Loganair lose out in legal battle with pilots over FlyBMI collapse

The airline, which is owned by the same parent company as FlyBMI, took staff on under new contracts, but pilots' union BALPA claimed that the transfer should have been covered by TUPE regulations which protect important employment rights.

The union launched an employment tribunal against the airline, claiming it failed in its duty to consult with union representatives under TUPE legislation.

The tribunal has now found in favour of the union on the preliminary issue of whether or not the move was a TUPE transfer, however Loganair has confirmed it plans to appeal the decision.

In a written judgment on the case, employment judge Susan Walker stated: "Having considered all the factors, I am persuaded that there was a relevant transfer of the business of [FlyBMI]. 

"Loganair acquired nearly all the planes and a significant majority of the pilots who previously operated [FlyBMI's] activities. The planes and pilots continued to fly scheduled and some contracted routes. The activity is essentially the same."

The hearing heard evidence that FlyBMI suffered financial difficulties throughout 2018 and by February 2019 it became clear that the position was "precarious".

On Saturday, February 16, Jonathan Hinkles, the managing director of Loganair, received a call from a FlyBMI director advising him that the company would cease trading at 5pm that day.

The following day it was agreed that Loganair would take over the leases on FlyBMI aircraft and the former airline filed for administration.

BALPA national officer Michael Brade told how he received a call from Mr Hinkles shortly after.

He claimed the Loganair boss told him he was looking to recruit pilots and had put together a recruitment pack.

Mr Brade said: "I remember I asked Jonathan if Loganair considered that TUPE would apply to pilots joining Loganair. When I asked him this, he made it very clear to me that he did not consider TUPE would apply. 

"He said something to the effect that I should be grateful that Loganair would be offering jobs to BALPA members at all."

Former FlyBMI pilot Chris Dick, who did not receive a job with Loganair, told the tribunal that pilots were transferred over to Loganair very quickly and put to work using their FlyBMI uniforms and airside ID cards.

Mr Dick, who had to move from Bristol to Edinburgh to get a new job with Ryanair, said: "I was extremely frustrated by what happened. I consider that [FlyBMI's] business passed to Loganair and that I along with the other FlyBMI employees should have transferred to Loganair by way of TUPE transfer."

Another pilot, Gregory McKay, added that the collapse of FlyBMI placed him in an "extremely difficult position" as his wife was pregnant at the time and he did not manage to get another job for four months.

Mr Hinkles told the tribunal that despite having the same parent company, Loganair and FlyBMI "operated completely independently".

However, Judge Walker stated that "the reality is that there was a close connection between [FlyBMI], Loganair, and Airline Investments ltd (the parent company)".

She added: "Mr Hinkles was aware... that [FlyBMI] was on the brink of collapse. He took steps to ensure Loganair was ready to offer employment to the pilots. 

"Before that offer was made, it was agreed that Loganair would have access to the majority of [FlyBMI's] aircraft. Steps were taken to transfer airport slots and planes to Loganair and to acquire as many of the pilots as possible. These steps, in my view, amount to a series of transactions that together amounted to a transfer."

A spokesman for Loganair said: "Loganair has appealed the judgement. We believe that there are substantive areas in which the law has not been applied correctly to the facts of the case and that we have very strong grounds on which to base the appeal. This was lodged with the Tribunal last week and we have no clear timescales as to when next steps may take place."