We live in a world that changes constantly. Sometimes we see changes coming, many times we don’t. Ample polls stated that Great Britain would continue to be part of the EU – and even more polls were decisive that Clinton was going to be the next president of the USA. We all know that these events turned out differently. Change is unstoppable.
In the past, an employee entered into employment with an employer, worked full time based on a contract of indefinite duration, performed his work at the premises of the employer – quite often a factory – and remained employed by the same employer up to pensionable age. Retirement was normally set at an age whereby the employee only had to survive a few years on his pension. It all was very neat and tidy.
This has changed quite dramatically. Many workers do not have an employment agreement, let alone an agreement for an indefinite period of time. Many workers do not work in a factory anymore, but sometimes even at home. A full time employment agreement and tenure with one and the same employer up to pensionable age is very much the exception. This raises questions about when an employment agreement exists – and when not. This is not only relevant from a national point of view, but also from an EU perspective, as normally protection is granted only to employees. Therefore, assessing whether or not there is an employment agreement is key. Interesting in this regard is the decision of the Court of Appeal in the UK which held that, if an individual is engaged on an assignment-by-assignment basis, while having the freedom to turn down work when it is offered, that person is likely not to be under a regime of subordination whilst at work and is therefore not likely to be an employee. On the other hand, the Norwegian Supreme Court did offer employment protection to an individual who provided care and support to a child in need, even though the work was performed at the home of that individual. Interesting developments that are probably relevant to all Member States.
In this issue of EELC, discrimination remains a hot topic in many Member States. The Austrian Supreme Court has ruled that the general prohibition of Muslim face-veils by an employer does not constitute forbidden discrimination. On the other hand, the Employment Appeal Tribunal in the UK found that a teacher who refused to separate from her husband following his conviction for sexual offences based on (her) religious reasons, could not be dismissed, as this would be indirectly discriminatory. In The Netherlands, the courts are considering what the consequences are of the refusal of an employer to offer a new employment contract upon the expiry of a fixed term contract for discriminatory reasons. In Germany, a claim that a severely disabled person can only be made redundant after the employer has obtained a permit to do so was deemed only to apply to cases where the employment relationship was governed by German law.
This and much more can be found in this magazine. Enjoy!
Zef Even, editor