21. The CAA as well as licensing pilots and aircrew also determined the way in which British Midland and ether airlines operated their services. In particular this included limitation on flight times for pilots such as Captain Leslie. There was a document issued by the CAA called CAP371 which prohibited flying more than three “early starts" unless hotel accommodation was provided within fifteen minutes of the airport. This requirement was reflected in the terms of the AFS,
22. On 28 July 2000 British Midland produced a roster for Captain Leslie which set out his work programme between 12 August and 8 September 2000.
23. During the early part of that period Captain Leslie was scheduled as away from work due to holidays and other leave. He was to return to flying with effect from 29 August 2000. His work for that day and the following three days involved him flying aircraft between East Midlands Airport and Dublin. Frankfurt, Paris and
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Edinburgh. Captain Leslie saw this schedule by the weekend of the 26/27 August 2000 and formed the view that the schedule required him to fly four successive days of early starts. His interpretation of this depended upon his belief that the hotel at which British Midland arranged for him to stay overnight in Edinburgh was more than fifteen minutes travel time from the airport. It was common ground between the parties that if the airport was more than fifteen minutes travel time away from the airport then his schedule involved four consecutive early starts and was, therefore, not permissible under flight limitations imposed by the CAA and also the AFS.
24. Equally, it was common ground that if the hotel was within fifteen minutes travel time then his departure time of 0445 hours would not qualify as an early start in Edinburgh and the schedule was permissible.
25. The hotel used was originally served by dedicated transport to the airport. There had been no difficulty in travel time exceeding fifteen minutes with that dedicated transport However, the crews were later required to use a hotel bus service. This change in practice increased the travel time beyond fifteen minutes. For this reason Captain Leslie believed that he was rostered for four early starts which was not permissible according to the AFS arid CAA rules.
26. On 28 August, the day before he was due to fly the first shift of the roster, Captain Leslie sent an e-mail message to Karen Dawson In the Crewing Section of British Midland. This note was also copied to Jan Benson in the same section. He made the point in the e-m& that he viewed the roster as not complying with CAP37I and he asks that the legality be checked and “alleviate my worries.” He makes the valid point that “if we are ignoring the approved FTL (Flight Time Limitations) Agreement we could find considerable amounts of egg on our faces if we have an incident.” He refers to the CAA taking a serious view of it. The ‘point of ‘contact in relation to such issues was the Crewing Section as was confirmed in the evidence we heard as well as the written procedures.
27. Captain Leslie went into the airport at British Midland on 1 September 2001 making telephone calls to Crewing Section on the way and try to resolve matters without success. We ware told that an Operations Manager was available twenty-four hours a day. There is in the bundle an Operational Notice dated 29 August 2000 confirming this. However, the correct procedure as far as Captain Leslie was concerned was to report to the Crewing Section, which he did. He attended the airport on 1 September 2001 and refused to fly.
28. On 31 August 2000 he had left a written note to his line manager, Captain Lawrie in his pigeon hole at East Midlands Airport making the same point namely, that he would refuse to take the flight because it was an illegal roster and that he would file a safety report. The tone of the message, which is hand written, is measured and ostensibly reasonable. In addition, Captain Leslie sent messages to an internet site called “One List” the guidelines of which we read. This was operated for pilots at British Midland. They were the only people who had access to the site and could only gain access by registration.
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29. We read the messages sent to British Midland pilots on the One List saying that he was required to fly four early flights and pointing out that anybody on standby should “be prepared to be called out.” He makes reference to “Richard”, namely Richard Hills, as Senior Manager and asks that he does something about it if he is “still around”. He says that he is a tired pilot refusing to fly and that he would be filing an air safety report to British Midland and a flight Time Limitation violation report to the CAA. He says that he is trying to be reasonable with the Crewing Section but calls and messages were not being answered. He points out that he has spoken to the British Airline Pilots Association (BALPA) and the CAA and, in his view, British Midland was infringing the FTL rules. He raises issues about insurance both personally and in relation to the aeroplane if there is a violation of flight time limitations.
30. Captain Hills, although a Senior Manager at British Midland, had access to the One List site. Apart from this the “One List” site was considered to be a site where pilots could communicate and it was common to exchange banter between the pilots.
31. Prior to his refusal to take the flight on 1 September 2000 Captain Leslie had checked the position with BALPA and the CAA by telephone. in due course Captain Leslie did file an air safety report with British Midland complaining of the rostering duties being in breach of the approved FTL Scheme and including details. This was not actioned by British Midland at any time to Captain. Leslie’s knowledge. In total, he had contacted Crewing, spoken to a Mr Thomas at the CAA, Shaun McHugh at BALPA and sent e-mails to Karen Dawson and Jan Benson in Crewing. He also tried to contact Fraser Sharman, Crewing Supervisor but was only able to make contact with an answering machine.
32. On 1 September 2000, before his arrival at East Midlands Airport, Captain Leslie telephoned ahead to say he would not be flying the scheduled flight. However, on his arrival he was expected to fly as scheduled but Captain Leslie refused to do this. The result was that the flight was delayed whilst a standby pilot was transported from Birmingham Airport to East Midlands. This caused delays to the flight in question and elsewhere in the British Midland schedule.
33. On 4 September 2000 Captain Lawrie learned of Captain Leslie's refusal to take the flight on 1 September 2000. He had by then seen the letter left for him by Captain Leslie on 31 August 2000. He made enquiries of the Personnel Manager, Rhona Coe, who advised on 5 September 2001 that the correct procedure was to hold a meeting to determine the facts. Accordingly, the same
day, Captain Lawrie telephoned Captain Leslie and asked him to attend such a meeting on 7 September 2000. On 5 September 2000 it was agreed that Captain Leslie would remain “off programme” in other words he would carry out no flying duties from then on. He had between 1 September 2000 and 5 September 2000 been engaged in training duties. Being “off programme” was not a suspension although it was similar in that Captain Leslie was given full pay but not actually required to fulfill any duties,
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34. On 7 September 2000 Captain Leslie attended the meeting at British Midland headquarters with Captain Lawrie, Rhona Coe and Captain John Robertson, London Heathrow Base Manager. On his arrival he formed the opinion that what he had expected to be a chat to iron out difficulties was In fact a formal meeting. He formed this view because three people were there, one from Personnel and Mr Robertson from Heathrow. Captain Leslie said that the roster provided to him contravened CAP37I, the CAA regulation on light times. He said that was because an early bus from the hotel to the airport meant that he was expected to do four consecutive early flights. He said that he had raised his concerns with the Crewing team. Captain Lawrie asked If he was aware of the Code of Conduct which required a duty to be completed and, thereafter. the issue raised with the line manager. Captain Leslie said that this Code had not been agreed with him nor agreed with BALPA.
35. The Code of Conduct provides that if there is a disagreement over duty assignments then this should be raised with a line manager. A second opinion could be sought from line managers if disagreement remained. The Code of Conduct had been introduced to try and avoid disputes Interfering with service provision and also to avoid loss of good relations in the workplace.