The Force of a Jurisdiction Clause
An Advocate General of the European Court of Justice recently considered the issue of where an employee habitually works and the impact of a “choice of jurisdiction” clause in the employee’s contract. When issuing his opinion on the meaning of the “place where the employee habitually carries out his work” as set out in the 2001 Brussels Regulation, regarding a case concerning cabin crew working for Ryanair, the AG confirmed that the factual position would override the contractual provision.
In this case, the cabin crew’s contracts of employment stipulated a “homebase” as Charleroi airport near Brussels but the jurisdiction (choice of forum) clause conferred jurisdiction on the Irish Courts. The employees routinely began and ended their working day at Charleroi airport, received their instructions there and were required to live within 1 hour of the airport.
When asked to determine the “place of employment”, the AG determined that since the cabin crew performed their work in multiple member states, it was not possible to identify a single place where their obligations were carried out. The AG considered the relevant case law under the Brussels Regulation, which provides that defendants should be sued in their country of domicile, regardless of their nationality, unless an exception exists such as in the case pertaining to individual employment contracts. When concerning individual employment contracts, an exception is in place to protect the employee as the “weaker party” by enabling the employee to sue the employer either in the courts where the employer is domiciled or the courts in which “the place where the employee habitually carries out his work”, or in the courts for the last place where he did so.
The AG concluded that it was possible for the national court to identify the “place from which” the employees carried out their obligations, and this factually pointed to the Belgian courts given that Charleroi airport was the place from which the employees were principally carrying out their work. The AG stated that in his view, the nationality of the aircraft on which the Claimants worked was irrelevant for the purposes of determining the habitual place of work.
This of course is only the opinion of the AG and the ECJ may elect to follow a different construction when ultimately determining the issue. Nevertheless, this serves as an important reminder to employers who “elect” a place of jurisdiction, usually with a view to their own convenience. Employers are reminded that case law requires that “jurisdiction” be determined with regards to factors including where the employee spends most of their working time, where they organise their work activities, and where they start and end their working day, and is not based solely on the employer’s choice although this may be a factor which would be considered.