In August, research by the BBC revealed that air passengers using London Gatwick face the most flight delays in the UK. On average, passengers experienced delays of 18 minutes per flight. Consumer group Which? found that of one million flights, nearly half didn’t arrive on time, and more than 10,000 were delayed by more than three hours.
If your employee is one of the unlucky passengers in limbo at the airport, can you claim for the inconvenience?
FairFX spoke to Flight Delay Lawyer at Bott & Co Solicitors Kevin Clarke, and employment law specialist at Ramsdens Solicitors, Gareth Dando about how employers can protect their bottom line in the face of frequent business travel delays.
Read me the rights.
Regulation EU 261/2004 is the flight delay compensation law which can award up to €600 depending on the distance flown by the passenger and the length of the delay. Airlines will accept claims for a delay in excess of three hours long.
What destinations are covered by EU 261/2004?
The regulation covers any direct flight from the UK and applies to destinations within the EU and Switzerland. The employee is covered if:
- departing from an EU airport and operated by any airline, or;
- arriving at an EU airport and operated by an EU airline.
How much do delayed passengers receive in compensation?
There’s a scale that determines what compensation a passenger will receive, Kevin explains: “If your employee is travelling fewer than 1,500km but was delayed beyond three hours, the value of the compensation is likely to be €250. If they’re travelling beyond 3,500km and were delayed for four hours and above, they could claim the full amount of €600.”
As an employer bankrolling business travel, does the regulation protect my investment?
If the passenger is a business traveller and their company paid for the ticket, the company is not eligible to apply for compensation.
But we lose out…?
Not if you’re prepared, according to Gareth Dando: “Under EU Regulation 261/2004, the claimant is always the individual air passenger. They have the right to compensation as they are the one who suffered any delay and inconvenience. Compensation cannot be paid directly to an employer even if they paid for the flight.
“However, it is possible for the employer to insert a clause in any employment contract requiring an employee to claim under EU Regulation 261/2004 for any delayed flight and if successful, to hand over any compensation to the employer. This is likely to be seen as both a lawful and reasonable instruction of the employer and therefore any refusal to obey it by the employee could result in disciplinary action.”
Should I pay my employee’s expenses when a business flight is delayed?
What if the airline doesn’t look after my employee?
Airline negligence is unlikely, says Kevin: “Even in the most extreme circumstances, for instance when the entire airspace closes, the airline is obliged to pay your expenses. There will never be a situation where that duty can be lawfully avoided. Ryanair tried to argue the case for an expenses cap following the Icelandic volcano eruption in 2010 but in 2013, the European Court of Justice ruled airlines must cover the costs of meals, hotels and transport without cap.”
Is my employee always eligible for compensation?
“The employee will be awarded compensation if the delay inconvenienced them [or] time was lost due to a cancelled or delayed flight.” says Kevin. “The passenger is also covered if they’re stopped from boarding the flight because it’s over booked, or if the passage is downgraded,” he adds.
Could their claim be rejected?
If they meet the criteria above, no. However, the claim can be rejected if the delay was caused by extraordinary circumstances. For instance, compensation claims are never pursued in instances of terror attacks, security risks, or severe weather such as fog.
What are the exemptions to ‘extraordinary circumstances’?
“If the airline is destined for a ski destination and snow is cited as an ‘extraordinary circumstance,’ a claim can still be pursued because the airline could reasonably have anticipated snow.” Many rejected claims with ‘extraordinary circumstances’ have been overturned, so if you have been delayed in excess of three hours, it’s worth investigating.”
What about flights outside of the EU?
If the employee is flying with a non-EU airline, any claims, compensation and duty of care depends on its individual terms and conditions, although these are informed by recommendations from the Air Transport Association. You can claim under the Montreal Convention for refreshments, but you may not retrieve hotel or transport costs.