The Court of Justice of the European Union (ECJ) has clarified the rules relating to where employees are able to bring employment claims, when they perform their work in more than one jurisdiction.

Employees who work in EU member states are protected by legislation known as the Brussels Regulation. This allows an employee to sue their employer either in the country where it is domiciled or in the country where the employee habitually carries out his or her work. These rules of jurisdiction are designed to allow an employee to sue their employer in the court that serves their best interests, as they are the weaker party in the contract.

In the joined cases of Nogueira v Crewlink and Moreno Oscar v. Ryanair, a group of cabin crew staff brought employment claims in Belgium. One claimant was employed directly by Ryanair and the others were employed by Crewlink and assigned to work for Ryanair. Both Ryanair and Crewlink are Irish companies.

The jurisdiction clause in the relevant employment contracts nominated the courts of Ireland to hear any claims. However, Charleroi airport was nominated as the employees’ “home base”; a construct which is used to determine which social security legislation applies to flight crews. The home base is decided by the airline operator and specifies where the crew member normally starts and ends a duty period. It is the place in which the operator is not normally responsible for the accommodation of the crew member. In this case, each of the employees was required to live no more than an hour from Charleroi Airport.

The Belgian Labour Court held that it did not have jurisdiction to hear the claims. On appeal, the case was referred to the ECJ to determine the question of “where the employee habitually carries out his work”.

ECJ decision

The ECJ concluded that the jurisdiction clause in the employment contracts, which nominated the courts of Ireland to hear any claims, was not enforceable. In accordance with the Brussels Regulation, the employees were entitled to bring claims in the “place where they habitually carry out their work”.

The employers contended that the Irish courts should have jurisdiction as the employees performed their duties on board aircraft registered in Ireland, were subject to Irish law whilst working and the contract was concluded with Ryanair affixing its signature at its Irish head office.

The ECJ considered that an employee’s habitual place of work equates to the location where “the employee in fact performs the essential part of his duties”. This will vary from case to case, but for employees in the aviation sector (as in other sectors where travel is an essential part of the role, such as maritime and road transport), a number of factors must be considered including:

  1. The place from which the employee carries out his transport-related tasks;
  2. The place where he returns after his tasks;
  3. The place where he receives instructions concerning his tasks and organises his work; and
  4. The place where his work tools are to be found.

Whilst the “home base” is not definitive when deciding where the employee habitually carries out their work, it is likely to be a significant factor to be considered.

Applying the test to this case, the ECJ determined that the employees performed the essential part of their duties in Belgium. Therefore, they were entitled to have their claims heard by the Belgian courts.

Comment

It is important to note that an exclusive jurisdiction clause in an employment contract will not be valid, if an EU-based employee performs the essential part of their duties in another country. Sometimes, it may not be immediately clear where the employee habitually performs their work.

The rules in the Brussels Regulation are only relevant to jurisdiction (that is, which courts are able to hear the claim). They do not cover which laws should be applied by the court when dealing with any claims. This has the potential to cause significant complexity for employers whose employees spend time in multiple countries and at least one of those countries is an EU member state.

As a general rule, employees will have both contractual rights and statutory rights derived any applicable legislation introduced by a country in which they perform work. For contractual claims, there is greater flexibility for the parties to choose which country’s laws apply – although default rules apply under EU law (known as the Rome I Regulation) if the contract is silent. In Ryanair and Crewlink cases, the employment contracts expressly stated that they were governed by Irish law.

The applicability of statutory rights will depend on the laws of the country concerned. For example, protection from unfair dismissal and discrimination under English law will only apply where the claim has a closer connection with Great Britain than any other system of law.

All of this means that, for instance, in the Ryanair and Crewlink cases, the Belgian courts may now be required to consider Irish contract law, as well as potentially both Irish and Belgian employment law.

It is worth giving some thought to how these various factors might apply to employees based overseas in EU member states, before any potential claims arise.