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European Employment Law Cases


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Issue 4, 2016 Expand all abstracts

    The Court of Appeal has given guidance on how to determine employment status in discrimination cases where the claimant is engaged on a case-by-case basis. The judgment confirms that the lack of mutual obligations between the putative employer and employee between assignments can be a relevant factor. If an individual is engaged on an assignment-by-assignment basis, with the freedom to turn down work when it is offered, this may imply a lack of subordination during the periods of work. The absence of an overarching ‘umbrella’ contract between assignments may therefore be relevant when determining whether an individual is protected by discrimination law.


Tom McEvoy
Tom McEvoy is a Trainee Solicitor at Lewis Silkin LLP: www.lewissilkin.com.
Article

2016/51 Separate discrimination claims relating to an unlawful dismissal now possible (PL)

Keywords Unlawful termination, Unlawful discrimination
Authors Dr. Marcin Wujczyk
AbstractAuthor's information

    It is possible to make a claim for unlawful discrimination in respect of termination of an employment contract even if no claims has been made for unlawful termination.


Dr. Marcin Wujczyk
Dr. Marcin Wujczyk is attorney-at-law, Associated Professor at Jagiellonian University, specialising in labour law, partner at Ksizek Bigaj Wujczyk.
Article

2016/52 Pregnancy and job offers (NL)

Keywords Gender, Pregnancy, Dismissal
Authors Anton van Leeuwen
AbstractAuthor's information

    A discriminatory refusal to offer an employee a new employment contract upon expiry of a fixed term contract is not discriminatory dismissal but a discriminatory refusal to give access to employment. The employer is liable for emotional damages.


Anton van Leeuwen
Anton van Leeuwen is an attorney at SteensmaEven in Rotterdam.

    The Austrian Supreme Court has ruled that the general prohibition of Muslim face veils by an employer does not constitute unlawful discrimination. In this landmark decision, Austria’s Supreme Court expresses the view that an uncovered face is a prerequisite to proper communication. Thus, termination of employment by reason of an employee’s refusal to come to work unless she can wear a face veil is not unlawful under the Austrian Equal Treatment Act. Whether this rule also applies to other religious clothing such as headscarves remains to be seen.


Hans Georg Laimer
Hans Georg Laimer is a partner at zeiler.partners Rechtsanwälte GmbH.

Lukas Wieser
Lukas Wieser is an attorney at law at zeiler.partners Rechtsanwälte GmbH.

    The Employment Appeal Tribunal has upheld an appeal against the finding that a committed Christian teacher who refused to separate from her husband following his conviction for sexual offences would have been dismissed regardless of her faith and therefore such a dismissal was not indirectly discriminatory. The EAT found instead that the Claimant was presented with the choice of having to separate from her husband or be dismissed which subjected people who have a faith-based commitment to marriage to a particular disadvantage.


Laurence Mills
Laurence Mills is an associate at Lewis Silkin LLP: www.lewissilkin.com.
Article

2016/55 New Supreme Court decision on the distinction between independent contractors and employees (NO)

Keywords Independent contractors, Employees
Authors Marianne Jenum Hotvedt and Anne-Beth Engan
AbstractAuthor's information

    EU employment protection is usually limited to “employees”, meaning that independent contractors are not covered. However, EU law often leaves it to Member States to determine the meaning of employee. The directives regulating transfers of undertakings, collective redundancies, written working conditions, information and consultation, part-time work, temporary agency workers etc. are all examples of protection covering only ‘employees’ as defined by each Member State.
    Consequently, the interpretation of ‘employee’ at the national level determines whether protection in EU law applies. This case report concerns the distinction between an independent contractor and employee. The question was whether a support worker for a child needing extra care and support should be considered as employed by Ålesund municipality. The majority (4-1) found that the support worker was an employee. The case illustrates how the notion of employee in Norwegian law adapts to new ways of organising work and may be of interest in other jurisdictions.


Marianne Jenum Hotvedt
Marianne Jenum Hotvedt is a postdoctoral fellow at the Department of Private law, University in Oslo. In 2015, she got her Ph.D. on the thesis ‘The Employer Concept’.

Anne-Beth Engan
Anne-Beth Engan is an associate with Advokatfirmaet Selmer DA in Oslo.
Article

2016/56 Constitutional Court prohibits suspension pending disciplinary investigation (RO)

Keywords Suspension, Disciplinary investigation
Authors Andreea Suciu
AbstractAuthor's information

    Article 52(1)(a) of the Romanian Labour Code allows an employer to suspend, without pay, an employee under a disciplinary investigation. However, the Constitutional Court has recently ruled Article 52(1)(a) unconstitutional.


Andreea Suciu
Andreea Suciu is Head of Employment & Pensions with Noerr in Bucharest, www.noerr.com.
Article

2016/57 No compensation for an invalid non-compete clause where no harm shown (FR)

Keywords Non-compete, Damage compensation
Authors Claire Toumieux and Susan Ekrami
AbstractAuthor's information

    An employee who could not prove any harm resulting from an invalid non-compete clause in his employment contract could not obtain damages.


Claire Toumieux
Claire Toumieux and Susan Ekrami are a partner and associate with Allen & Overy LLP in Paris, www.allenovery.com.

Susan Ekrami

    In one of the first high-profile cases under the Protected Disclosures Act 2014 (i.e. whistleblowing legislation), two employees have successfully secured an injunction in the Circuit Court which prevents their dismissal.


Lucy O’Neill
Lucy O’Neill is an associate at Mason Hayes & Curan, www.MHC.ie.

    This case confirms that if both the transferor and transferee are affiliated to the same mandatory industry-level pension scheme, following the transfer, the transferee is liable for due but unpaid pension contributions dating from before the date of the transfer.


Zef Even
Zef Even is a lawyer at SteensmaEven, www.steensmaeven.com.
Article

2016/60 Special protection for disabled employees against termination of employment – international apsects (GE)

Keywords Disabled employees, Invalid termination, International aspects
Authors Paul Schreiner and Nina Stephan
AbstractAuthor's information

    An employee may bring a claim for invalid termination before the German Labour courts, irrespective of the law governing the employment relationship. In Germany, it is only possible for an employer to dismiss a severely disabled person if the competent state authority grants a permit enabling it to do so. However, this requirement is limited to those with employment agreements under German Law.


Paul Schreiner
Paul Screiner and Nina Stephan are, respectively, a partner and an associate with Luther Rechtsanwaltgesellschaft mbH, www.luther-lawfirm.com.

Nina Stephan

    The Industrial Disputes Court considered certain substantive and procedural issues in the context of a claim for sexual harassment and victimisation. This case provides a good illustration of the principles the tribunals apply when examining sexual harassment cases and how these are interpreted by Cypriot employment courts.


Anna Praxitelous
Anna Praxitelous is a lawyer with George Z. Georgiou & Associates LLC, www.gzg.com.cy. This article was originally edited by, and first published on, www.internationallawoffice.com.
ECJ Court Watch

ECJ 14 September 2016, case C-596/14 (De Diego Porras), Fixed-term work

Ana de Diego Porras – v – Ministerio de Defensa

Keywords Fixed-term work
Abstract

    Fixed-term workers must be paid the same severance compensation as comparable permanent workers.

ECJ Court Watch

ECJ 14 September 2016, case C-16/15 (Pérez López), Fixed-term work

María Elena Pérez López – v – Servicio Madrileño de Salud (Comunidad de Madrid)

Keywords Fixed-term work
Abstract

    Successive fixed-term contracts cannot be justified by legal provisions allowing renewal in order to ensure the provision of certain services of a temporary, auxiliary or extraordinary nature when, in reality, there is no obligation to create additional permanent posts in order to bring an end to the structural use of fixed-term work to fill permanent posts.

ECJ Court Watch

ECJ 14 September 2016, joined cases C-184/15 (Martínez Andrés) and C-197/15 (Castrejana López), Fixed-term work

Florentina Matínez Andrés – v – Servicio Vasco de Salud and Juan Carlos Castrejana López – v – Ayuntamiento de Vitoria

Keywords Fixed-term work
Abstract

    The penalty for abuse of successive fixed-term contracts must be available to all victims of such abuse, including those employed under administrative, rather than employment, law. National law may not require a victim to bring a new action before a different court in order to determine the penalty.

ECJ Court Watch

ECJ 21 September 2016, case C-614/15 (Popescu), Fixed-term employment

Rodica Popescu – v – Directia Sanitar Veterinara si pentru Siguranta Alimentelor Gorj

Keywords Fixed-term work
Abstract

    The fact that veterinary health inspections are non-permanent in nature does not justify successive fixed-term contracts unless the renewal of those contracts is in fact aimed at covering a specific need in the relevant sector, without the underlying reason being budgetary considerations.

ECJ Court Watch

ECJ 21 September 2016, case C-631/15 (Alvarez Santirso), Fixed-term employment

Carlos Alvarez Santirso – v – Consejería de Educación, Cultura y Deporte del Principado de Asturias

Keywords Fixed-term work
Abstract

    Spanish law which reserves participation in evaluation plans for teachers contravenes Directive 1999/70.

ECJ Court Watch

ECJ (Grand Chamber) 18 October 2016, case C-135/15 (Nikiforidis), Applicable law

Republik Griechenland – v – Grigorios Nikiforidis

Keywords Applicable-law
Abstract

    The Rome I Regulation only applies to contracts concluded before 17 December 2009 insofar as the contract has undergone major change afterwards. It precludes overriding mandatory provisions other than those of the forum court.

ECJ Court Watch

ECJ 10 November 2016, case C-548/15 (De Lange), Age discrimination – tax

J.J. de Lange – v – Staatssecretaris van Financiën

Keywords Age discrimination, Tax
Abstract

    Tax law may, in principle, allow persons aged under 30 to deduct from their taxable income more vocational training expenses than older persons.

ECJ Court Watch

ECJ 15 November 2016, case C-258/15 (Salaberria Sorondo), Age discrimination

Gorka Salaberria Sorondo – v – Academia Vasca de Policía y Emergencias

Keywords Age discrimination
Abstract

    Directive 2000/78 does not preclude requiring candidates for the position of police officer to be under 35 years of age. The ECJ distinguishes from its judgment in Vital Pérez.

ECJ Court Watch

ECJ 17 November 2016, case C-216/15 (Ruhrlandklinik), Temporary agency work

Betriebsrat der Ruhrlandklinik gGmbH – v – Ruhrlandklinik gGmbH

Keywords Temporary agency work
Abstract

    The definition of ‘worker’ in Directive 2008/104 on temporary agency work includes those who are similar to employees, without having employee status under domestic law.

ECJ Court Watch

Case C-306/16. Working time

António Fernando Maio Marques da Rosa – v – Varzim Sol – Turismo, Jogo e Animação, S, reference lodged by the Portuguese Tribunal da Relação do Porto on 30 May 2016

Keywords Working time
ECJ Court Watch

Case C-354/16. Part-time work and sex discrimination

Ute Kleinsteuber – v – Mars GmbH, reference lodged by the German Arbeitsgericht Verden on 27 June 2016

Keywords Part-time work, Gender discrimination
ECJ Court Watch

Case C-359/16. Social security

Ömer Altun, Abubekir Altun, Sedrettin Maksutogullari, Yunus Altun, Absa NV, M. Sedat BVBA, Alnur BVBA – v – Openbaar Ministerie, reference lodged by the Belgian Hof van Cassatie on 24 June 2016

Keywords Social security
ECJ Court Watch

Case C-409/16. Sex discrimination

Ypourgos Esoterikon, Ypourgos Paideias kai Thriskevmaton – v – Maria-Eleni Kalliri, reference lodged by the Greek Symvoulio tis Epikrateias on 22 July 2016

Keywords Gender discrimination
ECJ Court Watch

Case C-414/16. Religious discrimination

Vera Egenberger – v – Evangelisches Werk für Diakonie und Entwicklung e.V., reference lodged by the German Bundesarbeitsgericht on 27 July 2016

Keywords Discrimination, Religion
ECJ Court Watch

Case C-415/16. Working time

David Fernando Leal da Fonseca – v – Varzim Sol – Turismo, Jogo e Animação, SA, reference lodged by the Portuguese on 27 July 2016

Keywords Working time
ECJ Court Watch

Case C-416/16. Transfers of undertakings

Luís Manuel Piscarreta Ricardo – v – Portimão Urbis, EM, SA – in liquidation, Município de Portimão, and EMARP – Empresa Municipal de Águas e Resíduos de Portimão, EM, SA, reference lodged by the Portuguese Tribunal Judicial da Comarca de Faro on 27 July 2016

Keywords Transfer of Undertaking
ECJ Court Watch

Case C-429/16. Collecive redundancy

Małgorzata Ciupa and Others – v – II Szpital Miejski im. L. Rydygiera w Łodzi, now Szpital Ginekologiczno-Położniczy im dr L. Rydygiera Sp. z o.o. w Łodzi, reference lodged by the Polish Sąd Okręgowy w Łodzi on 2 August 2016

Keywords Collective redundancy
ECJ Court Watch

Case C-432/16. Maternity

Carolina Minayo Luque – v – Quitxalla Stars, S.L., and Fondo de Garantía Salarial, reference lodged by the Spanish Tribunal Superior de Justicia de Cataluña on 2 August 2016

Keywords Maternity leave
ECJ Court Watch

Case C-442/16. Free movement

Florea Gusa – v – Minister for Social Protection, Attorney General, reference lodged by the Irish Court of Appeal on 8 August 2016

Keywords Free movement
ECJ Court Watch

Case C-443/16. Fixed-term employment

Francisco Rodrigo Sanz – v – Universidad Politécnica de Madrid, reference lodged by the Spanish Juzgado de lo Contencioso-Administrativo de Madrid on 8 August 2016

Keywords Fixed-term work
ECJ Court Watch

Case C-451/16. Sex discrimination

MB – v – Secretary of State for Work and Pensions, reference lodged by the Supreme Court of the United Kingdom on 12 August 2016

Keywords Gender discrimination