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European Employment Law Cases


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Issue 3, 2017 Expand all abstracts
Editorial

Future of Europe

Article

2017/25 Company practice versus collective bargaining agreement in the formation of acquired rights (PT)

Keywords Collective labour law, Collective agreements
Authors Maria de Lancastre and Mariana Azevedo Mendes
AbstractAuthor's information

    The Supreme Court of Justice recently decided that the amount of time a practice has been observed in a collective bargaining agreement (in this case, four years) was not relevant to the acquisition of an entitlement. The entitlement in the case at hand was a public holiday on Shrove Tuesday.


Maria de Lancastre
Maria de Lancastre Valente is a Managing Associate at SRS Advogados, Portugal (www.srslegal.pt).

Mariana Azevedo Mendes
Mariana Azevedo Mendes is a Trainee Associate at SRS Advogados, Portugal.
Article

2017/26 What is a collective agreement? (DK)

Keywords Collective labour law, Collective agreements
Authors Christian K. Clasen
AbstractAuthor's information

    On 2 June 2017, the Danish Eastern High Court decided that a statutory intervention by government was sufficient to enable derogation from the Working Time Directive (2003/88). The Directive can be derogated from by a collective agreement and although the statutory intervention was not a collective agreement, the High Court found that it was not inconsistent with that requirement.


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

2017/27 Supreme Court clarifies indirect discrimination test (UK)

Keywords General discrimination, Indirect discrimination
Authors Soyoung Lee
AbstractAuthor's information

    The Supreme Court has given a clear explanation of how the test for indirect discrimination works, holding that it is not necessary to know why a particular group is disadvantaged by an employer’s policy in order to show indirect discrimination. This decision is not particularly helpful for employers as it makes it easier for individuals to make an indirect discrimination claim. However, the Supreme Court emphasised that it is always open to an employer to show that indirect discrimination is justified.


Soyoung Lee
Soyoung Lee is an Associate Solicitor at Lewis Silkin LLP (www.lewissilkin.com).

    It was direct sex discrimination for a male employee who wished to take shared parental leave (SPL) to be entitled only to the minimum statutory pay where a female employee would have been entitled to full salary during an equivalent period of maternity leave, according to a first-instance decision from the Employment Tribunal (ET).


Anna Bond
Anna Bond is an Associate Solicitor at Lewis Silkin LLP.
Article

2017/29 Policy requiring employees to speak English at work justifiable (IR)

Keywords Nationality discrimination
Authors Orla O’Leary
AbstractAuthor's information

    A recent decision by the Labour Court found that a policy requiring employees to speak English in the workplace constituted discrimination on grounds of national origin but was objectively justifiable.


Orla O’Leary
Orla O’Leary is a Senior Associate at Mason Hayes & Curran.
Article

2017/30 Discrimination of workers’ representatives – burden of proof (LI)

Keywords Discrimination (other), Discrimination of workers’ representatives
Authors Vida Petrylaite
AbstractAuthor's information

    The Lithuanian Supreme Court has found discrimination against an employee based on his trade union activities and ruled that there was no need for the burden of proof to shift to the employer.


Vida Petrylaite
Vida Petrylaite is a partner with CONFIDENCE Law Office, Vilnus (www.confidence.lt).
Article

2017/31 Lawful positive discrimination in favour of women (FR)

Keywords Discrimination (other), Positive discrimination
Authors Claire Toumieux and Susan Ekrami
AbstractAuthor's information

    Company agreement provisions granting a half-day of leave to female employees on International Women’s Day constitute lawful positive discrimination in favour of women.


Claire Toumieux
Claire Toumieux is a partner with Allen & Overy LLP in Paris (www.allenovery.com).

Susan Ekrami
Susan Ekrami is a senior associate with Allen & Overy LLP in Paris (www.allenovery.com).

    Under the Latvian Labour Law an employee has the right to terminate an employment contract with immediate effect, i.e. without complying with the statutory notice period of one month, if the employee has ‘good cause’. Under the Labour Law, ‘good cause’ is any situation, which, based on considerations of morality and fairness, would not allow for the employment to continue. If an employee terminates their employment contract for good cause the employer must pay severance to the employee based on the employee’s years of service with the employer and amounting to between one and four months’ average earnings. If the employee gives notice for good cause, this terminates the employment contract with immediate effect.
    Even if the employer disagrees with the reasons given in the termination notice, the employer cannot terminate the employment contract on any other ground and does not have the right to challenge the validity of the notice in court. However, if the employer suffers loss as a result of the immediate termination; its reputation is damaged based on the reasons given in the notice; or it has faced some other adverse consequence; the employer can bring a claim arguing that what is stated in the notice is untrue.


Andis Burkevics
Andis Burkevics is a senior associate with the Latvian office of law firm SORAINEN (www.sorainen.com).

    The period within which an employee can file a claim under the Regulations entitled “Contracts of Service for a Fixed Term” (which are Subsidiary Legislation under Maltese law) starts from when the employee became subject to less favourable treatment and not from when the employee could have known that the Regulations were being breached.


Matthew Brincat
Matthew Brincat is a partner with GANADO Advocates.
Article

2017/34 Ireland’s ban on asylum seekers working found to be unconstitutional (IR)

Keywords Fundamental Rights, Right to work
Authors Orla O’Leary
AbstractAuthor's information

    A recent decision by the Irish Supreme Court ruled that the blanket ban on asylum seekers working in Ireland was unconstitutional and had to be changed.


Orla O’Leary
Orla O’Leary is a Senior Associate at Mason Hayes & Curran in Dublin (www.mhc.ie).

    The Dutch Supreme Court decided that proceedings of a company against its managing director should be brought before the court in the country where the managing director is domiciled, in accordance with Article 20(1) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. This only applies if the managing director, in his capacity as director and manager, for a certain period of time, performed services for and under the direction of the company in return for remuneration, since in such a case it is presumed that he has an employment agreement as a worker.


Edith Franssen
Edith Franssen is an attorney at law at Loyens & Loeff and lecturer of Labour Law at the Erasmus University Rotterdam.

    In an international road transport case the Dutch Appellate Court held that working from a given place is not relevant when applying the Posted Workers Directive.


Zef Even
Zef Even is a lawyer with SteensmaEven, www.steensmaeven.com, and professor at the Erasmus University Rotterdam.

Amber Zwanenburg
Amber Zwanenburg is a lecturer at the Erasmus University Rotterdam.
Article

2017/37 Pay can only be modified with transferred workers’ consent (BE)

Keywords Transfer of undertakings
Authors Cecilia Lahaye
AbstractAuthor's information

    After the transfer of an undertaking (or part of one) the new employer cannot modify the transferred workers’ wages without their consent. This decision of the Belgian Supreme Court of 14 November 2016 leaves no leeway to the transferee to unilaterally substitute certain contractual elements with new ones, even if the new salary scheme is more advantageous overall.


Cecilia Lahaye
Cecilia Lahaye is an attorney at Van Olmen & Wynant in Brussels (www.vow.be).

    This decision of the German Federal Labour Court (‘Bundesarbeitsgericht’, or ‘BAG’) concerns what happens to leave entitlement if the employment contract is amended in the middle of the year and the number of working days changes from a four-day week to a five-day week.


Othmar K. Traber
Othmar K. Traber is a partner at Ahlers & Vogel Rechtsanwälte PartG mbB in Bremen, www.ahlers-vogel.com.
ECJ Court Watch

ECJ 22 June 2017, case C-126/16 (Smallsteps), Transfer of undertakings

Federatie Nederlandse Vakvereniging and Others – v – Smallsteps BV, Dutch case

Keywords Transfer of undertakings
Abstract

    A ‘pre-pack’ agreement is outside the scope of Article 5 of the Acquired Rights Directive. In this situation, the protection of workers guaranteed by Articles 3 and 4 of that directive is maintained.

ECJ Court Watch

ECJ 26 July 2017, case C-175/16 (Hälvä), Working time

Hannele Hälvä and Others – v – SOS-Lapsikylä ry, Finish case

Keywords Working time
Abstract

    Relief workers who look after children in a family environment for SOS-Lapsikyläry, so relieving the children’s foster carers, do not fall within the scope of the exception provided for in Article 17(1) of the Working Time Directive.

ECJ Court Watch

ECJ 20 July 2017, case C-416/16 (Piscarreta Ricardo), Transfer of undertaking

Luís Manuel Piscarreta Ricardo – v – Portimão Urbis EM SA and Others, Portuguese case

Keywords Transfer of undertakings
Abstract

    The Acquired Rights Directive applies in a situation in which a municipal body was wound up and its activities transferred in part to another municipality and in part to a different body, and an employee on long term leave, whose employment contract was suspended and was therefore not working at the time, was still covered by the concept of ‘employee’ within the meaning of the Directive.

ECJ Court Watch

ECJ 19 July 2017, case C-143/16 (Abercrombie & Fitch Italia Srl), Age discrimination

Abercrombie & Fitch Italia Srl – v – Antonino Bordonaro, Italian case

Keywords Age discrimination
Abstract

    A provision which authorises an employer to make an on-call contract with a worker of under 25 years of age and to dismiss that worker as soon as he or she reaches 25, pursues a legitimate aim of employment and labour market policy and the means to attain that objective were appropriate and necessary.

ECJ Court Watch

ECJ 18 July 2017, case C 566/15 (Erzberger), Free movement of workers

Konrad Erzberger – v – TUI AG, German case

Keywords Free movement of workers
Abstract

    The exclusion of employees of a group, employed outside of Germany, from the right to vote and stand as candidates in elections of employee representatives on the supervisory board of the German parent company, is not contrary to the free movement of workers.

ECJ Court Watch

ECJ 13 July 2017, case C-354/16 (Kleinsteuber), Part-time work and sex discrimination

Ute Kleinsteuber – v – Mars GmbH, German case

Keywords Part-time work, Gender discrimination
Abstract

    Distinctions made for part-time workers in calculating occupational pension can be acceptable, as long as the calculations are based on legitimate objectives in accordance with law.

ECJ Court Watch

ECJ 13 July 2017, case C-89/16 (Szoja), Social security

Radosław Szoja – v – Sociálna poisťovňa and WEBUNG, s.r.o., Slovakian case

Keywords Social security
Abstract

    Marginal activities should be disregarded for the purposes of determining which national social security legislation applies.

ECJ Court Watch

ECJ 6 April 2017, case C 336/15 (Unionen), Transfer of undertakings

Unionen – v – Almega Tjänsteförbunden and ISS Facility Services AB, Swedish case

Keywords Transfer of undertakings
Abstract

    A transferee must, when dismissing an employee over a year after a transfer of the undertaking, include the time he or she worked for the transferor in calculating the employee’s length of service, as this is relevant for determining the period of notice to which the employee is entitled.

ECJ Court Watch

Case C-677/16. Fixed-term work

Lucía Montero Mateos – v – Agencia Madrileña de Atención Social de la Consejería de Políticas Sociales y Familia de la Comunidad Autónoma de Madrid, reference lodged by the Spanish Juzgado de lo Social No 33 de Madrid on 29 December 2016

ECJ Court Watch

Case C-12/17. Parental leave

Maria Dicu – v – Ministerul Justiției, Consiliul Superior al Magistraturi, Curtea de Apel Suceava, Tribunalul Botoșani, reference lodged by the Romanian Curtea de Apel Cluj on 10 January 2017

ECJ Court Watch

Case C-17/17. Insolvency

Grenville Hampshire – v – The Board of the Pension Protection Fund, reference lodged by the English Court of Appeal on 16 January 2017

ECJ Court Watch

Case C-41/17. Health and safety

Isabel González Castro – v – Mutua Umivale, Prosegur España, S.L., reference lodged by the Spanish Tribunal Superior de Justicia de Galicia on 25 January 2017

ECJ Court Watch

Case C-46/17. Fixed-term work and equal treatment

Hubertus John – v – Freie Hansestadt Bremen, reference lodged by the German Landesarbeitsgericht Bremen on 30 January 2017

ECJ Court Watch

Case C-60/17. Transfer of undertakings

Ángel Somoza Hermo – v – Esabe Vigilancia, S.A., Fondo de Garantía Salarial (FOGASA), reference lodged by the Spanish Tribunal Superior de Justicia de Galicia on 6 February 2017

ECJ Court Watch

Case C-61/17. Collective redundancies

Miriam Bichat – v – APSB — Aviation Passage Service Berlin GmbH & Co. KG, reference lodged by the German Landesarbeitsgericht Berlin-Brandenburg on 6 February 2017

ECJ Court Watch

Case C-68/17. Equal treatment

IR – v – JQ, reference lodged by the German Bundesarbeitsgericht on 9 February 2017

ECJ Court Watch

Case C-133/17. Health and safety

Dănuț Podilă and Others – v – Societatea Națională de Transport Feroviar de Călători ‘CFR Călători’ SA București, reference lodged by the Romanian Curtea de Apel Cluj on 14 March 2017

ECJ Court Watch

Case C-147/17. Working time and health and safety

Sindicatul Familia Constanța and Others – v – Direcția Generală de Asistență Socială și Protecția Copilului Constanța, reference lodged by the Romanian Curtea de Apel Constanţa on 23 March 2017

ECJ Court Watch

Case C-193/17. Fundamental rights

Cresco Investigation GmbH – v – Markus Achatzi, reference lodged by the German Oberster Gerichtshof on 13 April 2017

ECJ Court Watch

Case C-212/17. Fixed-term work

Simón Rodríguez Otero – v – Televisión de Galicia S.A., reference lodged by the Spanish Tribunal Superior de Justicia de Galicia on 24 April 2017

ECJ Court Watch

Case C-252/17. Equal treatment

Moisés Vadillo González – v – Alestis Aerospace, S.L., reference lodged by the Spanish Juzgado de lo Social No 2, Cádiz on 12 May 2017

ECJ Court Watch

Case C-258/17. Discrimination and pension

E.B. – v – Versicherungsanstalt öffentlich Bediensteter BVA, reference lodged by the German Verwaltungsgerichtshof on 15 May 2017

ECJ Court Watch

Case C-315/17. Fixed term work

Pilar Centeno Meléndez – v – Universidad de Zaragoza, reference lodged by the Spanish Juzgado de lo Contencioso-Administrativo de Zaragoza on 29 May 2017

ECJ Court Watch

Case C-370/17. Social security

Caisse de retraite du personnel navigant professionnel de l’aéronautique civile (CRPNPAC) – v – Vueling Airlines SA, reference lodged by the French Tribunal de grande instance de Bobigny on 19 June 2017