Lutz v Ryanair DAC & Anor [2025] EWCA Civ 849
Court of Appeal of England and Wales
Facts
The claimant, through a shelf company, had a five-year fixed contract for services with an intermediary company to fly as a pilot with Ryanair.
Issue(s)
The question was whether the claimant was a “temporary agency worker” within the meaning of the relevant legislation.
Discussion
[120] I start by noting that the parties approached the “temporarily” issue on the basis that we are concerned in this case with a single supply of the Claimant’s services to Ryanair starting at the moment in July 2018 when he first started actually to work for it and continuing thereafter. The Court raised with counsel the possibility of an alternative analysis under which there were a series of distinct supplies for each period that he was rostered. However, Mr Bowers pointed out that even if such an analysis might be possible it had not been suggested at any stage below, and that, if it had been, it might well have been necessary to make further findings of fact. I accept that. I accordingly proceed on the “single supply” basis, and in the absence of submissions I express no views about the alternative analysis. But it should be noted that on that basis this case is very different on its facts from either Brooknight or Angard, where the workers were found to have been supplied to the end-user on a series of specific time-limited assignments.
[121] The question then is whether that supply was for a fixed period. So far as the contract is concerned, it plainly was: it is an express term that the Claimant would work for Ryanair for a five-year period, and it would thus follow from my conclusion on ground 1 that he would be working “temporarily” within the meaning of regulation 3 (1). Mr Sheridan, who made his submissions clearly and succinctly, advanced two answers to that conclusion.
[122] First, he relied on the ET’s finding, noted at para. 23 above, that it was the invariable practice at the expiry of a five-year term for contracted pilots to be issued with a new five-year contract. He submitted that that meant that, notwithstanding the formal contractual position, the nature and purpose of the arrangement was that the Claimant was being supplied to Ryanair work on a permanent basis.
[123] I do not accept that submission. In the present case the contract expressly provided for the Claimant to work for Ryanair for a single fixed term. The complications which may arise where the contract between the agent and the worker contemplates multiple supplies, as considered by Judge Auerbach in Angard, are not present. The contract should be taken as correctly reflecting the nature of the supply unless the Claimant was aware that in practice it would continue indefinitely. It was, however, accepted that the Claimant was unaware of any such practice: see para. 23. At para. 204 of its judgment the EAT made the further point that the replacement of one fixed term by another would in any event not render the supply indefinite, and there is obvious force in that point too.
[124] Second, Mr Sheridan relied on the finding that, contrary to the expressed purpose of the MCG Agreement, the Claimant was in practice working for Ryanair from the start on a fully-rostered basis and not simply to fill in during the busier periods: see para. 11 above. I cannot, however, see how this is relevant. We are, as I have said, proceeding on the basis that MCG made a single supply of the Claimant’s services. The only question is whether that supply was for a fixed term. If it was, it does not matter how often during that term his services would be called on. (I believe that this is the same point as is made by Judge Auerbach at para. 58 of his judgment in Angard.)
[125] Even if, contrary to that view, the question whether the Claimant would be fully-rostered were relevant, I would not accept Mr Sheridan’s submission. The nature of the supply has to be judged at the point that it is made. The Service Agreement only committed MCG to providing the Claimant with 450 hours flying time. It may well be that he was nevertheless aware that Ryanair was sufficiently busy to roster him fully throughout the year, but he could not be confident that that would remain the case throughout the term of the Agreement. If there were a downturn (as in fact must have been the case shortly after his dismissal, in consequence of the pandemic) Ryanair would inevitably roster the employed pilots in preference to the contracted pilots.
[126] I turn to consider the distinct point raised by Mr Brown on behalf of MCG. He emphasised that the essential issue concerned regulation 3 (1) (a) – that is, the nature of the “supply” of the worker’s services by the agency to the hirer: he endorsed the approach taken by Judge Auerbach at para. 45 of his judgment in Angard. It followed that the nature of the worker’s contract with the agency, which is the subject of regulation 3 (1) (b), is not the focus of the enquiry: he accepted that it might be relevant as part of “the evidential mosaic”, but the main focus should be on the contract, or other arrangements, between the agency and the hirer, as the supplier and recipient respectively of the services in question. That was not the approach taken by the ET, which, he submitted, had treated the five-year fixed term in the Services Agreement as decisive against permanent status. If the Judge had focused on the correct question, his finding at para. 27 of the Reasons that by the time that the Claimant was recruited contracted pilots were being rostered on the same basis as employed pilots (see para. 11 above) would have required him to conclude that the Claimant was being supplied to work on a permanent basis; and even if that was not so the ET had evidently approached the issue on the wrong basis, and the claim should be remitted for a factual evaluation on the right basis to be carried out.
[127] I do not accept that submission, for reasons which are largely covered by what I have already said. I agree that the correct analytical focus is on the basis on which the worker’s services are supplied by the agency to the hirer. But there is no reason why that may not be identified by looking at the terms of the contract between the agency and the worker, and that is indeed what the EAT did in both Brooknight and Angard. I can accept that there may be cases in which the contract, or other arrangements, between the agency and the hirer will show, or help to show, whether the supply is temporary or permanent, particularly where the contract with the worker is silent about it. But this is not such a case. As Mr Brown was constrained to accept, the MCG Agreement says nothing explicit about whether workers are to be supplied. Rather, as I have said, his argument was based on the ET’s finding about how the Claimant was rostered in practice. I do not believe that that finding assists him any more than it does Mr Sheridan: a finding that at the time that the Claimant was first supplied he was in fact fully rostered is not an indication about whether he was being supplied on a temporary or a permanent basis. I therefore see no error in the Judge’s focus on the five-year term in the Service Agreement. (For what it is worth, however, I do not think that it is right to say that that is the only factor which he took into account. He also refers in para. 17 of the Reasons to the fact that the Claimant repeatedly pressed to be engaged as a contracted pilot and was refused: that is a relevant indication that the basis of his supply was understood by Ryanair as well as by him to be temporary.)
CONCLUSION ON THE EQUAL TERMS CLAIM ISSUE
[128] Both the ET and the EAT reached their conclusion that the Claimant was supplied to work temporarily for Ryanair on the basis that the contract between him and MCG was subject to a fixed term. In my view they were right to do so.
