Compensation & the COVID excuse

oleoleoleole

Was going to Majorca a few weeks ago with Jet2, they cancelled the original flight going out and provided another at a different airport. We ended up being delayed 3 1/2 hours. Coming back, we had a 5 hour delay before the flight was cancelled. They provided an overnight accommodation for everyone, it was 11 hours before we managed to get in a bed. The next day, we arrived at the Palms with only an hours delay.

Jet2 are saying “ in line with the advice from the UK Civil Aviation Authority, delays and/or cancellations arising from circumstances relating to COVID-19 will be treated as extraordinary circumstances and therefore not eligible for compensation under Regulation EC261/2004.” and it’s not payable. Yet, the pilot and staff at the gate told everyone the flight was cancelled because they were delayed getting away from Amsterdam and ran out of flight hours. I cannot understand how they can claim it’s COVID related delays when we have been told different? 

Any advice on whether they can do this?

eskbanker

oleoleoleole said:

Jet2 are saying “ in line with the advice from the UK Civil Aviation Authority, delays and/or cancellations arising from circumstances relating to COVID-19 will be treated as extraordinary circumstances and therefore not eligible for compensation under Regulation EC261/2004.” and it’s not payable. Yet, the pilot and staff at the gate told everyone the flight was cancelled because they were delayed getting away from Amsterdam and ran out of flight hours. I cannot understand how they can claim it’s COVID related delays when we have been told different?

You haven't necessarily been told different - running out of flight hours because of delays are effectively symptoms rather than the root cause, which could ultimately be Covid-related, if, for example, key staff tested positive and had to be replaced at short notice.  Trouble is, it's difficult to establish the truth, as there isn't any readily accessible public data about such delays and so you are dependent on the airline's explanation, although there's nothing to stop you pushing them for clarification about exactly how they determine it to be Covid-related.

Even if it is Covid-related, I'm not sure that that guidance issued in the midst of the pandemic still applies, so it's not clear that this is the universal trump card that Jet2 apparently perceive it to be....

CKhalvashi

eskbanker said:

oleoleoleole said:

Jet2 are saying “ in line with the advice from the UK Civil Aviation Authority, delays and/or cancellations arising from circumstances relating to COVID-19 will be treated as extraordinary circumstances and therefore not eligible for compensation under Regulation EC261/2004.” and it’s not payable. Yet, the pilot and staff at the gate told everyone the flight was cancelled because they were delayed getting away from Amsterdam and ran out of flight hours. I cannot understand how they can claim it’s COVID related delays when we have been told different?

You haven't necessarily been told different - running out of flight hours because of delays are effectively symptoms rather than the root cause, which could ultimately be Covid-related, if, for example, key staff tested positive and had to be replaced at short notice.  Trouble is, it's difficult to establish the truth, as there isn't any readily accessible public data about such delays and so you are dependent on the airline's explanation, although there's nothing to stop you pushing them for clarification about exactly how they determine it to be Covid-related.

Even if it is Covid-related, I'm not sure that that guidance issued in the midst of the pandemic still applies, so it's not clear that this is the universal trump card that Jet2 apparently perceive it to be....

The other problem (for airlines) is that they're stretching schedules anyway.

Flight crew are limited to 100 flight hours (which isn't the same as 100 work hours) in a month, or 900 in a year, however a single re-routing or operational mishap on some routes next month can potentially cause a knock on effect for that crew for the next 4-5 days in extreme circumstances.

Depending on the exact circumstances, this may or may not be compensationable, however while there is some redundancy in the system, airlines don't and can't reasonably be expected to have unlimited crews ready (anything over 5-6% would be considered fully in line with normal operational requirements and therefore would likely reasonably fall within government guidance, so if 50% of crew call in sick, I can see a court deeming this an extraordinary circumstance). At least 1 airline is aiming for as close to 0 further cancellations as possible in July and August, so this is likely the same across the board.

Please note that my post is not specifically referring to Jet2, but probably applies to them.

eskbanker

CKhalvashi said:

eskbanker said:

oleoleoleole said:

Jet2 are saying “ in line with the advice from the UK Civil Aviation Authority, delays and/or cancellations arising from circumstances relating to COVID-19 will be treated as extraordinary circumstances and therefore not eligible for compensation under Regulation EC261/2004.” and it’s not payable. Yet, the pilot and staff at the gate told everyone the flight was cancelled because they were delayed getting away from Amsterdam and ran out of flight hours. I cannot understand how they can claim it’s COVID related delays when we have been told different?

You haven't necessarily been told different - running out of flight hours because of delays are effectively symptoms rather than the root cause, which could ultimately be Covid-related, if, for example, key staff tested positive and had to be replaced at short notice.  Trouble is, it's difficult to establish the truth, as there isn't any readily accessible public data about such delays and so you are dependent on the airline's explanation, although there's nothing to stop you pushing them for clarification about exactly how they determine it to be Covid-related.

Even if it is Covid-related, I'm not sure that that guidance issued in the midst of the pandemic still applies, so it's not clear that this is the universal trump card that Jet2 apparently perceive it to be....

The other problem (for airlines) is that they're stretching schedules anyway.

Flight crew are limited to 100 flight hours (which isn't the same as 100 work hours) in a month, or 900 in a year, however a single re-routing or operational mishap on some routes next month can potentially cause a knock on effect for that crew for the next 4-5 days in extreme circumstances.

Depending on the exact circumstances, this may or may not be compensationable, however while there is some redundancy in the system, airlines don't and can't reasonably be expected to have unlimited crews ready (anything over 5-6% would be considered fully in line with normal operational requirements and therefore would likely reasonably fall within government guidance, so if 50% of crew call in sick, I can see a court deeming this an extraordinary circumstance). At least 1 airline is aiming for as close to 0 further cancellations as possible in July and August, so this is likely the same across the board.

Please note that my post is not specifically referring to Jet2, but probably applies to them.

While you're undoubtedly right that airlines can't reasonably be expected to have infinite staff available, there is obviously an expectation that they publish schedules that correspond to their ability to resource them (which inevitably entails some assumptions, given lead times).

I've just gone looking for information about any potential unwinding of the catch-all Covid exclusion that the EU issued early in the pandemic (the CAA's relaying of which Jet2 appeared to be relying on here) and see that the CAA's current guidance does seem to suggest that staffing levels aren't now generally considered to be extraordinary circumstances, so if flight delays or cancellations are caused by reduced staff availability (Covid-related or not), then in itself that doesn't exempt the airline from paying compensation, in the opinion of the CAA:

We recognise that the current operating environment is impacting airlines’ operations. We consider that the following circumstances would be viewed as extraordinary circumstances and therefore the fixed sum compensation would, in our view, not be payable:

• Where the Government advises against all travel, or all but essential travel, to a destination; or
• For cancellations or long delays impacted by Covid-19 in other circumstances that are not inherent in the operation of the airline and beyond its control. Such circumstances could include those where there is no Government advice against travel, but where disruption has been directly caused by activities of regulatory authorities or other third parties related to Covid-19, for example closing airspace to the airline, seriously restricting the airline’s operations in other ways, or where the corresponding movement of persons is not entirely prohibited, but limited to persons benefitting from exemptions (for example nationals or residents of the state concerned).

We do not, however, consider that all circumstances which may be related to Covid-19 will necessarily be extraordinary circumstances, for example where those circumstances could be considered inherent in the operation of an airline.  Examples of such circumstances may include managing staffing levels and absences.

This is quoted from https://www.caa.co.uk/commercial-industry/airlines/guidance-on-consumer-law-for-airlines/, which has been changed to include the bolded wording at some point after March of this year....

CKhalvashi

I think we're agreeing here Esk in that as long as the absences are reasonable (and that there's not for example a major outbreak in a single airline affecting crew at multiple bases, which is unlikely anyway) that this is likely to be the problem of the airline.

I believe that a judgement in favour of Ryanair several years ago stated that when around 50% of crew are calling in sick on the same day (which was not formal industrial action and never was declared as such, but happened to be just before the airline recognised unions) that the airline should be covered and that the circumstances were outside the control of FR. I will try to dig this out if you need, as it did make some interesting reading at the time.

eskbanker

I had a quick look for that Ryanair case but, in (unsuccessfully) doing so, came across another one that's perhaps more pertinent here, namely Lipton v BA City Flyer (on appeal in 2021), which is actually cited at https://www.moneysavingexpert.com/news/2022/05/flight-cancelled-delayed-tui-easyjet/

If your flight was cancelled within 14 days of departure, and it's the airline's fault for the cancellation, you may also be due compensation on top of the above.

Bott and Co – a law firm specialising in flight delay and cancellation claims – said staff sickness, including Covid-related sickness, and strikes by the airline crew are NOT reasons for airlines to avoid paying compensation.

Coby Benson, a solicitor at Bott and Co, told us: "Most staffing issues, for instance relating to crew sickness or staff on strike, are not extraordinary circumstances and the airline should therefore pay out for these."

But if you're struggling to get compensation, Benson said affected passengers should cite the cases of Litpon v BA City Flyer (Court of Appeal) or Krüsemann and others v TUIfly GmbH (Court of Justice of the European Union) to back up their claims.

In the Litpon case, it was ruled that "staff illness, and the need to accommodate such illness on a daily basis, is a commonplace for any business. It is a mundane fact of commercial life: it is in no way out of the ordinary".

Meanwhile, the Krüsemann judgment ruled that wildcat strikes – those not officially organised by a trade union – are also subject to compensation. Note that industrial action by air traffic controllers, airport staff and ground handlers is, however, considered extraordinary, meaning compensation would not be due.

https://www.judiciary.uk/wp-content/uploads/2021/04/Lipton-v-BA-City-Flyer-judgment.pdf is the official version, but, as you say, there is likely to be a matter of degree involved, so yes, a massive company-wide outbreak would likely be treated differently from individual illnesses.

OP - if you follow my suggestion of pushing the airline for more specific detail about the exact circumstances and how they justify their resultant stance, it would be welcome if you'd share them on here....

withaspritz

I'm in similar situation, fully expecting Jet2 to decline my claim for delays over 3 hours, on the basis of COVID absence. I have already bookmarked the CAA complaint form (PACT) since they don't have an ADR scheme.  Quite looking forward to the battle tbh!

CKhalvashi

withaspritz said:

I'm in similar situation, fully expecting Jet2 to decline my claim for delays over 3 hours, on the basis of COVID absence. I have already bookmarked the CAA complaint form (PACT) since they don't have an ADR scheme.  Quite looking forward to the battle tbh!

That on its own will not work under the latest guidance.

If they can show that they have exhausted (reasonably) a minimum of 2 standby crews at that base/block of bases and there was no way to position either an aircraft with crew or just a crew in to operate the flights, then the airline has not reasonably done everything they can to ensure the flight goes ahead. Even that argument may or may not work for them, but there is no case law to back this up in these circumstances yet. Eskbanker has put a link above that will likely help you.

Don't be put off, but make sure you ask for further information, some of which J2 may not be willing to give you.

withaspritz

CKhalvashi said:

withaspritz said:

I'm in similar situation, fully expecting Jet2 to decline my claim for delays over 3 hours, on the basis of COVID absence. I have already bookmarked the CAA complaint form (PACT) since they don't have an ADR scheme.  Quite looking forward to the battle tbh!

That on its own will not work under the latest guidance.

If they can show that they have exhausted (reasonably) a minimum of 2 standby crews at that base/block of bases and there was no way to position either an aircraft with crew or just a crew in to operate the flights, then the airline has not reasonably done everything they can to ensure the flight goes ahead. Even that argument may or may not work for them, but there is no case law to back this up in these circumstances yet. Eskbanker has put a link above that will likely help you.

Don't be put off, but make sure you ask for further information, some of which J2 may not be willing to give you.

They texted me prior to the flight to let me know about the delay, saying the excuse was "due to late arrival of inbound aircraft"... that's direct from Jet2. However, when we did finally board, the pilot tannoyed a further reason being COVID absence of ground crews at the previous airport, causing knock on delays for our aircraft's inbound flight. I think that's their attempt at quelling any interest in making a claim

CKhalvashi

withaspritz said:

CKhalvashi said:

withaspritz said:

I'm in similar situation, fully expecting Jet2 to decline my claim for delays over 3 hours, on the basis of COVID absence. I have already bookmarked the CAA complaint form (PACT) since they don't have an ADR scheme.  Quite looking forward to the battle tbh!

That on its own will not work under the latest guidance.

If they can show that they have exhausted (reasonably) a minimum of 2 standby crews at that base/block of bases and there was no way to position either an aircraft with crew or just a crew in to operate the flights, then the airline has not reasonably done everything they can to ensure the flight goes ahead. Even that argument may or may not work for them, but there is no case law to back this up in these circumstances yet. Eskbanker has put a link above that will likely help you.

Don't be put off, but make sure you ask for further information, some of which J2 may not be willing to give you.

They texted me prior to the flight to let me know about the delay, saying the excuse was "due to late arrival of inbound aircraft"... that's direct from Jet2. However, when we did finally board, the pilot tannoyed a further reason being COVID absence of ground crews at the previous airport, causing knock on delays for our aircraft's inbound flight. I think that's their attempt at quelling any interest in making a claim

Do you know where the arrival airport was?

I'm happy to look at whether they provide their own handling there (J2 self-handle more than most) to let you know whose fault this is more likely to be.

withaspritz

CKhalvashi said:

withaspritz said:

CKhalvashi said:

withaspritz said:

I'm in similar situation, fully expecting Jet2 to decline my claim for delays over 3 hours, on the basis of COVID absence. I have already bookmarked the CAA complaint form (PACT) since they don't have an ADR scheme.  Quite looking forward to the battle tbh!

That on its own will not work under the latest guidance.

If they can show that they have exhausted (reasonably) a minimum of 2 standby crews at that base/block of bases and there was no way to position either an aircraft with crew or just a crew in to operate the flights, then the airline has not reasonably done everything they can to ensure the flight goes ahead. Even that argument may or may not work for them, but there is no case law to back this up in these circumstances yet. Eskbanker has put a link above that will likely help you.

Don't be put off, but make sure you ask for further information, some of which J2 may not be willing to give you.

They texted me prior to the flight to let me know about the delay, saying the excuse was "due to late arrival of inbound aircraft"... that's direct from Jet2. However, when we did finally board, the pilot tannoyed a further reason being COVID absence of ground crews at the previous airport, causing knock on delays for our aircraft's inbound flight. I think that's their attempt at quelling any interest in making a claim

Do you know where the arrival airport was?

I'm happy to look at whether they provide their own handling there (J2 self-handle more than most) to let you know whose fault this is more likely to be.

Thank you so much! Yes it came from Bristol, apparently (Bristol > Gran Can > Bristol)

my flight was LS1854 on the 23rd June (there's another thread with my letter for me to keep updated as my claim progresses)