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European Employment Law Cases


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Issue 2, 2017 Expand all abstracts
Article

2017/11 Transposition of the ‘enforcement’ directive into Belgian law

Keywords Private international law, posting of workers and expatriates, Free movement, minimum wage/social dumping
Authors Gautier Busschaert
AbstractAuthor's information

    This article briefly describes the main measures adopted by Belgium in transposing the EU Directive 2014/67 of 15 May 2014 into national law.


Gautier Busschaert
Gautier Busschaert is a lawyer at Van Olmen & Wynant in Brussels.
Article

2017/12 Court of Appeal rejects argument that Christmas strikes are unlawful under EU law (UK)

Keywords Collective labour law, industrial actions, unions
Authors Vince Toman and David Hopper
AbstractAuthor's information

    The Court of Appeal has confirmed that industrial action called with the object or purpose of infringing the cross-border freedom to establish and receive services would be unlawful. It rejected the argument that industrial action would be unlawful if it made it unattractive for foreign companies to operate in the UK or if cross-border services might potentially be disrupted. These wider tests would be inconsistent with European case law on the Treaty on the Functioning of the European Union (‘TFEU’) and would be incompatible with proper protection of the right to strike.


Vince Toman

David Hopper
Vince Toman and David Hopper are respectively Head of the Trade Union and Collective Employment Law Group and Senior Associate at Lewis Silkin LLP.

    This case report concerns the lawfulness of a notified boycott against Holship Norge AS (‘Holship’) by the Norwegian Transport Workers’ Union (‘NTF’). In its decision, the Supreme Court considered whether the collective agreement exemption from competition law could be applied, and whether the boycott was unlawful pursuant to the right to freedom of establishment established by Article 31 of the EEA Agreement, cf. Article 101 of the Constitution and Article 11 of the European Convention on Human Rights.
    The boycott would prevent Holship’s staff from loading and unloading ships docked at the Port of Drammen. NTF’s purpose was to force Holship to enter into a collective agreement containing a priority of engagement clause, reserving loading and unloading work for dockworkers associated with the Administration Office for Dock Work in Drammen. The majority of the plenary Supreme Court found (10-7) that such boycott would be unlawful pursuant to section 2 of the Boycott Act. The dissent concerns the EEA rules.


Kurt Weltzien
Kurt Weltzien is a lawyer in NHO, which is the main representative organisation for Norwegian employers. He has a PhD on the thesis “Boycott in labour conflicts”. Kurt Weltzien also represented NHO in the Supreme Court in the case discussed in this case report.

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

    On 6 December 2016, the Danish Supreme Court delivered its long-awaited judgment on the case of Ajos, addressing the issue of whether a private employer was entitled to refuse to make a redundancy payment in reliance on the former section 2a(3) of the Danish Salaried Employees Act or whether the general principle against discrimination on grounds of age needed to take precedence. It concluded that the employer was entitled to refuse to pay.


Christian K. Clasen
Christian K. Clasen is a partner at Norrbom Vinding, Copenhagen.

    The Employment Appeal Tribunal (‘EAT’) considers the Equality Act – and to some extent the Equal Treatment Directive – and gives guidance about harassment and victimisation claims as well as on principals’ liability for acts of their agents. In a decision that declines to expand the scope of harassment claims, the EAT has decided, in particular, that it is not enough for claimants alleging harassment to simply assert that they are disabled, without meeting the definition of disability or falling into another protected situation.


Anna Sella
Anna Sella is a Senior Associate at Lewis Silkin LLP.

    Unlawful discrimination cannot be found even for morbid obesity under the German Equal Treatment Act.


Paul Schreiner
Paul Schreiner is a partner with Luther Rechtsanwaltsgesellschaft mbH in Essen, www.luther-lawfirm.com.
Article

2017/17 No legal protection against termination for a pregnant employee who does not hold a valid work permit (FR)

Keywords Unfair dismissal, Work and residence permit
Authors Claire Toumieux and Susan Ekrami
AbstractAuthor's information

    A pregnant employee with no valid work permit in France does not benefit from protective legal provisions forbidding or restraining her termination.


Claire Toumieux

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

    The rule has been confirmed again: the Fixed Term Employees (Prohibition on Discrimination) Law, Law 98(I)/2003 and EU Directive 1999/70 (the ‘Directive’) apply equally to all indefinite term contracts of both public and private sector employees and any remedy provided by the employer for failure to comply must be fair and equitable.


Panayiota Papakyriacou
Panayiota Papakyriacou is a lawyer at George Z. Georgiou & Associates LLC, www.gzg.com.cy.
Article

2017/19 Sureties for alleged breaches of the Austrian Anti-Wage and Social Dumping Law (AT)

Keywords Minimum wage/social dumping, Posted Workers Directive
Authors Hans Georg Laimer and Lukas Wieser
AbstractAuthor's information

    A surety can be imposed on an Austrian contractor retaining the services of a foreign company, if the foreign company is accused of breaching the Austrian Anti-Wage and Social Dumping Law and if the enforcement of a penalty outside Austria would be extremely difficult or impossible. Any risk assessment of this should based on not only what law is in place but whether it is routinely being applied. The Austrian Supreme Administrative Court (Verwaltungsgerichtshof) ruled that a surety should be imposed on a domestic contractor in relation to violations by a Hungarian suspect, even though law enforcement regulations are in place between Austria and Hungary (but just not applied in practice).


Hans Georg Laimer

Lukas Wieser
Hans Georg Laimer and Lukas Wieser are respectively a partner and an attorney at Law at zeiler.partners Rechtsanwaelte GmbH in Vienna.
Article

2017/20 Data gathered by GPS as a basis for disciplinary dismissal (PT)

Keywords Privacy
Authors Maria de Lancastre Valente and Mariana Azevedo Mendes
AbstractAuthor's information

    Distance-related data gathered by GPS and data reported manually by the employee (a sales representative at a pharmaceutical company) are valid and admissible sources of evidence in the context of a disciplinary dismissal procedure. This decision is innovative in that it contradicts the usual view of the Supreme Court of Justice on the scope of ‘distance-controlled supervision’ for the purposes of assessment of employee conduct.


Maria de Lancastre Valente

Mariana Azevedo Mendes
Maria de Lancastre Valente and Mariana Azevedo Mendes are respectively a Managing Associate and a Trainee Associate at SRS Advogados, Portugal; www.srslegal.pt.
Article

2017/21 Legal rules for employers for monitoring employees in Slovakia (SK)

Keywords Privacy, Unfair dismissal
Authors Gabriel Havrilla and Richard Sanák
AbstractAuthor's information

    An employer can monitor an employee’s emails provided it has made it clear beforehand that it might do so. It is permissible for the employer to prohibit employees from using its electronical equipment for private use, but if the employer is going to check whether this rule was being complied with, it needs to have a significant reason to do so and must respect the principles of legality legitimacy and proportionality.


Gabriel Havrilla

Richard Sanák
Gabriel Havrilla and Richard Sanák are respectively managing partner and junior associate with law firm Legal Counsels s.r.o., www.legalcounsels.sk.

    The Supreme Court ruled that evidence of wrongdoing obtained by a company against two former executives was admissible in court, as it was legitimate that the company should have the opportunity to defend its right to free competition. In such cases, the executives’ right to privacy of communication should be balanced against the company’s freedom of competition.


Effie Mitsopoulou
Effie Mitsopoulou is a partner with Kyriakides Georgopoulos Law Firm in Athens, www.kglawfirm.gr.
Article

2017/23 Suspension of a recovery plan is not a transfer-triggering event (BU)

Keywords Transfer of undertaking, Employees who transfer/refuse to transfer
Authors Kalina Tchakarova
AbstractAuthor's information

    The Bulgarian Supreme Court ruled to the effect that the Bulgarian Labour Code (‘BLC’) provides for the automatic transfer of employees only in the circumstances set out in the BLC. The employment protection given by the BLC cannot either be broadened or narrowed. The suspension of a recovery plan which leads to the restoration of insolvency proceedings (and therefore the return of the company from the transferee that had been executing the failed recovery plan back into the hands of the transferor) did not lead to the automatic transfer of employment.


Kalina Tchakarova
Kalina Tchakarova is a partner at Djingov, Gouginski, Kyutchukov and Velichkov, Sofia, www.dgkv.com.

    The transferee dismissed the plaintiff immediately upon the transfer, for business reasons. The plaintiff claimed the dismissal was invalid because the transferee did not consult the union representatives who were transferred. The Supreme Court held that, in the absence of a works council, the union representative has, by law, all rights and obligations with regard to information and consultation. Failure to abide by the information and consultation rules rendered the decision to dismiss invalid.


Dina Vlahov Buhin
Dina Vlahov Buhin is a lawyer with Vlahov Buhin & Šourek in cooperation with Schoenherr Attorneys at Law, www.schoenherr.eu.
ECJ Court Watch

ECJ (Grand Chamber) 14 March 2017, case C-157/15 (Achbita), Religious discrimination

Samira Achbita and the Centrum voor gelijkheid van kansen en voor racismebestrijding (Centre for Equal Opportunities and Opposition to Racism) – v – G4S Secure Solutions NV, Belgian case

Keywords Religious discrimination
Abstract

    Company regulations that prohibit the visible wearing of political, philosophical or religious symbols do not discriminate directly on grounds of religion. A policy of projecting an image of neutrality is not indirectly discriminatory if pursued consistently and systematically.

ECJ Court Watch

ECJ (Grand Chamber) 14 March 2017, case C-188/15 (Bougnaoui), Religious discrimination

Asma Bougnaoui and Association de défense des droits de l’homme (Association for the Defence of Human Rights) – v – Micropole SA, formerly Micropole Univers SA, French case

Keywords Religious discrimination
Abstract

    The concept of a ‘genuine and determining occupational requirement’ within the meaning of Article 4 of Directive 2000/78 does not cover subjective considerations, such as the willingness of an employer to take account of customers’ wishes.

ECJ Court Watch

ECJ 27 April 2017, case C-680/15 (Asklepios Kliniken), Transfer of undertakings

Asklepios Kliniken Langen-Seligenstadt GmbH and Asklepios Dienstleistungsgesellschaft mbH – v – Ivan Felja and Vittoria Graf, German case

Keywords Transfer of undertakings, employment terms
Abstract

    ‘Dynamic’ referral clauses have effect after the transfer of an undertaking, if national law provides for the possibility for the transferee to make changes both consensually and unilaterally.

ECJ Court Watch

ECJ 27 April 2017, C-620/15 (A-Rosa Flussschiff), Free movement, social insurance

A-Rosa Flussschiff GmbH – v – Union de recouvrement des cotisations de sécurité sociale et d’allocations familiales d’Alsace (URSSAF), venant aux droits de l’URSSAF du Bas-Rhin and Sozialversicherungsanstalt des Kantons Graubünden, French case

Keywords free movement: social insurance
Abstract

    An E101 certificate, issued by the institution designated by the competent authority of a Member State under Article 14(2)(a) of Regulation No 1408/71, is binding on both the social security institutions of the Member State in which the work is carried out and the courts of that Member State – even when it is found by those courts that the conditions under which the workers carried out their activities did not fall within the scope of the provisions of Regulation no 1408/71.

ECJ Court Watch

ECJ 2 March 2017, case C-97/16 (Perez Retamero), Employment status

José María Pérez Retamero – v – TNT Express Worldwide Spain SL and Others, Spanish case

Abstract

    Based on a challenge to the dismissal of a transporter of goods, certain questions were referred to the ECJ under Directive 2002/15 on the organisation of working time for persons performing mobile road transport activities. However, the questions related, not to dismissal, but to how ‘mobile workers’ were defined in the Directive (as the worker sought to establish that he was employed and therefore entitled to full employment rights). The Court ruled that, as the Directive related to how working time is organised, rather than dismissal, the questions were inadmissible.

ECJ Court Watch

ECJ 2 March 2017, case C-496/15 (Eschenbrenner), Freedom of movement

Alphonse Eschenbrenner – v – Bundesagentur für Arbeit, German case

Keywords Freedom of movement
ECJ Court Watch

Case C-627/16. Insolvency

João Ventura Ramos v Fundo de Garantia Salarial, reference lodged by the Portuguese Tribunal Administrativo e Fiscal de Viseu on 5 December 2016

ECJ Court Watch

Case C-653/16. Discrimination

Jitka Svobodová v Česká republika – Okresní soud v Náchodě, reference lodged by the Nejvyšší soud České republiky (Czech Republic) on 19 December 2016

ECtHR Court Watch

ECtHR 28 March 2017, application no. 51706/11, Freedom of expression

Marunic – v – Croatia, Croatian case

Keywords Freedom of expression
Abstract

    The employer had summarily dismissed the director of the company, on the basis that it had the right to protect its reputation and business interests against the criticisms she made in the media. What it failed to take into account was that she was simply responding to earlier criticisms by the employer in the media of her leadership. The expectation that the employee should not respond in the media would overstretch the employees’ duty of loyalty, contrary to Article 10 of the Convention – whereby the right to freedom of expression would protect against unreasonable demands of loyalty by the employer. On the facts, what the employee did was legitimate and within her right to freedom of expression.

ECtHR Court Watch

ECtHR 26 January 2017, application no. 42788/06, Right to fair hearing and right to respect for private and family life

Surikov – v – Ukraine, Ukrainian case

Keywords Right to respect for private and family life
Abstract

    ECtHR concludes that there has been a violation of Article 8 (right to respect for private and family life) in the case of retention and disclosure of an employee’s mental-health data and its use in deciding on employees’ applications for promotion.