Richard Grogan on employment law: Jurisdiction in employment cases for cross-border workers



Richard Grogan
Richard Grogan

Employment law solicitor Richard Grogan of Richard Grogan & Associates writes on the wider implications of a European court ruling on cross-border workers.

In the European Court of Justice in joined cases C-168/16 and C-169/16 to rule on the provisions of Regulations 44/2001 and various other regulations. The issue related to jurisdiction over individual contracts of employment.

The opinion of the Advocate General recently issued. The full decision of the ECJ will issue in due course.

The Advocate General concluded that Article 19 (2) (a) Council Regulation No 44/2001 on the Jurisdiction, Recognition and Enforcement of Judgments in Civil and Commercial Matters must be interpreted as meaning that, so far as a worker employed in the international air transport sector as a member of cabin crew is concerned, the “place where the employee habitually carries out his work” cannot be assimilated to the “home base” as defined in Council Regulation 3922/91.

The Advocate General was of the view that the place will be where or from the worker habitually carries out his obligations to his employer. That place must be identified by a National Court in the light of all the relevant circumstances, and in particular:

(a) The place for the worker starts and ends his working days;

(b) The place where the air craft on board which he carries out his work is habitually based;

(c) The place where he is made aware of the instructions communicated by his employer and where he organises his working day;

(d) The place where he is contractually required to live;

(e) The place where an office made available by the employer is situated;

(f) The place which he must attend when he is unfit for work or in the event of disciplinary problems.

While this case related to the issue of those working as cabin crew, which would include pilots, the opinion may have more significant implications. There will be many situations where an employee will work in more than one jurisdiction.

The test set out by the Advocate General may have wider implications in other employment law cases.

A contract of employment which, for example, simply states that an employee will be subject to the law of the United Kingdom but where the employee habitually works in Ireland or where he starts and ends his working days in Ireland or where, if there is a disciplinary matter, it would take place in Ireland these may all be issues which may indicate that the claim actually would have to be made in Ireland would be subject to Irish Law rather than UK Law.

It will be interesting to see the decision of the ECJ when it issues.

  • Richard Grogan is the principal solicitor at Richard Grogan & Associates Solicitors. You can subscribe to the firm’s monthly newsletter at grogansolicitors.ie.