Posts Tagged place where the employee habitually carries out his work
Place of habitual employment and the alternative findings of corporate ‘domicile’- The Employment Appeal Tribunal in Powell
In David Powell v OMV Exploration and production limited, the Employment Appeal Tribunal ruled on the (absence of) jurisdiction for UK courts in the case of a UK domiciled employee, employed originally to work from Yemen but in reality working from Dubai, hired by a Manx incorporated company run from Austria. The employment contract was subject to Manx law and to a choice of court agreement in favour of the courts of the Isle of Man. The Tribunal however ruled that the case was within the scope of the Brussels I Regulation – albeit like the tribunal itself, the Appeal tribunal does not systematically review the three alternative grounds for domicile of Article 60 of the Jurisdiction Regulation.
Domicile was found to be in Austria, for this is the place where the company was effectively managed from. The UK could claim jurisdiction on the basis of Article 19, were the employee found to habitually work in the UK – quod non.
A classic example of the employment chapter of the JR, with a bit of exotic flavouring (Manx) and, even if not altogether tidy, a correct conclusion on Austrian domicile.
Ceci n’est pas une base Ryanair – The court in Charleroi on ‘place where the employee habitually carries out his work’
The title of this piece is taken from a press release by CNE, the trade union who represented plaintiff – and who provided me with a copy of the judgment for which many thanks. Where does an employee ‘habitually carry out his work’ within the meaning of Article 19 of the Brussels I Regulation? The court at Charleroi needed that to be Charleroi, for it to be able to exercise jurisdiction. Ryanair’s domicile being in Ireland was not contested and no choice of court was made in the contract between plaintiff and the airline. The court referred to ECJ precedent, notably Mulox, Rutten, Weber, Koelzsch and Voogsgeerd. Had the ECJ had jurisdiction in C-533/03 Warbecq v Ryanair, current discussion might not have arisen, one imagines.
Plaintiff suggested a list of considerations which in his view led to Charleroi being the place of habitual carrying out of his work, including: journeys as a ‘cabin service agent’ (steward or stewardess to you and me) always started and ended at Charleroi airport; consequently he had to rent a flat in the Charleroi area; flight times were corresponded to plaintiff via a PC located at the airport; prior to each flight, he had to check in at the Charleroi office; staff issues were dealt with at the airport; equipment was provided from the airport; training and fitness et al tests were carried out at Charleroi.
The court however sided with Ryanair’s contention that its organisation at Charleroi was skeleton only, and that in having organised the work schedule from Dublin, there was no team at Charleroi which had the remit to manage the work schedule or anything else independently from Dublin.
I think Charleroi is missing a trick here: per the ECJ’s case-law, the criterion of the country in which the work is habitually carried out must be given a broad interpretation and must be understood as referring to the place in which or from which the employee actually carries out his working activities. Arguably, the employee’s activities lie at the heart of that analysis: not the employer’s, which is what the court at Charleroi has taken as its main clue.
Appeal is underway.