Key Facts
- •Mr. Lutz, a pilot, was supplied to Ryanair by MCG Aviation Limited (now Storm Global Limited) under a five-year contract.
- •Mr. Lutz brought claims against MCG for unpaid annual leave and against both MCG and Ryanair for equal employment conditions under the Agency Workers Regulations 2010.
- •The Employment Tribunal (ET) found Mr. Lutz was employed by MCG for CAWR purposes, was a worker under the EU Charter, and was an agency worker under AWR.
- •The ET found the substitution clause in Mr. Lutz's contract was a sham and that the dominant purpose of the arrangement was for Mr. Lutz to provide personal service to Ryanair.
- •Ryanair and MCG appealed the ET's decision regarding Mr. Lutz's status as an agency worker, challenging the findings of temporary supply and personal service obligation.
Legal Principles
In determining worker status, the focus should be on the actual working relationship, not just the written contract, considering the relative bargaining power of the parties.
Uber BV v Aslam [2021] UKSC 5, Autoclenz Ltd v Belcher [2011] ICR 1157
A tripartite arrangement (individual, agency, end-user) can give rise to a worker relationship between the individual and the agency.
Allonby v Accrington and Rossendale College [2004] ICR 1328
'Employed' in CAWR should be understood in the EU law sense of an 'employment relationship'.
Case Law discussion
For AWR purposes, 'temporarily' means not permanent, terminable upon a condition being satisfied (e.g., expiry of a fixed term). A succession of fixed-term contracts doesn't equate to an indefinite arrangement.
Moran v Ideal Cleaning Services Ltd [2014] ICR 442, Brooknight Guarding Limited v Matei, Angard Staffing Solutions Ltd v Kocur [2020] ICR 1541
An unfettered right to substitute is inconsistent with a personal service obligation. A conditional right may or may not be, depending on the nature and degree of the fetter. Fetter due to regulatory requirements is still a fetter.
Pimlico Plumbers Ltd & Anor v Smith [2018] UKSC 29, Stuart Delivery Ltd v Augustine [2021] EWCA Civ 1514, Sejpal v Rodericks Dental Ltd [2022] EAT 91
Outcomes
The appeals by Ryanair and MCG were dismissed.
The ET's findings of fact were sufficient to support its conclusions. No errors of law were found in the ET's application of legal principles regarding worker status under CAWR and AWR.