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Pilot engaged by Ryanair through an intermediary had rights as an agency worker and was also ‘employed’ by the intermediary for the purposes of the Civil Aviation (Working Time) Regulations 2004
Adrian Fryer
In the recent case of Lutz v Ryanair DAC and others, the Claimant was supplied to Ryanair as a pilot under a 5 year agreement via a company called MCG Aviation Limited.
He made a claim for annual leave against MCG under the Civil Aviation (Working Time) Regulations 2004 (CAWR), on the basis that he was a ‘crew member’ who was ‘employed’ by MCG. He also claimed that he was an ‘agency worker’ under the Agency Workers Regulations 2010 (AWR) and was therefore entitled to the same employment conditions as pilots directly employed by Ryanair. Ryanair and MCG maintained that the Claimant was self-employed.
The Employment Appeal Tribunal held that the Claimant was not self-employed. He was not in business in his own account and Ryanair and MCG were not his clients – there was a complete imbalance of power. The service company he was required to use was a fiction and the substitution clause in the written agreement between him and MCG was significantly limited. A 5-year supply agreement for the Claimant was still a ‘temporary’ supply under the AWR, such that he had protection as an ‘agency worker’ under AWR. He was also entitled to annual leave from MCG under CAWR, as he was ‘employed’ by MCG in the wider sense of that term applicable under CAWR.
This case serves as a reminder that tribunals will look behind the contractual set-up to find the commercial reality. In this case, the commercial reality was that the Claimant’s independence was ‘entirely notional’ and that he was ‘plainly a worker’.