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Supporting members and fighting poor employment practices

by Simon Williams Legal Committee Chair

As Chair of BALPA’s legal committee I get to assist people through some tricky times. We support BALPA members though disciplinary hearings, employment tribunals and court cases. Every case is different- some affect just one member, others can have an impact on all workers, in aviation and beyond.

This week is an example of a case that may have implications for others beyond the single person bringing the claim. Our team is at an Employment Tribunal that aims to shine a spotlight on a problematic employment practice in the aviation industry and help clarify the status and rights of so called ‘self-employed’ pilots and agency workers.  

We have worked with Jason Lutz, a contractor pilot, to prepare for the hearing and build his case. He is arguing that he should have been classed as a ‘crew member’ as well as a ‘worker’ for the three-year period that he was engaged by MCG and should therefore have received a basic entitlement to paid annual leave. In addition, he also claims 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.

BALPA has supported Jason Lutz thoughout the case. Now we are awaiting the results of the case which will have an impact not only on Jason Lutz, but could also have profound implications across the aviation sector.  

Some background to self-employment in aviation 

Whereas historically agency workers were used to manage seasonal variations in the number of flights, the use of agency workers has grown, in some cases to the complete exclusion of directly employing pilots.  

In many cases today, pilots are required to set themselves up as self-employed or work through an agency. On paper they are self-employed, but in practice, they have little to no control over how, when and where to fly. They have no control over their hours, cost or pricing, neither do they own the aircraft they fly or invest in flight planning software or manuals. Self-employed pilots don’t ‘advertise’ their services to attract clients, neither can they work for more than one airline. Moreover, airlines are obliged by EASA regulations to monitor and supervise them continuously. All this points to the fact that the duties undertaken by commercial line pilots are simply incompatible with the status of self-employed, no matter what the formal arrangements are. BALPA believes that because of the extent of the subordination that exists in reality, pilots should not be denied basic employment protection rights which are afforded to workers and crew members.  

Some details about this case:  

Jason Lutz was engaged as a contractor pilot through MCG from October 2017 and was a Ryanair First Officer based at Stansted until 13th January 2020 when the relationship with McGinley was terminated by his dismissal.  

Jason Lutz applied to Ryanair to be employed as a pilot. Upon successfully completing the Ryanair selection process, he was contacted by MCG who notified him that he had been successful. In order to fly as a pilot for Ryanair, it was an express stipulation imposed upon him by MCG that he had to set up a limited company. He was eventually installed in a pre-existing company, Dishford Port Ltd (‘Dishford’), of which he was required to be a director and an employee. Mr Lutz was also required to enter into a tripartite contractual agreement between him, Dishford, and MCG. MCG in turn, contracted to provide his services as a pilot to its client, Ryanair. Mr Lutz was given no choice as to the model or business structure under which he flew for Ryanair. 

Mr Lutz therefore argues that he was a crew member and a worker engaged by MCG, and that when MCG supplied him to work for Ryanair, he was an agency worker. As such he should have been able to access certain benefits and rights.  

He argues that over the period that he operated as a Ryanair pilot, he was subordinate to MCG who exercised sufficient control over him to mean he should have qualified for basic employment rights as a worker and crew member. He also claims that MCG supplied him to its client, Ryanair to carry out duties under its supervision and direction such as to classify him as an agency worker.  

While this is a case involving one pilot, BALPA knows that there are many others working in similar arrangements. The judgment in this case could have profound implications across the aviation sector.