The British Airline Pilots’ Association (BALPA) says it is “standing firm in support of workers’ rights” as the Court of Appeal reviews a test case that could have major implications for employment practices in aviation and other industries.
The appeal, brought by Storm Global and Ryanair, challenges two previous rulings by the Employment Tribunal and the Employment Appeal Tribunal. Both rulings found that pilot Jason Lutz was a worker and an agency worker of Storm Global who hired him out to work for Ryanair, despite both Ryanair and Storm Global insisting that he was self-employed.
Mr Lutz brought claims against employment agency MCG Aviation (now Storm Global) for unpaid accrued annual leave on the basis that he was employed by MCG as a member of a flight crew within the meaning of Civil Aviation (Working Time) Regulations 2004. He also brought claims against both Storm Global and Ryanair under the Agency Worker Regulations 2010 seeking the same employment conditions as would have applied if he had been directly recruited by Ryanair on the basis that he was an agency worker within the meaning of the regulation.
The original Employment Tribunal hearing accepted that Mr Lutz had the alleged statuses he claimed and also made other findings, unchallenged by Ryanair or Storm Global, including:
- That Mr Lutz was not in business in his own account and Ryanair and MCG were not his clients.
- That there was a ‘complete imbalance of power’ and Mr Lutz was not able to alter anything about the arrangements.
- That the service company he was required to use was a ‘fiction’.
- That the substitution clause in the written agreement was a ‘sham’
- That the dominant purpose of the arrangement was for Mr Lutz to provide personal service as pilot to Ryanair.
Storm Global and Ryanair contested the tribunal findings and took it to the Employment Appeal Tribunal last year where they lost their appeal.
In a second attempt to have the challenged findings dismissed, Ryanair and Storm Global have now gone to the Court of Appeal who will decide if the previous findings should be upheld. If Ryanair and Storm Global lose their appeal, then it would have a significant impact on the rights of Mr Lutz and other pilots who have been recruited and engaged through employment agencies in a self-employed capacity. Paid annual leave and pension contributions would now become due, as well as receiving the same employment terms and conditions as pilots employed directly by airlines.
In a statement, BALPA said: “This case comes on the back of other rulings in the last few years on the rights of workers in the gig economy, such as cases against Uber and Hermes, where drivers and couriers were found to be workers rather than self-employed contractors as the companies had claimed.
“If upheld by the Court of Appeal, the ruling will force airlines using these employment tactics to review their hiring practices and could result in back pay and holiday pay being owed to pilots. “It will also have implications beyond aviation for companies seeking to hire workers and agency workers using similar arrangements.”
A decision from the Court of Appeal is not expected for several months after the hearing. BALPA says that it has consistently urged Storm Global and Ryanair to accept the judgments and focus on working with the union to provide clear, sustainable forms of employment for pilots and address claims for historic back pay.
BALPA General Secretary Amy Leversidge said: “The previous rulings are unambiguous, and the fact that Ryanair and Storm Global continue to challenge these decisions is a disgrace. This is another nail in the coffin of bogus claims of self-employment, yet Ryanair and Storm Global continue to deny their responsibilities, prolonging the process and delaying justice for affected pilots.
“No worker should be subjected to insecure gig economy-style employment arrangements that strip them of their rights, particularly those in roles where safety is paramount and stability and proper protections are essential. If the Court of Appeal upholds the rulings, we will be seeking compensation for pilots who have been denied their rights for far too long.”
Alice Yandle, Partner at Farrer & Co, representing Lutz, said: “This case will have huge implications for all agency workers in the modern workforce, extending well beyond the aviation industry. It will determine whether they are afforded rights to paid annual leave and access to the same basic working and employment conditions as if directly engaged by the hirer. We are proud to represent BALPA who remain committed to striving to improve the rights of their members and workers more generally.”
Storm Global was originally engaged in 2011 to provide ‘contract pilots’ across Ryanair’s network. It was appointed as the airline’s main supplier in 2014 and, according to its website, provides around 750 captains and first officers across the group.
“An innovative and compliant contracting model has been put in place, complemented by a new direct employment model unique to the UK,” says Storm Global.
BALPA added: “The Court of Appeal hearing is a crucial moment for employment rights in the aviation sector. BALPA will continue to push for fair treatment, ensuring pilots receive the protections they are legally entitled to.”
This comes after the BALPA won its own Court of Appeal case back in January over illegal blacklisting practices at Ryanair.
Members of the BALPA called a strike in 2019, and among those were Ryanair pilots. However, in response, Ryanair threatened to revoke concessionary travel benefits for employees who participated in the action. The airline went on to remove these benefits for 12 months.
The case made its way through the courts, and earlier this year, the court sided with the pilot union.
