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European Employment Law Cases


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Issue 4, 2017 Expand all abstracts
Case Reports

2017/39 The principle of legality applies to disciplinary sanctions (LU)

Keywords Collective labour law
Authors Michel Molitor
AbstractAuthor's information

    The Court of Appeal held that disciplinary sanctions are subject to the general principles of criminal law and therefore must respect the principle of legality. Consequently, the wording of any collective agreement that is used as the legal basis of a sanction must be sufficiently clear and precise to enable the employee to understand the consequences of his or her misconduct.


Michel Molitor
Michel Molitor is a partner with MOLITOR Avocats à la Cour in Luxembourg, www.molitorlegal.lu.

    The Lithuanian Supreme Court ruled that a trade union acting on a territorial level has no right to represent all the employees in a single enterprise or participate in information and consultation procedures, if (i) the majority of the employees have not specifically accorded this function to the trade union or (ii) the trade union is not able to prove that a structural sub-unit has been established in that enterprise.


Vida Petrylaite
Vida Petrylaite is a partner with CONFIDENCE Law Office, Vilnius, www.confidence.lt.
Case Reports

2017/41 New approach to burden of proof in discrimination claims (UK)

Keywords General discrimination
Authors Hannah Price
AbstractAuthor's information

    The Employment Appeal Tribunal (EAT) has adopted a new approach to the burden of proof in discrimination cases. Up to now, the courts have held that the claimant must, in the first instance, prove sufficient facts from which (in the absence of any other explanation) an inference of discrimination can be drawn. Once the claimant has established these facts, the burden of proof shifts to the respondent to show that he or she did not breach the provisions of the Act. The EAT has now said that courts should consider all of the evidence (both the claimant’s and the respondent’s) when making its finding of facts, in order to determine whether or not a prima facie case of discrimination has been made out. It is then open to the respondent to demonstrate that there was no discrimination. This is an important development in how the burden of proof is dealt with in discrimination cases. It clarifies that it is not only the claimant’s evidence which will be scrutinised in determining whether the burden of proof has shifted, but also the respondent’s evidence (or lack thereof).


Hannah Price
Hannah Price is a Legal Director at Lewis Silkin LLP.

    Between 2008 and 2016, around 7000 Asda employees working in retail stores (who were largely women) issued equal pay claims in the Manchester Employment Tribunal (‘ET’). The Claimants argued that retail store workers carry out work of ‘equal value’ to the predominantly male workforce working in the distribution centres, meaning they were appropriate comparators for the purposes of an equal pay claim. The ET upheld their claim, even though the stores and distribution centres were run by different departments and the rates of pay set by a different method. Asda appealed to the EAT, which dismissed all grounds of appeal and upheld the ET’s decision, allowing the UK’s largest private-sector group equal pay claim to proceed.


Katie Johnston
Katie Johnston is a Senior Associate at Lewis Silkin LLP.
Case Reports

2017/43 Mobility of employees and entitlement to annual leave (AU)

Keywords Nationality discrimination
Authors Peter C. Schöffmann and Andreas Tinhofer
AbstractAuthor's information

    Under Austrian law employees are entitled to more annual leave if they have worked for at least 25 years for the same employer. Employment with other employers is taken into account, but not for more than a total of five years. The ECJ will have to decide whether this limitation complies with EU law or whether it unlawfully restricts the freedom of movement of employees.


Peter C. Schöffmann
Peter C. Schöffmann is an associate at MOSATI Rechtsanwälte (www.mosati.at).

Andreas Tinhofer
Andreas Tinhofer is a partner at MOSATI Rechtsanwälte (www.mosati.at).

    On 10 January 2017, the Labour Court of Mons ruled that in the case of a collective dismissal, an employer may use absenteeism measured by the Bradford factor as a criterion for selecting employees for redundancy, without breaching anti-discrimination law.


Gautier Busschaert
Gautier Busschaert is an attorney at Van Olmen & Wynant in Brussels, www.vow.be.

    A clause in a collective bargaining agreement stipulating that overtime premiums for part time employees are only payable if their monthly working hours exceed those of a full-time employee is not discriminatory.


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

    The Supreme Court has ruled in favour of a man seeking to establish that, if he died, his husband should be entitled to the same survivor’s pension as a female spouse would receive in the same circumstances. The Court unanimously held that an exemption in the Equality Act 2010 allowing employers to exclude same-sex partners from pension benefits accruing before December 2005, was incompatible with EU law and should be disapplied.


Anna Bond
Anna Bond is an associate at Lewis Silkin LLP: www.lewissilkin.com.

    In February 2017, a female worker was served notice of termination of her employment contract for economic reasons (odpoved pogodbe o zaposlitvi iz poslovnih razlogov). The reasons for the termination were: (i) a substantial decrease in orders, (ii) reduced realisation and (iii) reduced demand for particular products. In particular, the company had lost one of its clients in the automotive industry. The worker brought an action claiming that (i) the reason for the termination was not logical (this included challenging the arguments made in the termination letter because the business results in 2012, when the notice was served, were better than in 2011); (ii) the employer continuously requested employees to work overtime (but note that the overtime was within the statutory limits); and (iii) she had been discriminated against and the working conditions were poor in various respects. The first and second instance courts denied her claim and found the termination lawful.


Petra Smolnikar
Petra Smolnikar is the founder and managing partner of PETRA SMOLNIKAR LAW, in Ljubljana, Slovenia: http://petrasmolnikarlaw.eu.
Case Reports

2017/48 Supreme Court rules on scope of collective dismissal procedure (PL)

Keywords Collective dismissal
Authors Marcin Wujczyk Ph.D.
AbstractAuthor's information

    The Polish Supreme Court has recently confirmed that the collective dismissal procedure should also cover cases where the employment relationship is terminated as a result of the termination of conditions of work or pay.


Marcin Wujczyk Ph.D.
Marcin Wujczyk, Ph.D., is an associate professor at the Jagiellonian University and an attorney with Ksiazek & Bigaj Law Firm, www.ksiazeklegal.pl.

    The Supreme Court of Finland has ruled that an employer had legitimate grounds to make 16 consecutive fixed-term employment contracts with an employee who did not hold the degree required by law for permanent employment as a social worker. However, the employer had neglected its obligation to offer work and provide training for the employee and was obliged to pay compensation for unjustified termination of the employment relationship.


Kaj Swanljung

Janne Nurminen
Kaj Swanljung and Janne Nurminen are respectively a Senior Counsel and Senior Associate at Roschier in Helsinki, www.roschier.com.
Case Reports

2017/50 Limits on free speech that may defame an employer (CZ)

Keywords Fundamental rights
Authors Anna Diblíková
AbstractAuthor's information

    The Czech Supreme Court has given guidance on the limits to employees’ free speech. Employees must not engage in any conduct, even outside working hours, that could actually or potentially damage their employer’s business. Any criticism of an employer must be based on facts and not be misleading or defamatory. Inappropriate or unjustified criticism may lead to immediate termination of employment.


Anna Diblíková
Anna Diblíková is an attorney at Noerr in Prague, www.noerr.com.

    The highest administrative court in the Netherlands has delivered a razor-sharp ruling on the intra-community service provision set out in Articles 56 and 57 of the Treaty on the Functioning of the European Union). This concerns ‘new’ EU-nationals who are still under transitional measures with regard to access to the labour markets of ‘old’ EU Member States. The judgment was preceded by a request from the Chairman to a State Councillor Advocate General to deliver his opinion on various aspects of punitive administrative law practice in the Netherlands. Both the opinion and the judgment are a welcome clarification and addition (or even correction) on the practice.


Bart J. Maes
Bart J. Maes is a partner at Maes Staudt Advocaten N.V. in Eindhoven, the Netherlands (www.maes-staudt.nl).

    The highest administrative court in the Netherlands has delivered a razor-sharp ruling on the intra-community service provision set out in Articles 56 and 57 of the Treaty on the Functioning of the European Union). This concerns ‘new’ EU-nationals who are still under transitional measures with regard to access to the labour markets of ‘old’ EU Member States. The judgment was preceded by a request from the Chairman to a State Councillor Advocate General to deliver his opinion on various aspects of punitive administrative law practice in the Netherlands. Both the opinion and the judgment are a welcome clarification and addition (or even correction) on the practice.


Othmar K. Traber
Othmar K. Traber is a partner at Ahlers & Vogel Rechtsanwalte PartG mbB in Bremen, www.ahlers-vogel.com.
Case Reports

2017/53 Transfer of bus services was a transfer of undertaking (DK)

Keywords Transfer of undertakings
Authors Christian K. Clasen
AbstractAuthor's information

    A privately operated public bus service was transferred back to the municipality. This constituted the transfer of an undertaking even though the municipality did not buy the buses from the bus operator.


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

ECJ 14 September 2017, case C-168/16 and C-169/16 (Ryanair), Private international law

Sandra Nogueira and Others – v – Crewlink Ireland Ltd and Miguel José Moreno Osacar – v – Ryanair Designated Activity Company

Keywords Private international law
Abstract

    When determining the place from which airline cabin crewmembers habitually carry out their work, the concept of ‘home base’ is a significant indicator.

ECJ Court Watch

ECJ 21 September 2017, case C-429/16 (Ciupa c.s. – v- Lodz Hospital), Collective redundancies

Małgorzata Ciupa c.s. – v – Szpital Ginekologiczno-Położniczy im. dr L. Rydygiera sp. z o.o. w Łodzi

Keywords Collective redundancies
Abstract

    A unilateral amendment of employment conditions qualifies as ‘redundancy’ within Directive 98/59 on collective redundancies, if the employee’s refusal entails the termination of the employment contract.

ECJ Court Watch

ECJ 21 September 2017, case C-149/16 (Halina Socha v. Szpital Specjalistyczny), Collective redundancies

Halina Socha, Dorota Olejnik and Anna Skomra – v – Szpital Specjalistyczny im. A. Falkiewicza we Wrocławiu

Keywords Collective redundancies
Abstract

    A unilateral amendment of employment conditions qualifies as ‘redundancy’ within Directive 98/59 on collective redundancies, if the employee’s refusal entails the termination of the employment contract.

ECtHR Court Watch

ECtHR 5 September 2017 (Barbulescu), Application no. 61496/08, Privacy

Barbulescu – v – Romania, Romanian case

Keywords Fundamental rights, Privacy
Abstract

    In Barbulescu, the Court examined for the first time a case concerning the monitoring of an employee’s electronic communications by a private employer. The Grand Chamber decided differently from the Chamber, when it concluded that the Romanian courts, in reviewing the decision of a private employer to dismiss an employee after having monitored his electronic communications, failed to strike a fair balance between the interests at stake: namely the employee’s right to respect for his private life and correspondence, on the one hand, and his employer’s right to take measures to ensure the smooth running of the company, on the other.

ECJ Court Watch

Case C-189/16. Social security

Boguslawa Zaniewicz-Dybeck – v – Pensionsmyndigheten, reference lodged by the Swedish Högsta förvaltningsdomstolen on 4 April 2016

ECJ Court Watch

Case C-474/16. Social security

The public prosecutor, Belu Dienstleistung GmbH & Co KG, Stefan Nikless, reference lodged by the French Cour d’appel de Colmar on 29 August 2016