Employers in the transportation and logistics industries frequently employ employees who carry out their duties in a number of different countries. Whilst an employer may include a clause specifying the laws of the country that they have chosen to govern the contract, a recent case against Ryanair has highlighted that this does not mean that the employee’s employment rights are restricted by that choice.

European Union regulations (2001 Brussels Regulation now updated as the Recast Brussels Regulation) recognise that because of an inequality in bargaining positions between an employer and an employee, any decisions on which country’s laws govern an employment contract should be taken with a view to protecting the weaker party.

The same EU regulations provide that an employer situated (with a degree of permanence) in an EU member state may either be sued by an employee:

a) in the courts of that same member state; or

b) the member state in which the employee habitually carries out his work (which may be a different member state); or

c) if the employee does not habitually carry out his work in any one country (for example if they work in the transport or leisure sectors) then the employee can bring a claim in the courts based in the country where the employer’s business is situated.

Claims were brought by air cabin crew members employed either directly by Ryanair or by Crewlink (an Irish company that supplied staff to Ryanair) for unpaid wages, overtime pay, enhanced pay for night work and severance pay. As they were working in the aviation industry, a further EU regulation applies, requiring a ‘home base’ to be identified; being the location nominated by the operator to the crew member from where they would normally start and end a period of duty.

The cabin crew contracts of employment stated that the employment relationships were governed by Irish law and the cabin crew worked on Irish registered aircraft. The cabin crew members brought their claims in Belgium. However, the Belgian labour tribunal decided that it did not have jurisdiction to hear the claims. The cabin crew members appealed, and the appeal court asked the Advocate General of the Court of Justice of the European Union to give them an opinion as to how “the place that in which the employee habitually carries out his work” should be interpreted, within the context of the aviation industry.

The Advocate General concluded that when considering where the employee was based and therefore what legal rights they have, it should consider the place ‘where or from which’ the employer principally carried out his duties with his employer.

Since the crew members started their shift in Belgium and worked in Ireland during their shift it was not possible to identify the ‘place from where’ they principally carried out their duties. However, the Advocate General thought that it was possible to identify the ‘place from which’ they carried out their duties. The Advocate General identified a number of factors that they took into consideration, including the fact that the crew members:

  • started and ended their working day in Belgium at Charleroi Airport

  • received instructions relating to their tasks and organised their work at Charleroi Airport (even though the instructions were sent from Ireland)

  • worked on aircraft, which were also based at Charleroi Airport

  • were contractually required to live less than one hour from Charleroi Airport

  • reported their sickness absence at Charleroi and

  • had access to a crew room at Charleroi Airport.

In light of these factors, the Advocate General concluded that the place from which the crew members performed their duties was Belgium.

As an aside, the Advocate General also said that the identity of the employee’s ‘home base’ was only indirectly relevant but that the home base could correspond either to the place where the worker starts and ends their working day, or to the place where the worker lived. The Advocate General also concluded that the fact that the aircraft were Irish registered was irrelevant for the question of determining employment rights.

Practical considerations:

Remember that jurisdiction clauses will not always be determinative of the law that will govern an employment relationship; instead, a number of issues will be considered when deciding on the ‘place from which’ workers carry out their duties, which will include:

  • where they start and end their working day;

  • the place they are made aware of instructions communicated by the employer; and

  • where they organise their working day.

Whilst employers across transportation and logistics industries employing employees within the EU but requiring them to work across a number of member states should take note of the Ryanair case, the same factors will equally be taken into consideration when deciding the on the rights that apply employment relationships with mobile international executives, who may travel frequently around the European Union as an integral part of their role.