Was a Claimant who provided services as a pilot to an airline via an intermediary business, both ‘employed’ by the intermediary business for the purposes of the Civil Aviation (Working Time) Regulations 2004, and an agency worker under the Agency Workers Regulations 2010?
Yes, held the EAT in 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 EAT held that the Claimant was not self-employed. He was not in business on 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.
The EAT looked behind the contractual set-up to find the commercial reality; the Claimant’s independence was 'entirely notional' and he was 'plainly a worker'.
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