In short: Crew illness – even sudden illness or death shortly before departure – crew shortages and "sick-outs" are not extraordinary circumstances. If they caused a cancellation at short notice or a delay of 3 hours or more at arrival, you can usually claim €250–€600 (EU261) or £220–£520 (UK261). Crew running out of hours depends on what caused the earlier delay. Shortages of staff employed by the airport are different and can be extraordinary.
Is it extraordinary? Staffing causes compared
| Cause | Extraordinary? | Authority |
|---|---|---|
| Pilot or cabin crew member falls ill before the flight, no replacement | No | Lipton v BA City Flyer [2021] EWCA Civ 454; C-156/22 TAP |
| Unexpected death of a crew member shortly before departure | No | C-156/22 TAP |
| General crew shortage, rostering problems, no standby crew | No | Wallentin-Hermann test (internal event); Which? |
| Crew calling in sick en masse ("wildcat strike") | No | C-195/17 Krüsemann |
| Crew out of hours after an earlier internal delay | No | The underlying cause is internal |
| Crew out of hours after a genuine extraordinary event | Depends | Direct causal link and reasonable measures (C-74/19) |
| Shortage of the airport operator's baggage-loading staff | Can be | C-405/23 Touristic Aviation Services |
Crew illness: Lipton (UK) and TAP (EU)
Lipton v BA City Flyer [2021] EWCA Civ 454
The leading UK case. The claimants were booked on BA City Flyer flight BA7304 from Milan to London City on 30 January 2018. The captain reported feeling unwell while off duty, was assessed as unfit to fly, and with no replacement captain available within a reasonable time the flight was cancelled. The passengers reached London 2 hours 36 minutes late. Two lower courts accepted the airline's extraordinary-circumstances defence.
On 30 March 2021 the Court of Appeal (Coulson LJ, with Green LJ and Haddon-Cave LJ agreeing) allowed the passengers' appeal. Staff illness is an ordinary, everyday matter for any business, comparable to wear and tear on an aircraft, and therefore inherent in the airline's normal activity. It made no difference that the captain fell ill before clocking on, and the Court said the regulation is not meant to involve detailed investigation of exactly when or why a crew member became ill. The airline had to pay compensation.
TAP Portugal (C-156/22 to C-158/22, 2023)
TAP was due to operate a flight from Stuttgart to Lisbon at 6.05 on 17 July 2019. At 4.15 that morning the co-pilot was found dead in his hotel bed. The rest of the crew, in shock, declared themselves unfit to fly; with no replacement crew available away from TAP's base, the flight was cancelled and a replacement crew had to be flown in from Lisbon. In its judgment of 11 May 2023 the Court of Justice held that the unexpected absence, through illness or death, of a crew member essential to the flight, occurring shortly before departure, is not an extraordinary circumstance.
Both courts reached the same conclusion: providing for crew absence is part of running an airline. Because TAP was decided after 2020 it does not bind UK courts, but on this point UK law already says the same through Lipton.
General staff shortages and sick-outs
When an airline does not have enough pilots or cabin crew to operate its schedule, the cause is internal: recruitment, rostering and standby arrangements are matters within its control. Which? lists staff shortages among the reasons that are not extraordinary circumstances.
The same applies when crew stay away in large numbers. In Krüsemann (C-195/17, 17 April 2018) TUIfly crew reported sick en masse after a surprise restructuring announcement. The Court of Justice held that this "wildcat strike" was not an extraordinary circumstance. See our strikes guide for official strikes by airline staff.
Crew out of hours
Crew may only work a limited number of hours, and once a delay pushes them past their limit, the flight cannot leave until a fresh crew arrives. Airlines sometimes present this as a safety rule beyond their control. The rule itself is part of normal operations; what matters is what caused the delay that used up the hours:
- If it was a technical fault, a late aircraft for an ordinary reason or another internal problem, the whole chain is the airline's responsibility.
- If it was a genuine extraordinary event – a storm, an air traffic control restriction – the airline may rely on it only if it shows a direct causal link and that it could not reasonably have found replacement crew (C-74/19). The more time the airline had to react, the harder that is to show. See knock-on delays.
Airport staff shortages are different
Staff who work for the airport operator rather than the airline are a third party. In Touristic Aviation Services (C-405/23, 16 May 2024) a flight from Cologne Bonn to Kos on 4 July 2021 arrived 3 hours 49 minutes late. The delay built up from a shortage of check-in staff on the previous flight, a shortage of the airport operator's baggage-loading staff, and weather after the doors had closed. The Court held that a shortage of the airport operator's baggage-loading staff may be an extraordinary circumstance, but the airline must still show it could not have been avoided by all reasonable measures and that it adopted measures appropriate to the situation. This judgment dates from 2024 and is persuasive rather than binding in the UK.
What the airline must prove
- Exactly what staffing problem occurred and who employed the staff concerned.
- If it relies on an earlier event to explain crew running out of hours: what that event was, and the direct link to your flight.
- What it did to find replacement crew or re-route passengers.
For crew illness alone, the airline has no real defence under current case law, so its main argument is usually that the delay was under 3 hours or that the cancellation was notified 14 days or more in advance.
What you can do
- Write down what you were told – "waiting for crew", "crew out of hours", "captain unwell".
- Ask the airline in writing for the reason. If it mentions crew or staff, ask whose staff and why no replacement was available.
- Claim, citing Lipton v BA City Flyer for UK261 and TAP Portugal (C-156/22) for EU261. Our complaint letter template can help.
- Escalate if refused – to the national enforcement body or ADR body of the country where the incident happened for EU, EEA and Swiss flights (see where to complain and our country guides, for example Germany, Spain, France or Italy), or ADR or the CAA for UK flights – see how to claim and the case law library.
Delayed by a crew problem? Check your claim
Two minutes, free, no sign-up.
Frequently asked questions
The captain fell ill just before the flight and there was no replacement. Can I claim?
Yes, usually. The English Court of Appeal held in Lipton v BA City Flyer (2021) that a captain's illness was not an extraordinary circumstance, and the Court of Justice reached the same result for EU261 in TAP Portugal (C-156/22, 2023), a case in which a co-pilot died shortly before departure. Staff illness is a normal business risk airlines must plan for.
The airline said there was "no crew available". Is that an extraordinary circumstance?
Usually not. Rostering and providing standby crew are part of an airline's normal operations. Only if the crew shortage was itself caused by an extraordinary event – for example crew stranded by an airspace closure – could the airline argue otherwise, and it would have to prove the chain.
The crew had run out of legal working hours. Does that excuse the airline?
It depends on why they ran out. Duty-time limits are a normal part of running an airline, so the real question is what caused the earlier delay that used up the hours. If that was a technical fault or another internal problem, compensation is due. If it was a genuine extraordinary event, the airline must show a direct link and that it could not reasonably have found replacement crew.
Is a shortage of staff at the airport the same as a crew shortage?
No. A shortage of staff employed by the airport operator is external to the airline. In Touristic Aviation Services (C-405/23, 2024) the Court of Justice said a shortage of the airport operator's baggage-loading staff may be an extraordinary circumstance, but the airline must still prove it took measures appropriate to the situation.
Does it matter if the pilot fell ill at home rather than at work?
No. In Lipton the captain reported sick while off duty, and the Court of Appeal held it made no difference whether the illness began before or after he started work.
General information, not legal advice. We are an independent guide, not lawyers and not AirHelp.
Sources
- Regulation (EC) No 261/2004 – Article 5 (as adopted) – legislation.gov.uk
- Lipton v BA City Flyer Ltd [2021] EWCA Civ 454 – Court of Appeal (England and Wales)
- C-156/22 to C-158/22 TAP Portugal v flightright and Myflyright, judgment of 11 May 2023 – Court of Justice of the EU
- C-195/17 Krüsemann and Others v TUIfly, judgment of 17 April 2018 – Court of Justice of the EU
- C-405/23 Touristic Aviation Services v Flightright, judgment of 16 May 2024 – Court of Justice of the EU
- C-549/07 Wallentin-Hermann, judgment of 22 December 2008 – Court of Justice of the EU
- C-74/19 Transportes Aéreos Portugueses, judgment of 11 June 2020 – Court of Justice of the EU
- Interpretative Guidelines on Regulation (EC) No 261/2004 (C/2024/5687), section 5.2.2 – European Commission, Official Journal
- Your flight compensation rights in extraordinary circumstances – Which?
We check every rule against the sources above. Spotted an error? Tell us – see our editorial policy.