TUPE generally applies where a going concern moves from one owner to another, for example a contract passes from one office cleaning outfit to another. Those managing the decline of Fly BMI temporarily lost sight of the TUPE ball; effectively they cocked up.

The transfer of aircraft and crews between BMI and Loganair, while not exactly seamless, too place over a short period of time. The fact that TUPE was engaged was down to the particular set of facts prevailing in that case. I suspect that the Tribunal Judge, who sat alone, found it a fairly marginal decision. One might wonder how the cookie would have crumbled if the Judge had sat with wingmen from (a) employer and (b) union/workforce backgrounds.

By the time FlyBe 2 starts it will be pretty much two years since FlyBe 1 ceased operations. There's not a snowball's chance of that being seen as a TUPE transfer.

So Flybe is the same airline when it comes to slots, but not when it comes to TUPE?

I think at the very least there is a question worth asking

You can bang the drum as often as you like, and though I stand four square behind your sentiments, there is not a snowballs chance in hell of getting TUPE terms in this situation are Airbanda and Bean have also pointed out. Believe me, I have seen the same thing happen in many different industrial and commercial sectors over the last few years. Commercial aviation is not in some way different.

Not a TUPE in my view given the length of the break in employment but I’m not a lawyer. I won’t be asking the question.

I’m guessing the carriers flying at the moment planned for a pretty crap winter with few passengers but it could be terrible.
Families not flying to be together over Xmas due to fear of the new variant and possible working from home being introduced.

It’s great for Flybe to still be safe in the harbour out of the storm as Chris Hope put it.

Either by happy accident, or design, services aren't said to be starting until March or thereabouts. Had they kicked off in November then I think the venture could have turned out to be very short-lived.

I don't think there is a time limit on a TUPE claim - a quick google suggests the period of protection byTUPE is indefinite.

Anyway, it's an interesting discussion which will probably never be tested in a court.

Let's see if a claim is made. If so will it be brought via Balpa or one of the cabin crew unions?

The name on AOC 2470 was changed from Thyme Opco Ltd to Flybe Ltd on December 1st. Would they have had to wait a certain period of time (in this case just under six months) from the revocation of the 'original' one?

No idea why BALPA would choose to fund a case with a questionable chance of winning a case for a few who have willingly choosen to work under these T&C's. I'm a plus 1 on TUPE being a non starter in law in this case. .. it would be hard to argue any sort of relevant employment after a 2 year gap...

TUPE applies to a take over. I work for company Y, company Z takes over my company or the contract that I am employed for. Having negotiated a TUPE transfer in the past, I just do not see how this law can apply?

I'm not sure that's correct. I work in the Rail industry and have been TUPE'd several times. But one time when the company was bought rather than a new company take over the Franchise TUPE didn't apply. It's more like Company A loses the contract and company B takes over using the staff from Company A.

Loganair didn't take over bmi Regional, but the ruling was that TUPE applied. There are a number of similarities between the two cases (and of course a number of differences!)

TUPE
 

Can someone explain how TUPE applies in this case? On the 5 Mar 20, Flybe (Mk1), went into administration and I, and many others, lost our jobs, were left financially out of pocket and have either found other jobs or retired. A few lucky ones were kept on by the Administrators to help wind the thing up and some of them have transferred over to the “new” Flybe.

Now Flybe Mk2 are starting up, people are being “recruited”, on reduced salaries and different Terms and Conditions. Although highly improbable, it is entirely possible that Dash 8 qualified people from elsewhere could be among them. I say improbable because they have all the training records and will recruit exactly who they want; can you blame them?

So how can you say that this is a case of an old failing company being taken over, when we know that the whole thing is a bit of a “smoke and mirrors” exercise to get what they want, who they want and on the terms they’re prepared to offer?

It all seems like a new startup to me with the management in possession of a few “titbits” from the past.

Busterhot. You are completely correct. This TUPE business has been going around in relentless circles since early summer 2020

I've no idea if TUPE does apply in this case but the judgement posted above from the Loganair / BMI case does have a few similarities about transfers of business.

If i was a betting man I would say it doesn't apply in this situation as I think a major difference between this set up and Loganair / BMI is there appears to have been a transfer of some parts of BMI's business pre administration.

I am sure the new board and owner would have been very careful to ensure that there was a solid legal firewall between the two companies. The administrators will have been aware of this in their attempts to sell assets and the pension scheme lawyers (with the pension regulator looking over their shoulder) will also have been looking closely at the legal frameworks. The fact that BE2.0 seem to be comfortable with taking on former employees is also a sign that they have the TUPE issue well and truly tied down. I am sure BALPA will have drawn similar conclusions and at the end of the day with resources stretched, would the membership be happy in blowing a huge amount of union cash at a possibly very weak case?

Well done biddedout. The whole thing has become boring, monotnous and stupi

I’m not taking a position either way but all these posts that of course management have thought of everything are a bit presumptuous.

If managers and businesses were always able to think of everything they wouldn’t encounter problems or collapse.

Legal issues are often open to interpretation also. One set of lawyers may say you have no case while another will fight it and win.

BA are one of the biggest carriers around and have still made massive cock ups which have resulted in legal rulings against them or large settlements.

The only way we’ll know is if a case is brought. Until then we might as well move on.

Completely disagree.

Silly
If a case is brought they'll just fold the company. How simple is that?

And it is very unlikely that BALPA will want to bring such a case. Given the circumstances, if Flybe does take on a number of former employees and those people mange to get airborne again with type ratings re-validated, BALPA wouldn't be doing anyone a favour by launching action which would only jeopardise the whole thing. Also, not all those new start will be members an in the unlikely event that they did win, it wouldn't be very smart for non fee-paying members to gain from a potentially very risky action. I am sure BALPA will come knocking on the door for recognition in good time but they are not daft enough to risk the launch of something which might just bring a glimmer of hope to the UK pilot employment scene.

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You don't know that. We've been consistently told the backers have deep pockets and are in it for the long haul so they can't argue people being paid what they could be legally entitled to might bring them down. It's not as though former Flybe pilots from the old airline were on astronomic salaries anyway!

And I'm not advocating a case being brought, just discussing the merits of whether their might potentially be one.

I think there's a lot of decent points made here.

All this talk and still they only have one aircraft on fleet!

It was always said that TUPE didn't apply in an insolvency situation and to be fair, I suspect Loganair probably had all of the advice in the world and arguments as to why it didn't apply, but lost that fight nevertheless. You have a lot of similarities between the two cases and the only indisputable difference I can see is the passage of time between Flybe 1 and Flybe 2. That might make enough of a difference all on its own versus the Logan/bmi case about whether there's a case that could be brought here and whether it may fail or succeed.

And when it comes to BALPA, there could be two reasons why they may go for it. First would be to support members who are either not in a job or in a job which pays significantly less than they had at Flybe 1. Second could be to support members who have got job offers at Flybe 2 but on significantly inferior T&Cs to Flybe 1 (as is rumoured to be the case) although that certainly would be biting the hand that feeds, so less likely. Parallels with Loganair again by the looks of it.

In other words, I don't think any of us can be certain until or unless this is put to the test in a tribunal. Until that point, even a legal opinion is just that - an opinion. Will be interesting to see if this aspect of the debate dies quietly or is rumbling along in the background.

"One set of lawyers may say you have no case while another will fight it"

And no lawyer will ever tell that you don't have a chance - they make their money by fighting cases - they don't care how they turn out as long as they get paid

I totally agree with whoever has put a post saying "all this talk and they only have one aircraft"

But why would they have multiple aircraft at this stage, since they have no plans to begin operations until the Spring. It's perhaps as well that "armchair CEOs" don't run businesses!!

Surely at the moment it would be unwise for them to financially burden themselves with lease/operating costs on aircraft that they don't need yet, other than a few to carry out training etc.

So why aren't they selling tickets?

I can see a very good argument for deferring a big route launch announcement to the first or second week of January (depending of course on the C word) when the UK is back in work mode

BA have already made an announcement for there route network from LGW tickets have already gone up for sale..... what is flybe 2 waiting for ?? There is also the question of where will they fly to as out if there 46 routes 42 have been taken🤷‍♀️and some of those by ba citiflyer and easyjet. With the article in the telegraph business section about wanting to sell the business I would be getting cold feet if I had a job offer from.them.

BA at Gatwick are largely targetting people who want to go on a beach holiday, particularly over the summer. Peak booking period for this begins immediately after Xmas.

Flybe in its previous incarnation had a significant dependency on corporate travel. Corporate travel is likely to see minimal new bookings before about 05 January. Furthermore, UK domestic routes like BHX-Scotland on a prop are not going to attract hordes of beach-seekers booking 6 months in advance - think shorter periods between booking and travel

The new Flybe have just one chance to get media publicity for the initial set of routes; that needs to be timed to be of maximum use, not at a time when potential (corporate) customers are not paying attention and likely to forget the publicity info by the time they need to make reservations

IMHO, Flybe should stay quiet until early or mid Jan, and then go for a maximal publicity boost

I am probably totally wrong but for some reason the whole Flybe2 exercise just doesn't sit right and as mentioned above, media reports suggesting a sale even before a launch doesn't bode well in my book, of course time will tell. Corporate travel will most likely never return to previous levels and Flybe2 cannot rely on this for future growth and profitability, which therefore highlights the need for a robust UK and EU leisure route network. However, many airlines are now competing in this market and so it could become a race to the bottom for many and you can only assume this is Flybe's intention to undercut and ultimately remove other carriers, this however will not enhance their bottom line on any balance sheet. Regional France may be attractive for them using a 78 seater prop and other cities like Dusseldorf and Paris that have performed well in the past could be looked at again. I wish them well but still to be convinced on their viability long term!

Only time will tell....I just hope folk who have been offered jobs are not stung again with job losses. The whole industry is up in the air once again and its dog eat dog for both the domestic and European market .

I think the opposite, I’d rather be the debt free new comers like Flybe v2 and Emerald rather than the airlines who have had to weather the storm.
I think news will come thick and fast in the new year.

There is not enough information available at this stage to make any sort of rational decision in this regard. The incumbents have a natural advantage of being established in their respective markets albeit they may have taken on additional debt. The long term effects of this are difficult to gauge without knowing what financing costs and fare inflation might look like in the medium to long term.

Newcomers face issues regarding brand awareness and marketing costs. Emerald have an advantage here from the perspective of piggybacking IAG’s network and distribution channels. Flybe will obviously need to spend a lot on marketing but most people will still understand the brand. Flybe employees will have zero worries as long as the initial investors are prepared to underwrite the costs of the operation which will be significant. After several seasons of operation the investors will hopefully have a proof of concept which will then allow them to raise further funding to accelerate growth. I would be very surprised if the initial investors will be prepared to directly fund growth beyond the second year - the most likely good outcome would be growth funded by a mixture of operational profit and taking on debt, at which point flybe will be in a similar position to the incumbents. Airlines are too capital intensive to set up without taking on debt.

This is crystal ball territory but I am sure everyone wishes flybe and its new employees every success.

Not sure about that part………..

It's not a "brand new airline". Flybe themselve are using the notion of a returning airline, they're technically and legally new but that's not how they see themselves or how the market will percieve them. Even Norwegian had the decency to use a new brand in "Norse Atlantic" as their new offering, no relation, honest, same people, same model, same chance of shareholder pain.

I've always thought they should have changed the name.... the name flybe has too much bad history ie flymaybe, then people will remember it was one of the airlines that went bust!! I know all this rebranding comes at a cost but they should have considered it.