BA HKG Queries & Responses

Below is a list of Group related Queries and Responses that have been received from BA so far.

Payment of Ex-Gratia amounts from today

Staff who have entered into the agreement should now start to receive their ex-gratia payments from today. We have been informed by BA that they are intending to pay people within 28 days of signing and returning their individual agreements.

Therefore, there are a few payments due today and multiple payments falling due on Thursday. So long as you have completed the advice process and this has been confirmed independently, you should receive your individual payments on or before the 28 day time-frame.

Look out for your payments and/or contact us if it is not received when you feel it should have been.

Here are the most recent updates from 23-10-2018

Will I get my ex-gratia payment within the 28 days?

Only if you have taken full independent legal advice from ourselves or another UK based law firm. It has come to our attention that around 40 ICC members may not yet have taken any advice at all. The advice is a "process" that must be completed for the agreement to be ratified.

If you are unsure about having fully completed the advice, please check with your Union or our ourselves if you intended to take the legal advice from us. If staff have no other advice options, they are free to contact ourselves to receive advice from us or we are happy to refer you to UK based law firms.

BA want to start to release the ex-gratia payments from this Friday onwards so please act now if you are unsure or are yet to take advice but want to enter into the agreement.

Is there anything else that I need to do?

We understand that many of you have handed in your agreements to BA directly.

Some of you have already sent agreements to us directly and some of you are still in the process of sending them to us. This lets us know that you want to enter into the agreement and we are liaising with BA on the paper exercise for anybody who has contacted us.

As well as the signed agreement, please also send us our signed engagement letter page from our original letter if you are yet to do so. We have sent a number of e-mails about this including an example of what needs to be signed.

Previous updates from September to 16-10-2018.

We have now a further response from BA on queries.

There were concerns that the no derogatory clause was not mutual. We have raised this with BA who have responded to say that they accept us inserting additional wording into the separation agreements. This will state that "BA will use its reasonable endeavours to secure that it and its officers do not make or arrange for derogatory statements to be made".

However BA have stated if derogatory statements are made about them then they will not be prevented from making any statement (derogatory or otherwise) reasonably necessary to protect its interests.

This is a fairly standard position that employers take in the UK

Fixed Term Leavers will have an Appendix attached to their separation agreement.

BA have stated that they issued an appendix last week. Apparently, it was an estimate only because it needs to be finalised at the end of the month. If you have this, please send it to us.

The ORSO scheme remains separate to the ex-gratia payments.

BA have confirmed that if you need to make a claim in respect of your ORSO scheme it will be against the trustees of the ORSO scheme. We will insert wording into the separation agreements to make this clear.

What happens next after I have handed/sent in my agreement?

For our clients, we have already started working with BA in relation to which ICC members have handed in their signed agreement either to us or BA. Whilst that cross referencing is being done, we are also amending all signed agreements to ensure that any required protection is included in all agreements.

This will include responses from BA that have been set out below should they need to be expressed in the agreement. Examples of this are any agreements in relation to ORSO payments and a recent agreement that the non-derogatory clause at at D-14 (main agreement) will be mutual on BA also.

If you do not wish us to include this protection in your individual agreement, please e-mail us to let us know but we strongly advise you to include this protection.

When will be I paid my ex-gratia payment?

Strictly speaking, the agreement says 28 days from you returning it but we are working with BA in a bid to get your monies released sooner. You should be paid no later than 28 from the day that you signed and returned all required documentation but please look out for further updates.

I still have outstanding queries. When will I hear?

We are working with BA on any outstanding and they have indicated that they will do their best to respond. Please look out for further updates.

If I agree to the terms of the Separation Agreement, will I get all other payments such as my ORSO payment?

BA have again confirmed that any ORSO payments are completely separate. After hoping to issue a breakdown for these payments, they have now said that the ORSO payments sit with the trustees of that scheme, not BA.

They have said that you will be able to take issue with any defect in respect of the ORSO payments from the trustees. We will be ensuring that your individual separation agreement t protects you in this regard BEFORE we confirm that it is binding.

The Separation Agreement (clause 7) states that the Ex Gratia Payment may be used to offset, reduce or discharge any Claims. Whilst BA have now confirmed that the Ex Gratia Payment does not include ORSO, will they expressly confirm that if I agree to the terms of the Separation Agreement, they will will absolutely not offset any aspect of ORSO and/or MPF whatsoever?

The above ORSO answer is related to this and again, we will be ensuring that your individual separation agreement protects you in this regard prior to confirming that it is binding with BA.

I am still confused about my own ex-gratia payment and think that it is much lower than other leavers in the group?

BA have stated that they are confident that all payments are correct but if individuals have queried them with us, we have passed this on and await responses on a case by case basis. They have indicated that it is not their practice to discuss other peoples payments or the calculations that are used for anybody else. They have said that they believe that the payments being made to everybody are generous and are well above the statutory amounts that they are required to pay in these circumstances.

What happens if I have an existing holiday pay claim? Can these claims be excluded from the Separation Agreement?

BA have responded that all and any claims are given up by the separation agreement save for existing work place injury claims. If you have a holiday pay claim or indeed any other claim, you need to balance any potential value in those claims with the value of your ex-gratia payment. If you have an existing work place injury claim, please notify us immediately.

I have signed and returned my agreement but I am still worried about my own individual the figures being incorrect. What can I do?

Do not worry about this as we do not need to make any agreement legally binding before 11-10-18. Just because you have sent it to us or given it to your employer, it is not binding until we sign off on it ourselves.

We cannot sign off on any agreement until we have crystal clear instructions that you wish to enter into it. Basically, everybody still has time to check their calculations and other matters between now and next Thursday.

I have signed and returned my agreement to BA so when will it be finalised?

As stated above, unless we have we have crystal clear instructions to sign off on your agreement, we cannot do so. We will be confirming instructions to sign off ourselves from Monday and if you have sent it back, it will be finalised by Thursday at the latest.

In terms of Ex Gratia payment dates, we will be pressurising BA to pay these as quickly as possible and certainly within 28 days of you returning the agreement yourselves.

We have been circulating translations of the UK laws stated in the severance agreement to all of our clients but please let us know if you have not received it yet.

How do I return the settlement agreement by the deadline if I am ready to sign it?

So long as you have read and understood our engagement letter and HCR INDEPENDENT ADVICE document, all you need to do is sign page 9 of the agreement and scan or fax it it to us (HCR) or hand it to your employer if so invited.

If returning to us, ideally, we need you to scan/fax the whole document and BA are likely to insist on a full copy before releasing your Ex Gratia payment later on.

Only if you are struggling to send the whole document by the deadline can we accept a scan/fax/photo of the signature page solely. However, you must send the whole document with your signature on it as soon as you can after the deadline.

If you are ready to return the agreement to us, please return in one of the following ways:

By scan and email - Sign and Scan your agreement to SAO@hcrlaw.com

By Fax - 01242 518 428

By Post/Hand delivery to one of our offices on our Contact page.

What if I haven’t received my revised Separation Agreement or the amounts stated are incorrect?

BA have stated that, as far as they are concerned, everybody who had an initial deadline of 5th October 2018 had received their updated packs in person on the 2nd October.

BA also stated that they would send information to each crew member about your August amounts to ensure that you have all of the requested information, on or around 4-10-18. BA have asked ICC members to let them know directly if they believe that errors have been made. BA state that they are confident that the amounts are now correct.

BA state that, by now, you will have received two separate payments into your bank accounts - one deposit is the payments in Appendix 1 and the other deposit is your outstanding August ETP, LRP, DOA and Bar Commission amounts.

Please request our confidential advice note and terms of engagement translated into Chinese should you wish to use it but are yet to receive it.

You should have received the payments which are set out in Appendix 1 by now. If you have received these payments but you believe that the amounts you have received is incorrect, then please contact both your employer and ourselves as soon as possible.

You should not sign the agreement if the amounts are incorrect. Please be aware that the Ex-Gratia payment will then be received by you within 28 days of you signing and returning your agreement.

When is the deadline for submitting my business expenses to my employer?

As stated at A4 of the Separation Agreement, all unclaimed business expenses are required to be submitted within a week of the Cessation Date stated in your individual agreement. We have requested that this is extended in light of the extension to the main deadline and will let you know when we have received a response.

Under Appendix 1 (Note 2), it states that there may be a deduction for my contribution to a Mandatory Provident Fund Scheme from the amounts set out in Appendix 1. How will I become aware of any amounts which may be deducted under this this Note?

We have asked for clarification on this and are awaiting a response. We will pass on this response as soon as we receive it.

How is the Ex-Gratia payment made up?

We understand that you have now received your updated packs including a new version of your Separation Agreement which includes this breakdown.

We have compared this to the first version which was provided to you and note that there have been changes to clauses 1, 5, 7 and the figures in Appendix 1. Whilst the extra wording does not materially affect the terms and effect of the Separation Agreement, please note these changes and re-check your entire document individually prior to signing your agreement.

Are any benefits pursuant to (the “Retirement Scheme”) mentioned in clause A3 absolutely separate from all and any payments being made in (the “Ex-Gratia Payments”) mentioned at clause B5.

Yes, BA state that you will receive payments under the Retirement Scheme from the trustee on top of the Ex Gratia Payment, if applicable.

In terms of any notice pay, is it the case that any Pay in Lieu of notice type payments are only comprised of basic pay and no other types of remuneration?

(a) If you agree to the terms of the mutual separation, BA state that they are not required to make payment of wages in lieu of notice.

(b) If you do not agree to the terms of the mutual separation, BA state that they are required to make payment of wages in lieu of notice to effect the termination on 26 September 2018.

BA state that there is a statutory formula under the Employment Ordinance (“EO”) for calculating the amount of wages in lieu of notice payable. The wages in lieu of notice payable is calculated by reference to the wages earned by the ICC in the preceding 12 months. Apart from basic salary, other payment items which falls within the definition of “wages” under the EO should be included in calculating the wages in lieu of notice. BA state that they do not treat meal allowance as wages under the EO, hence it is not included in calculating the wages in lieu of notice.

Terminal Payment

BA have raised that the new offer packs will breakdown the elements. We had raised that a group of you believe that these figures should be based on average monthly pay for the last 12 months and that there has been an incorrect calculation. We suggest that this is reviewed again once the new packs have been issued.

How is the Daily Annual Leave payment worked out, if applicable?

BA have responded that this is calculated using the average pay over the pre-ceding 12 months. They have also stated that any queries regarding annual leave calculations can be directed to Debby Wang, the Base Administrator who can confirm any leave entitlement.

When will I receive any pro-rata CNY payment, if applicable?

BA have responded that this will be paid with the termination payment paid within 7 days. They state that the payment will be calculated pro-rata for the months between January and October.

When and how will I receive the ETP and LRP payments for August and September?

Again, BA have responded that they will be including this in the payment that is made within 7 days.

Please keep this website page under review for responses from BA as and when we receive them.

Your next step options

1. Decide if you want to wait for any outstanding responses and allow the deadline to pass. For the avoidance of doubt, the offer can technically be withdrawn at any time prior to you signing up to a binding agreement.

2. Sign and return the agreement before the deadline expires.

3. If you wish to use alternative lawyers, please notify us at sao@hcrlaw.com and we will be happy to refer you to firms in the UK and/or Hong Kong. You must receive independent legal advice from someone qualified and insured to provide it if you wish to enter into the agreement with BA. You are of course, free to seek your own lawyers.

Please also see our BA HKG Independent Advice page for further details.

Please be aware that we are one of a number of UK based law firms who provide legal services to BA in the UK. As stated previously, we have had no involvement in this particular matter and are therefore able to provide you with independent legal advice on any English law aspects of your proposed agreement with BA if you are happy to receive it. You do not have to receive the advice from ourselves.

If you would like to read more about our independence, you can do so on our independence page.

If you would like to book a conference to discuss any queries that you may have, please do so here. book a free consultation to suit you now.

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