Under EU Regulations, an employee may sue an employer either in the courts of the member state where the employer is domiciled, or in the courts of the place where the employee habitually carries out their work.

In Nogueira and others v Crewlink Ltd, the Advocate-General has given an Opinion which provides useful guidance on where workers who perform their work in multiple European countries will be considered to habitually carry out their work.

Ms Nogueira and other claimants were all employed by Crewlink Ltd, an Irish company, and were assigned to work for Ryanair as cabin crew. Their contracts of employment were in English, stated to be governed by Irish law and contained a choice of forum clause giving jurisdiction to the Irish courts. The contracts also stated that the employees' services were deemed to be performed in Ireland because they were carried out on aircraft registered in Ireland. However, their 'home base' was designated as Charleroi airport near Brussels, and they were contractually obliged to live less than one hour away. They all started and ended their day at the airport, where they also received their instructions and reported sickness absence.

When their employment ended, the employees brought claims in the Belgian courts for unpaid wages, overtime pay and severance pay. Their employer argued that the Belgian courts had no jurisdiction and that the Irish courts must determine the claims, whereas the employees contended that they had no link with Ireland since they had never lived or worked there. The ECJ was asked to determine how 'the place where the employee habitually carries out their work' should be interpreted for mobile workers in the international air transport sector.

The Advocate-General has now given his Opinion that the place where an employee habitually carries out their work is the place where, or from which, the employee principally carries out their obligations for the employer. This should be decided by taking into account a number of relevant factors:

  • the place where the employee starts and ends their working day;
  • where their 'work tools' (in this case, the aircraft) are habitually based;
  • where the employee is made aware of instructions communicated by the employer and organises their working day;
  • where they are contractually required to live;
  • where an office made available by the employer is situated; and
  • where the employee attends if unfit for work or in the event of disciplinary problems.

It will be for the Belgian courts to apply these factors and reach a final view. However, in the Advocate-General's opinion, the facts of this case unequivocally point to the Belgian courts having jurisdiction. He also stated that the nationality of the aircraft and whether the cabin crew were employed by Crewlink or Ryanair were not directly relevant to determining where they habitually carried out their work.

Although this case relates specifically to the international air transport sector, the Opinion is in line with other case law on jurisdiction. The Opinion of an Advocate-General is not binding on the ECJ, but it is usually followed. Employers with employees who work in multiple member states should note that their choice of jurisdiction in the employment contract will not necessarily be the correct one when the factors listed above are taken into account.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.