JUDGE SLATER IN THE CASE AGAINST THOMAS COOK AIRLINES STATED
‘The limits on flight time and not flying when fatigued are clearly matters related to safety which, if breached, are potentially harmful to the health and safety of passengers and crew.’
TO CLARIFY THE UK CAA’S VIEW ON A DUTY THAT I REFUSED TO DO DUE TO MY BELIEF IT WAS ALMOST 1HR IN BREACH OF THE LEGAL MAXIMUM, I SENT THE FOLLOWING LETTER WITH A SIMPLE QUESTION, WHICH YOU WILL NOTE THEY REFUSE TO ANSWER.
THOMAS COOKS CHIEF PILOT AND DIRECTOR OF FLIGHT OPERATIONS CONSIDERED THE CORRECT SANCTION FOR MY REFUSING, WHAT I CONSIDERED TO BE AN ILLEGAL DUTY WAS DISMISSAL.
The following letter was written to the CAA ;
Dear Mr Bishton,
You may recall that you last contacted me on 4th Dec 2015 with an email entitled ‘Final Correspondence on FTL matters.’ Whilst in your previous email you suggested that this was the final correspondence, you may now be aware that I have recently successfully won my employment tribunal case against Thomas Cook Airlines Limited. I continue to be an employee.
Thomas Cook Airlines have now publicly stated they ‘accept the findings of the tribunal.’
As ‘Findings of Fact,’ the Tribunal stated:
‘We find that he genuinely held a view that he could not legally exercise discretion if the event which would lead to the maximum FDP to be exceeded was something known to the operator by the time the flight plan given to the Commander on the day of the flight was produced.’
The Tribunal raised a question at the centre of the dispute that they were not required to answer. The CAA, however, is so required [I am the claimant, Thomas Cook the Respondent]:
In relation to the ANO and EU. Ops 2.2 at 6th May 2014;
‘The respondent argues that it is only the plan produced prior to the day, which appears on the pilot’s roster, that must comply with the maximum FDP. The respondent argues that, if there are different circumstances on the day from those assumed in the planning process prior to the day, the maximum permitted FDP could be exceeded by exercise of the Commander’s discretion. The respondent says itwould be lawful in these circumstances for the Commander to exercise discretion, even before the flight starts, to exceed the maximum FDP. Whilst this difference in view lies at the heart of this case, the Tribunal does not consider it necessary to determine whether the view argued for by the claimant or that taken by the respondent is a correct interpretation of the relevant regulations and guidance.’
Therefore, my direct question to the CAA is, as the legislation stood on 6th May 2014, Is the requirement for an Operator to ‘ensure’ the ‘Flight Duty Period’ (FDP) conforms with E.U.Ops 2.2 (ANO)
It is clear, as was evidenced at Tribunal, there appears to be confusion as to when is the requirement for an operator to ‘ensure’ ‘that for all its flights. Flights are planned to be completed within the allowable flying duty period taking into account the time necessary for pre-flight duties, the flight and turn-around times.’
I would be grateful for a written answer to my question by no later than close of business on 24th Feb 2017.
The CAA’s Response from their ‘Legal Advisor’ was
‘We will not offer an interpritation of a matter of academic interest”
There has been no reply to the following email sent in return
Dear Ms. Slater,
Thank you for your response.
To remove any doubt or misunderstanding, this is very much not an ‘academic interest’ question it is in fact, very much, a ‘flight safety question’ and I require a definitive answer to my question in order to be able to comply with my legal responsibility as an ATPL holder and Commander.
To put it bluntly, I require the ‘authority’ to answer the question that relates to flight safety.
If you are still in any doubt as to the matter being of a flight safety issue to protect the travelling public, the “Finding of Fact’ from an Independent Tribunal stated ‘The limits on flight time and not flying when fatigued are clearly matters related to safety which, if breached, are potentially harmful to the health and safety of passengers and crew.’
Therefore in order to comply with the law, I need to know what the law is. i.e. I need to know if a duty I am provided with is compliant with the law, the only way I will know that is if the CAA answer my question.
Please inform if you, on behalf of the CAA intend to answer the question. If I have no reply in seven days I will assume the CAA have declined to answer a Flight Safety question and will deal with that failure accordingly.
Release date: 13/12/2016
An airline captain and member of the British Airline Pilots’ Association has accepted an apology from an airline after being sanctioned for refusing to fly due to fatigue, as well as assurances that the company remains committed to passenger safety.
Captain Mike Simkins was suspended by Thomas Cook Airlines for six months and threatened with dismissal after refusing to fly his Boeing 767 with over 200 passengers due to being fatigued. Captain Simkins took the case to an Employment Tribunal which unanimously found in his favour and against the airline.
Simkins took the difficult decision not to fly after three extremely early starts in a row, including one 18-hour day, and what would have been a 19-hour day to follow. Thomas Cook’s own fatigue monitoring software showed that because of the run of duties he had done, if he had flown his rostered flight he would have landed at th
e end of his duty with a predicted performance loss that would have been similar to being four times over the legal alcohol limit for flying.
Dr Rob Hunter, BALPA’s Head of Flight Safety, said. “Not only is it reasonable to refuse to fly when fatigued, it is absolutely necessary. In fact, the law states that a pilot must not operate when fatigued, or likely to become fatigued. Captain Simkins should have been praised by Thomas Cook for reporting his fatigued state as required by law, not disciplined.
“Fatigue is a major threat to flight safety and a good, open safety culture is vital in ensuring that pilots and other staff members feel able to report fatigued and not put lives at stake.”
Brian Strutton, BALPA General Secretary, also commented. He said, “Captain Simkins should be commended for taking this matter up and seeing it through to its conclusion. I am also ple
ased that BALPA helped fund Captain Simkins’ legal battles, and provided substantial expert and staff support.
“Tackling fatigue remains BALPA’s number one flight safety priority and we will continue to work with airlines to do that where we can, and challenge them using any means necessary when we can’t.”