A day care provider, Estro Groep B.V., (‘Estro’) went into pre-arranged (‘pre-pack’) receivership. Immediately afterwards, a large part of its business was taken over by another day care provider, Smallsteps B.V. (‘Smallsteps’). The latter did not offer employment to all of Estro’s employees, taking the position that the takeover did not constitute the transfer of an undertaking. This position was based on the fact that Estro was in receivership at the time of the takeover. According to the Dutch law transposing the Acquired Rights Directive, such takeovers are exempted from the rules on transfers of undertakings. A union and five of the employees whom Smallsteps had not offered jobs, relying on the wording of Article 5(1) of the Directive (“insolvency proceedings which have been instituted with a view to the liquidation of the assets”), claimed that they had become Smallsteps employees. The court referred questions to the ECJ for a preliminary ruling. |


European Employment Law Cases
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Case Reports |
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Keywords | transfer of undertakings |
Authors | Peter Vas Nunes |
AbstractAuthor's information |
Case Reports |
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Keywords | transfer of undertakings |
Authors | Mariann Norrbom |
AbstractAuthor's information |
The Danish Supreme Court recently affirmed that the transfer of a canteen contract to another operator following a tender process did not fall within the scope of the Danish Transfer of Undertakings Act. |
Case Reports |
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Keywords | Differing the monthly wages after the workplace has been moved on to another employer |
Authors | Ph.D Marcin Wujczyk |
AbstractAuthor's information |
Paying employees acquired by way of the transfer of an undertaking less than the transferee’s original staff not discriminatory. The Supreme Court recently came to this conclusion based on a rather daring interpretation of a provision of national law aimed at transposing an EU directive. Although Polish law obligates employers to treat employees who perform the same work equally regardless of personal characteristics, the provision at issue should be read more narrowly. |
Case Reports |
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Keywords | transfer of undertaking, pension |
Authors | Zef Even |
AbstractAuthor's information |
If both the transferor and transferee are affiliated to one and the same mandatory industry-level pension fund, the transferee is liable vis-à-vis that pension fund for pension contributions (premiums) due but not paid to that fund prior to the date of transfer. A judgment to this effect, which was reported in EELC in 2013/35, was recently confirmed on appeal. |
Case Reports |
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Keywords | discrimination, other grounds |
Authors | Dr. Ildiko Ratkai |
AbstractAuthor's information |
The European Court of Human Rights (ECtHR) has recently ruled on a Hungarian law suspending payment of civil servants’ pensions for the period during which they are employed in certain areas of the public sector. The ECtHR found this law to be discriminatory as it breaches Article 14 of the European Convention on Human Rights (ECHR) read in conjunction with Article 1, Protocol 1. Hungary, as the respondent State, is to pay pecuniary and non-pecuniary damages and procedural costs and expenses to the applicant, Mr Gyula Fábián. The judgment was delivered on 15 December 2015 and, if not appealed to the Grand Chamber, will cease to be appealable on 15 March 2016. |
Case Reports |
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Keywords | equal treatment, discrimination, remuneration |
Authors | Nataša Randlová |
AbstractAuthor's information |
The employer may unilaterally stipulate or agree a salary with an employee that goes beyond the equal treatment standards, to the employee’s benefit if there is a material reason. The reason must either represent a competitive advantage compared to other employees, or the unequal treatment must be a substantial requirement necessary for the particular work. |
Case Reports |
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Keywords | sex discrimination |
Authors | Gabriella Ormai and Péter Bán |
AbstractAuthor's information |
In accordance with EU law, the prohibition against gender-based discrimination (in this case: dismissal relating to pregnancy) cannot be limited to employment relationships as defined in national law: it must also apply to other types of legal relationship, where one party provides services to another party for consideration, for an open-ended period of time under the supervision of a principal. |
Case Reports |
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Keywords | associative age discrimination |
Authors | Florence Chan |
AbstractAuthor's information |
Mr Abrams was a member of a limited liability partnership (LLP) and was due to retire. For tax reasons, shortly before retirement Mr Abrams decided to set up a limited company to take his place as a member of the LLP. This was accepted by the LLP. Mr Abrams’s employment by the LLP was stopped and he no longer had a continuing contractual relationship with it. The limited company, as a member of the LLP, was entitled to receive the profit share that Mr Abrams would have received had he continued as a member. It was also agreed that this limited company would supply the services of an appropriate fee-earner to the LLP (which was, in practice, Mr Abrams). |
Case Reports |
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Keywords | sexual harassment |
Authors | Panayiota Papakyriacou |
AbstractAuthor's information |
An employee’s behaviour during the investigation of a sexual harassment complaint that she had made against her manager was a crucial factor in the Court’s decision to dismiss her application for damages for unlawful termination and discrimination. |
Case Reports |
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Keywords | associative victimisation, degree of association required in associative discrimination, no reasonable prospect of success |
Authors | Anna Bond |
AbstractAuthor's information |
The Employment Appeal Tribunal (‘EAT’) has allowed a claim of ‘associative victimisation’ to proceed, reversing an Employment Tribunal (‘ET’) judge’s decision to strike it out. Victimisation occurs where someone is subjected to a detriment because of a ‘protected act’ (such as alleging discrimination). In this case, the claimant claimed he had been subjected to a detriment because someone else associated with him had alleged discrimination. The second ET judge to hear the case held that there was not a close enough connection between the claimant and those who made the allegation of discrimination, and struck out the claim. The EAT held that the judge was wrong to find that Mr Thompson was required to show some particular relationship to the person whose protected act was relied upon, and in fact the association could be entirely in the mind of the employer. Association will be a question of fact in each case. |
Case Reports |
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Keywords | Fixed-term discrimination |
Authors | Helen Coombes |
AbstractAuthor's information |
The Employment Appeal Tribunal (‘EAT’) held that a university lecturer’s complaints of less favourable treatment over a series of fixed term contracts were sufficiently linked to amount to ‘a series of similar acts’ and therefore could fall within the time limit of three months for bringing a claim in the Employment Tribunal. |
Case Reports |
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Keywords | employment status |
Authors | Charles Mathieu |
AbstractAuthor's information |
An ‘independent contractor’ working for a company in a subordinate relationship should be considered as a de facto employee. In such a situation, the company and its legal representatives can be held liable for ‘concealed work’ and be subject to criminal penalties. |
Case Reports |
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Keywords | unlawful dismissal |
Authors | Michel Molitor |
AbstractAuthor's information |
The compensation for an employee who is a victim of unlawful dismissal should be as comprehensive as possible, but only harm that is directly linked to the dismissal should be compensated. Material damage suffered by an employee in a senior position may include benefits such as profit shares received in his or her position as an equity partner. In this case, the Court of Appeal ordered a firm to pay a former employee the exceptional amount of more than one million Euros in compensation for wrongful dismissal. |
Case Reports |
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Keywords | paid leave |
Authors | Paul Schreiner and Dagmar Hellenkemper |
AbstractAuthor's information |
An employee who does not recover from illness during the calendar year in which he accrues paid leave (the ‘leave year’) and who continues to be incapable of taking that leave, loses the right to take it 15 months after the end of the leave year, i.e. on March 31 of the second calendar year following the leave year. If his employment terminates within that 15 month period, his entitlement to leave converts into a claim for payment in lieu, and as such, can be claimed by his heirs if he dies. |
Case Reports |
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Keywords | unfair dismissal |
Authors | Orla O’Leary |
AbstractAuthor's information |
Under Irish law, an employee claiming compensation for constructive dismissal bears a high burden of proof. Failure to exhaust the employer’s grievance procedure before bringing such a claim to court is generally a recipe for failure. However, a CEO who brought such a claim without first going through the grievance procedure was recently awarded record compensation of € 1.25 million. |
Case Reports |
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Keywords | parental leave – dismissal protection |
Authors | Christina Hießl |
AbstractAuthor's information |
Austrian law permits the dismissal of an employee during parental leave only in cases where the employer cannot reasonably be expected to continue the contractual relationship. The colour of a hair ribbon does not justify the termination of a young father’s employment as a bus driver. |
Case Reports |
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Keywords | dismissal, suspension |
Authors | Inga Klimašauskiené |
AbstractAuthor's information |
An employer was ordered to reinstate an employee they had wrongly dismissed. The employer reinstated him, putting him back on the payroll, but simultaneously placed him on involuntary garden leave. The employee sought and got a second court order that this was not real reinstatement. The employer was ordered to allow the employee to return to the office and perform his habitual work there on pain of a penalty of € 100 for each day of non-compliance. The employer challenged this penalty, but without success. |
Case Reports |
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Keywords | human rights |
Authors | Peter Vas Nunes |
AbstractAuthor's information |
A 60-year old widow with a house but without income other than a small widow’s pension has successfully challenged legislation that moved the qualification age for state pension benefits from 65 to 67. A court has found that, in her particular case, the legislation constitutes an “individual and excessive burden” within the meaning of ECtHR case law on the First Protocol to the ECHR. The government was ordered to start paying the widow state pension from age 65 despite and contrary to the wording of the law. |
ECJ Court Watch |
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Keywords | social dumping |
ECJ Court Watch |
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Keywords | Discrimination – Sanction |
ECJ Court Watch |
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ECJ Court Watch |
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Keywords | insolvency |
ECJ Court Watch |
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Keywords | free movement – social insurance |
ECJ Court Watch |
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Keywords | age discrimination |
ECJ Court Watch |
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Keywords | free movement |
ECJ Court Watch |
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Keywords | working time |
ECJ Court Watch |
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Keywords | insolvency protection |
ECJ Court Watch |
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Keywords | free movement |
ECJ Court Watch |
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Keywords | sex discrimination |
ECJ Court Watch |
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Keywords | age discrimination |
ECJ Court Watch |
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Keywords | nationality discrimination |
ECJ Court Watch |
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Keywords | free movement – social insurance |
ECJ Court Watch |
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Keywords | fixed term work |
ECJ Court Watch |
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Keywords | free movement – social insurance |
ECJ Court Watch |
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Keywords | free movement – social insurance |
ECtHR Court Watch |
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Keywords | Religious Discrimination |
ECtHR Court Watch |
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Keywords | Fundamental Rights |