LEGAL A BALPA win in the employment tribunal brings a welcome step forward to end fictional self-employment in aviation Fiction in practice By John StembridgeKing, BALPA Legal Department key object of BALPA is to assist members facing challenging issues in the aviation workplace. Members are supported through disciplinary hearings, employment tribunals and court cases. Every case is different. Some affect just one member; others can have an impact on a large group of individuals, in aviation and beyond which is what happened recently when a member brought a claim in the Employment Tribunal. BALPAs legal committee regularly works with first-rate solicitors at Farrer & Co, and some brilliant counsel at Old Square Chambers. This means that the very best legal team can be deployed against intransigent employers with very deep pockets, making excellent use of the collectivism that BALPA membership affords. In April this year, a courageous BALPA member, Jason Lutz, a contractor pilot, stepped forward in an employment tribunal. Fully supported by the BALPA legal team, he shone a spotlight on a problematic employment practice in the aviation industry, which helped to clarify the status and rights of so-called self-employed pilots and agency workers. The BALPA-appointed lawyers argued that he should have been classed as a crew member as well as a worker for the two-year period that he was engaged by McGinley Aviation Limited (MCG) and should, therefore, have received a basic entitlement to paid annual leave. In addition, it was successfully argued that he was an agency worker supplied by MCG to its client Ryanair as the hirer. Therefore, he should also have been afforded parity with directly employed Ryanair pilots in respect of basic working and employment conditions. The case Here is a summary of the case in a bit more detail. On 5 April 2022, the London East Employment Tribunal handed down judgment in a ruling on the preliminary issue of Mr Lutzs employment status that will cause tremors in the aviation sector, where pilots are engaged on a contractor basis via a service company. As Employment Judge Housego noted in the opening paragraph of the judgment, while this was a hearing to decide about Mr Lutzs status in his role as a pilot it has, of course, a far greater significance than Mr Lutzs personal claim, as there are many pilots in precisely the same position as Mr Lutz. The claim was for holiday pay under the UK Civil Aviation (Working Time Regulations) 2004 (CAWR), and for parity in respect of basic working conditions under the Agency Workers Regulations 2010 (AWR). In brief, the background to the case was that Mr Lutz applied to become a pilot at Ryanair. He attended a selection interview at Ryanairs headquarters in Dublin. He was subsequently contacted Sim sessions have been by adjusted to suit the pilots on the day a third party, MCG, and told that he had passed the selection process and was to be engaged by MCG as a contractor pilot, to be supplied to its client, Ryanair. MCG dictated that he needed to set up a service company. Thereafter, Mr Lutz entered a five-year fixed term contract as a named party with MCG and the service company to undertake flying duties for Ryanair. He was paid for each scheduled hour of block flying and his payments were channelled by MCG via the service company, which, in turn, paid Mr Lutz. He never received any holiday pay. Mr Lutz brought a claim against MCG for holiday pay. The tribunal decided, as a preliminary issue, that he was both a worker and crew member engaged by MCG, signalling that he was therefore entitled to holiday pay. This is possibly the first occasion when a tribunal has considered the legal meaning of crew member, which has a significant impact on the aviation industry. The tribunal found that he was engaged under a contract by MCG and that he was a crew member. The tribunal further commented: More fundamentally, it would be extraordinary if the CAWR did not apply to Mr Lutz. This is a health and safety regulation. The need for such regulation for those flying passenger aeroplanes is obvious. It cannot be that a salaried pilot is subject to the CAWR, but his/her contracted counterpart is not. It is impossible to contemplate that it is a proper construction of CAWR that these regulations, put in place to make sure that the pilots who fly passenger planes are not impaired by being overtired, apply to neither Airlines are gradually easing their staff back in pilot of a passenger jet carrying hundreds of people. This is possibly the first occasion when a tribunal has considered the legal meaning of crew member Examination licences for Air Trafc Controllers (ATCO s). Weekly House, Padbury Oaks 583 Bath Road, Longford, UB7 OEH our own car-parking facilities. www.heathrowmedical.com Medicals to meet EASA and CAA requirements as well as Initial, Renewal & Revalidation European Class 3 Medical Personal service with a quick turnaround for Initial, Excellent availability of appointments. Adjacent to Heathrow Airport, we have the standards of the major International civil aviation authorities including CASA, Canada, and GACA. Renewal & Revalidation Class 1 and Class 2 applications. The tribunal also decided that Mr Lutz was an agency worker supplied by MCG temporarily to work for Ryanair as hirer. This paves the way for him to pursue his claim for entitlement to the same basic working and employment conditions as directly-employed Ryanair pilots. The tribunal found that Mr Lutz was patently not self-employed in the sense of operating a genuine business on his own account, with Ryanair or MCG being customers or clients of his service company. He was, instead, a worker and a crew member of MCG, and an agency worker of Ryanair as the hirer. The tribunal found that Mr Lutz had no say in anything. He just did what he was told. This is the polar opposite of running a business. The judge also went so far as to describe these work arrangements as a fiction in practice. The tribunal further rejected arguments by Ryanair and MCG that Mr Lutz was not required to perform flying duties personally because of the existence of a substitution clause in the contract that he entered with MCG. This did not reflect the reality of the situation and was a sham. There was no unfettered right of substitution. The outcome For BALPA, this was a landmark moment and was not only good news for our member, but also for all self-employed contractors in the aviation sector engaged under the same terms and conditions. BALPA was represented by David Hunt, Alice Yandle, and Caitlin Farrer, of Farrer & Co, and Michael Ford QC and Stuart Brittenden of Old Square Chambers. Farrer & Co and Old Square commented: This ruling has immense implications for the use of the pilot contractor model in the aviation sector and leaves the way open for other potential claims by pilots engaged under similar arrangements. BALPA now looks to MCG and Ryanair to remedy the position. Email: medicals@heathrowmedical.com Tel: 020 8528 2633