and that this is inherent in the running of the airline.
However, the airline does not have extra cabin crew on standby at any other airports across the globe.
Airlines argue that having relief staff at airports would not be ‘commercially viable’, but as District Judge Beck ruled in the case of Davies v British Airways if they choose to run their business in this manner then they must accept the financial consequences when their staff inevitably fall ill.
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Can I claim flight delay compensation for Pilot Sickness?
As with other airline staff, if the flight is delayed because of pilot sickness then that flight would be eligible for compensation as long as the delay lasts more than 3 hours. Just because it’s the pilot, doesn’t change the flight delay compensation regulations.
The exception to this rule, as explained above, is if the pilot was taken ill on the flight, causing an emergency landing or diversion. This could be considered an extraordinary circumstance, but subsequent flights delayed as a result would be claimable for flight delay compensation.
Can I claim flight delay compensation caused by crew running out of hours?
Airline crew can only work a certain number of hours before they have to rest for safety reasons.
Sometimes a short delay to a flight means that the crew will end up going over their allotted hours in their shift if they work on the delayed flight, and so the delay is extended to factor in waiting for a new crew to arrive.
If this happens then the flight may be eligible for flight delay compensation based on crew exceeding their hours. It is something that the courts say the airline should factor into their operating processes.
Bott and Co recovers compensation for flight delays caused by crew sickness
We’ve recovered compensation for hundreds of passengers delayed by crew sickness, including Mr and Mrs Davies in the case of Davies v British Airways in May 2015.
In this case District Judge Beck went into depth about inherency and reasonable measures when it comes to crew sickness, saying:
It is an inescapable fact that, on a day-to-day basis, members of staff become ill and some are taken ill at extremely inconvenient times.
The Judge added that if an airline chooses not to pay for relief staff at airports it should expect to pay compensation when staff fall ill:
In short, Judge Beck ruled that:
1.) Crew sickness is inherent in the normal running of an air carrier and therefore cannot be classed as an extraordinary circumstance
2.) British Airways could not prove that it had taken ‘all reasonable measures’ to avoid the delay and should accept the consequences by paying the passengers compensation
If the Defendant does choose to operate with the bare minimum of staff, I think they must also build into their thinking the risk they may have to pay passengers compensation under the Article, if as in this case, the Defendant is caught out by a member of staff being taken ill.
“The CAA said I can’t claim compensation for crew sickness”
But that doesn’t mean you can’t.
Airlines often use the CAA’s list of extraordinary circumstances to defend crew sickness claims but it’s important to remember that the list, commonly referred to as the ‘NEB List of Extraordinary Circumstances’, is not legally binding and has been proven incorrect in court numerous times.
“The airline refused to pay me compensation because of Marchbanks v Virgin Atlantic”
If you’ve tried to claim direct from the airline, you may find that you’re told that you’re not entitled to compensation because of a ruling in the case of Marchbanks v Virgin Atlantic Airways.
Airlines say that this is an important case because Virgin won, proving that crew sickness is an extraordinary circumstance. What airlines do not talk about is the fact that the passengers DID receive flight delay compensation in this case.
Marchbanks was a litigant in person (meaning a person who represented themselves in court without the help of a lawyer) who lost the court case against Virgin. Bott and Co had clients who were on the same flight as Marchbanks, so we requested permission to appeal the decision.
When Virgin found out that Bott and Co had become involved and had been granted permission to appeal, the airline paid Marchbanks compensation and withdrew the case, making it impossible for the appeal hearing to take place. This means that the court case airlines are quoting when refusing compensation, is actually a case where passengers received compensation.
What should I do if an airline rejects my crew sickness delay claim?
If an airline rejects your claim by quoting the CAA’s list of extraordinary circumstances, Marchbanks v Virgin, or any other flight delay case, it’s always best to seek a second opinion. You can find out if you have a valid claim in minutes using our flight delay compensation claims calculator, or you can call the Bott and Co Flight Delay Team for free, impartial advice on how to start your claim.
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