As the Wright brothers took the first powered flight in Dayton Ohio on 17 December 1903, few observers would have believed that within the space of decades, commercial airlines would operate hundreds of transatlantic flights a day for thousands of passengers.
Fast forward to 2020, and few would have believed that an international pandemic would bring a once burgeoning airline industry to its knees, with airports reduced to empty hangars and the skies quieted.
The restriction on flying is keenly felt by many holiday makers whose plans are stymied, and who face stonewalling by operators keen to retain funds. But what of the staff, ground crew, baggage handlers, stewards and airport planners? They face an uncertain future.
MPs were quick to brand British Airways a “national disgrace” for suggesting that it would dismiss its entire workforce. In a critical report, the Commons Transport Committee went so far as to accuse the airline of a “calculated attempt” to take advantage of the crisis to justify shedding 12,000 jobs, particularly when it might avail itself of the Coronavirus Job Retention Scheme until October 2020. On the other hand, some smaller operators have ceased trading altogether, whilst others have significantly reduced operations.
Are criticisms warranted, and what can the aerospace industry do to ameliorate the worst effects, whilst retaining staff? Certainly, if all else fails, then regrettably redundancies may be the only conceivable option to save a business, but there are alternatives, and Employment Tribunals will be alive to efforts employers take to avoid dismissals.
Indeed, employers proposing to dismiss as redundant 20 or more employees at one establishment, must adhere to the strict statutory requirement to consult with employee representatives about the proposals, including ways of avoiding the dismissals and reducing the numbers of employees to be dismissed.
The Coronavirus Job Retention Scheme presents a short-term reprieve, but from 1 July, the government is gradually phasing out the level of assistance offered under the scheme with cessation set for 31 October 2020. It remains to be seen whether Employment Tribunals will be critical of those employers who implement redundancies needlessly before the cut-off. It is quite conceivable that dismissed employees will cite lack of success in availing of the scheme for the entire period as evidence of unfairness and failure to consider ways of avoiding dismissals.
It will undoubtedly be a time for employers to dust off contracts of employment and policies to check whether, come 31 October, they can rely upon the right to lay-off staff or impose short-time working. Absent an express contractual provision, employers cannot generally imply the right to lay-off, because employees are entitled to be paid if they are ready, willing and able to work. With lay-off and short-time, the employer reserves the right not to pay staff, even if they are ready, willing and able to work.
Imposing reduced hours of work is another option, but rarely will a contract of employment give an employer the unfettered right to do this, except in the case of zero-hours, or casual contracts, where hours of work are not guaranteed. Employees could object to a unilateral reduction in hours, work under sufferance and claim unlawful deductions from wages. Of course, employers can agree variations to contractual terms with staff, and it is a brave employee in the current climate who will reject reasonable changes if the alternative is terminal.
There are also pay cuts or pay freezes. Again, an employer would be best to reach agreement with staff about such changes, before trying to impose them. Other options include considering whether there are workers and contractors whose contracts can be terminated without the risk of an unfair dismissal or redundancy payment claim, as well as looking to those staff with under two years’ continuous employment first in any collective process.
It is fair to say, however, that such measures offer only a short-term reprieve, and bar paying the workforce to sit at home, which is likely to be financially ruinous, the need for mass redundancies among front-line airline staff is almost inevitable. If an employer is proposing to dismiss as redundant 20 or more employees at one establishment within a period of 90 days, then it must consult with elected representatives for 30 days before the first of the dismissals takes effect. That obligation increases to 45 days in cases involving 100 or more employees. Failure to comply gives rise to protective awards of up to 90 days’ pay per employee.
Once airline traffic goes back to pre-Covid levels, it is open to an employer to re-employ those employees but there is no automatic obligation to do so. Provided there is a clear week (Sunday to Sunday) between the date of dismissal and re-engagement, then there is no continuity of employment. Effectively, the employment starts again.
Finally, it is important to remember staff wellbeing for those who remain furloughed and face an uncertain future. The Flight Safety Foundation has published an article on Aviation Professionals Guidance to Wellbeing which outlines the core pillars of mental health. Employers should be mindful of the long-term impact on staff and remain sensitive throughout redundancy consultations if business does not take off in the coming months.
It is difficult to overstate the effect that Covid-19 has had on the aerospace industry with border closures, strict social distancing guidelines and the risks of transmission presented by commercial air travel. Reading the trade press and bearing in mind a predicted slow recovery to pre-Covid levels over the next five years, the numbers affected could be high. Whilst 9/11 only had a temporary impact on the North American aviation market, global forecasts predict that Covid-19 will have a more lasting effect worldwide, limiting growth through 2022.
