In four recent cases, the Danish Eastern High Court addressed the question of whether it was indirect disability discrimination to dismiss four reduced hours employees (fleksjobbere) as part of a cost-saving process because they lacked essential core skills. The High Court ruled in favour of the employer, stating that the employer was not required to maintain the employees’ employment as it would be incompatible with the new demands for qualifications caused by the cutbacks. Consequently, the dismissals did not constitute indirect disability discrimination.

An Employment Tribunal (ET) decision involving an advertising agency has highlighted the dangers for employers of taking an overly aggressive approach to reducing gender pay gaps. It also provides a reminder that all discrimination is unlawful, even where the victims are from a historically privileged group.

The Irish High Court has determined that, pursuant to the definitions of ‘employment contract’ and ‘fixed-term employee’ in the Protection of Employees (Fixed-Term Work) Act 2003 (the ‘2003 Act’), a permanent employee temporarily upgrading to a more senior role on a fixed-term basis, was entitled to protection under the 2003 Act as a fixed-term employee despite the fact that he had the right to revert to his substantive terms and conditions as a permanent employee. The Court held that Council Directive 1999/70/EC on fixed-term work (the ‘Directive’) was not only concerned with an employee’s entitlement to continued employment, but also the nature, quality and terms and conditions of that employment. While Member States have the discretion to provide more favourable treatment to a broader category of employees than the Directive required, they could not define terms left undefined in the Directive or framework agreement on fixed-term contracts so as to arbitrarily exclude certain categories of workers from protection as ‘fixed-term workers’.

The Arnhem Court of Appeal has examined whether an employee was reasonably able to take leave, applying the ECJ’s Max Planck and Kreuziger judgments. According to the Court, the employer did not violate its obligation to inform the employee regarding the lapse of the right to paid annual leave. The Court stated that the employee was reasonably able to take leave, despite being incapacitated for work due to sickness. The Court ruled that the employee was not entitled to an allowance in lieu of untaken paid annual leave, as the right to such leave had lapsed.

The Dolj Tribunal has ascertained that a former employee, while acting as school director, by not fulfilling her obligations to schedule the annual leave of school teachers, including herself, cannot claim against the school as the employer for not providing the opportunity to take the annual leave or to inform of the possibility of losing such right. Furthermore, such actions of the former director will lead to the loss of the right to request compensation in case of termination of employment.

Building upon the ECJ case law qualifying stand-by time with significant availability obligations of volunteer firefighters as working time, the Belgian Court of Cassation has upheld a system of compensation by which stand-by time pays less than regular working time.

The Court of Appeal (CA) has allowed an appeal by HM Revenue & Customs (HMRC) against a decision that there was insufficient mutuality of obligation and control for football referees to be treated as employees for tax purposes.

A court’s order to a trade-union federation to expel a grassroots union of working prisoners because of a statutory ban on their unionization did not violate article 11-1 of the Charter.

States must protect the physical and psychological integrity of individuals from others, including setting up a legal framework with that aim in an adequate way.

Whether stand-by time in a permanent stand-by system qualifies as ‘working time’ must be determined by an overall assessment of all the facts, with a focus on the constraints imposed on the worker. The ECJ’s summary of the case is available on: https://curia.europa.eu/jcms/upload/docs/application/pdf/2021-11/cp210201en.pdf.

Directive 2008/104 also applies if employees are assigned to the European Institute for Equality between Men and Women (EIGE), an EU institution. Unfortunately, no English translation of the case is available yet.

Directive 2003/88 precludes provisions which deny a worker an allowance in lieu for untaken leave when his employment relationship ends, even if the employee terminated it without good cause.

A (host) Member State cannot make the exclusion of pension rights from bankruptcy estate dependent on obtaining prior tax approval in that country, if the scheme has already been tax approved in the home Member State, unless there is an overriding reason of public interest to do so. The ECJ’s summary of the case is available on: https://curia.europa.eu/jcms/upload/docs/application/pdf/2021-11/cp210200en.pdf.

If a worker takes annual leave when he is incapacitated for work due to illness, he is entitled to his full salary rather than a reduced amount which he is entitled to during illness.

The court settles various technicalities on the interpretation of Regulation 883/2004.