This editorial is written the day after 17.4 million Britons and Northern Irish (51.9% of the electorate, including Gibraltar) voted to become the second country to leave the EU (Greenland, which joined the EC simultaneously with the UK in 1973, left in 1985 following a 53% referendum vote in 1982, but are rumored to be reconsidering). Assuming Parliament goes along with the outcome of the referendum and that the UK sends the Council of Ministers an Article 50 notice, we will be breaking up. As Neil Sedaka reminded us in 1962, this is a hard thing to do.
The remainder of the EU has a lot to learn from the UK in the field of employment law. Let me single out one area in which the British lead the way: equal treatment. As this issue of EELC illustrates, equal treatment or, if you will, discrimination, has become the main topic of the cases reported in EELC. No less than eight out of the 16 case reports published in this issue deal with discrimination (including harassment). Where transfer of undertakings was the most written on topic when EELC was launched in 2009, discrimination is now the hottest issue. Not only have the British been at the forefront of the development of this recent branch of employment law, their thinking on the subject is at a more fundamental level than that in most other Member States. This edition of EELC contains two good examples of what I mean: Donkor v Royal Bank of Scotland and Naeem v Secteraty of State for Justice. How likely is it that continental employee would bring a discrimination claim, as did Mr Donkor, on account of not having been selected for redundancy? Which continental court has analyzed the concept of indirect discrimination as deeply as the Employment Tribunal, EAT and Court of Appeal (three instances!) did in Naeem? Courts in at least some other Member States, if not all, regularly skip the process of identifying the (real or hypothetic) comparator, a process British courts apply rigorously. I certainly hope that the readers of EELC will be able to benefit from the insights of British courts on matters of discrimination even after the UK has left the EU.
Fortunately, the Irish are staying in the EU, so that ECJ judgments will continue being published in the global lingua franca.
This edition of EELC contains reports of national judgments that are certain to interest employment law professionals all over Europe: on age, disability and racial discrimination, harassment, non-competition, self-employment, protection of union leaders, freedom of speech, redundancy selection, maternity leave, transfer of undertakings and sickness-related rights.
This is my last editorial. I too am breaking up. My task as editor of EELC is being taken over by my distinguished Rotterdam colleague Zef Even.
Peter Vas Nunes, editor