Airline Pilots’ Association v - Barrister Loganair Limited — 2020

This was a preliminary issue under the Transfer of Undertakings (Protection of Employment) Regulations 2006 arising from BMIR's administration. The tribunal rejected the case that there had been a carefully choreographed transfer beginning in 2018, accepting that BMIR was in financial difficulty and that Loganair had undertaken contingency planning, but finding that the earlier transactions involving aircraft, stock, engineering resources and training were explained by the companies' relationship and BMIR's need for support rather than by a pre-planned transfer scheme.

Applying the multifactorial approach in Cheesman and Spijkers, the tribunal held that the whole of BMIR's business was an economic entity and that it transferred to Loganair when BMIR went into administration. It found that the business was a scheduled airline operation involving aircraft, pilots, other staff, bases and routes, and that Loganair had acquired the practical ability to continue that business by taking over most of the leased aircraft, a substantial majority of the UK-based pilots, some other staff, level 3 airport slots, the Aberdeen hangar, iPads, and certain contracts including Airbus and Eastern Airways. The tribunal accepted that not all routes, bookings, customers or European operations transferred, but held that the activities before and after were broadly similar and that the business retained its identity.

The tribunal fixed the transfer date as 17 February 2019, when the majority of the aircraft were transferred and offers of employment were made to pilots. It said that the business had been integrated into Loganair, but that this did not prevent a relevant transfer. The tribunal did not decide the time bar issue or the contingent individual claims at this hearing, and indicated that further procedure would be required, including consideration of remedy if the claims proceeded.