Omslag_eelc_2016_01-1_original_large
Rss

European Employment Law Cases

About this journal  
Issue 1, 2018 Expand all abstracts
Law Review

Access_open 2018/1 EELC’s review of the year 2017

Authors Ruben Houweling, Catherine Barnard, Zef Even e.a.
Abstract

    This is the first time we have produced a review of employment law cases from the previous year, based on analysis by various of our academic board members. But before looking at their findings, we would first like to make some general remarks.


Ruben Houweling

Catherine Barnard

Zef Even

Amber Zwanenburg

Daiva Petrylaitė

Petr Hůrka

Jean-Philippe Lhernould

Erika Kovács

Jan-Pieter Vos

Andrej Poruban

Luca Ratti

Niklas Bruun

Francesca Maffei
Case Reports

2018/2 Court of Appeal restores burden of proof test in discrimination cases (UK)

Keywords General discrimination
Authors Kayleigh Williams
AbstractAuthor's information

    The Court of Appeal has overruled the recent Employment Appeal Tribunal (EAT) decision in Efobi – v – Royal Mail [2017] IRLR 956 (reported in EELC 2017/41), restoring the previous position that a claimant in a discrimination case has the initial burden of proof – which ‘shifts’ to the respondent to provide an explanation of why its conduct was non-discriminatory if a prima facie case is proven.
    The Court of Appeal disagreed with Mrs Justice Elisabeth Laing’s ruling in Efobi, that section136 of the Equality Act 2010 had made a substantial change to the law when it was introduced, on the basis that it could not be fair that a respondent should have to discharge the burden of proof without the claimant first showing that there is a case to be answered. Lord Singh ruled that it could not have been Parliament’s intention to remove this initial burden of proof when it enacted the Equality Act.


Kayleigh Williams
Kayleigh Williams is a paralegal at Lewis Silkin LLP.
Case Reports

2018/3 Limitation period for compensation claim on grounds of discrimination (GE)

Keywords Age discrimination
Authors Paul Schreiner and Jana Voigt
AbstractAuthor's information

    An acquired mother tongue is – at least indirectly – connected to a person’s origin and therefore also linked to ethnic origin. Claims based on the German General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz, the ‘AGG’) must be brought in writing within two months after knowledge of a possible discrimination. Time only starts to run for claims after the employer has provided an unsuccessful job applicant with a clear and definite statement that he or she has been rejected. The limitation period under the AGG will not be triggered by lapse of time only.


Paul Schreiner
Paul Schreiner is an attorney at law at Luther Rechtsanwaltsgesellschaft mbH.

Jana Voigt
Jana Voigt is an attorney at law at Luther Rechtsanwaltsgesellschaft mbH.
Case Reports

2018/4 Racist “liking” on Facebook may justify dismissal for serious misconduct (BE)

Keywords Freedom of expression, Unfair dismissal
Authors Gautier Busschaert
AbstractAuthor's information

    Racist ‘liking’ on Facebook may justify dismissal for serious misconduct, says the Labour Court of Liège in a decision of 24 March 2017. This case is interesting because, to the author’s knowledge, it is the first time that a simple ‘like’ (as opposed to a proper comment) on Facebook is assessed by a Belgian judge with a view to validate a dismissal for serious misconduct. This case also raises serious questions about the limits to the freedom of expression in social media.


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

    The German federal court for labour law matters, the Bundesarbeitsgericht (the ‘BAG’), has held that evidence cannot be used in a dismissal lawsuit if the employer has obtained it from long-term surveillance using keylogger-software. Employers must not keep their employees under constant surveillance and must therefore expect their legal position to be weak if they try to dismiss an employee based on findings from such monitoring. The court ruling preceded the ECtHR Barbulescu ruling of 5 September 2017 (featured in EELC 2017/4) in a similar case.


Paul Schreiner
Paul Schreiner is an attorney at law at Luther Rechtsanwaltsgesellschaft mbH.
Case Reports

2018/6 Dismissals anticipating a transfer of undertaking validated (HU)

Keywords Dismissal/severance payment, Transfer of undertaking
Authors Gabriella Ormai
AbstractAuthor's information

    The Hungarian Supreme Court has held that within the context of the transfer of an undertaking, the transferee can terminate employment relationships immediately after the transfer for operational reasons and can commence preparations to that effect before the transfer.


Gabriella Ormai
Gabriella Ormai is a managing partner with Ormai és Társai CMS Cameron McKenna Nabarro Olswang LLP Ügyvédi Iroda in Budapest, https://cms.law/en/HUN/Office/Budapest.
Case Reports

2018/7 ‘Ryanair’ after ‘Ryanair’: Crew member still left empty-handed? (NL)

Keywords Private international law, Competency, Applicable law
Authors Amber Zwanenburg
AbstractAuthor's information

    A Dutch first instance court applies the recent ECJ Ryanair ruling (C-168/16 and C-169/16) in another Ryanair private international law dispute. Even though the Dutch court accepted jurisdiction, it applied Irish law to the employees’ unfair termination claim.


Amber Zwanenburg
Amber Zwanenburg is a lecturer in labour law at the Erasmus University, Rotterdam.
Case Reports

2018/8 Insourcing of fitness services by hotel constitutes a transfer of undertaking (IT)

Keywords Transfer of undertaking, Transfer
Authors Caterina Rucci and Alessandro De Giobbi
AbstractAuthor's information

    A change of service provider may amount to the transfer of an undertaking. While this should not be surprising in itself, the authors discuss recent changes in Italian law in this case report.


Caterina Rucci
Caterina Rucci is an attorney at law at Fieldfisher.

Alessandro De Giobbi
Alessandro De Giobbi is an attorney at law at Fieldfisher.
Case Reports

2018/9 Uber’s work status appeal rejected (UK)

Keywords Miscellaneous, Employment status
Authors Laetitia Cooke
AbstractAuthor's information

    Following an appeal by Uber against an employment tribunal (ET) finding last year, which was featured in EELC 2017/10, that its drivers are ‘workers’ and not self-employed contractors (reported in EELC 2017-1), the Employment Appeal Tribunal (EAT) has now upheld the ET’s original decision. The EAT rejected Uber’s arguments that it was merely a technology platform, as well as its statement that it did not provide transportation services. This decision is important as it means that Uber drivers are entitled to certain rights under UK law, such as the right to holiday pay, to the national minimum wage (NMW) and protection against detrimental treatment for ‘blowing the whistle’ against malpractice. Uber has approximately 40,000 drivers (and about 3.5 million users of its mobile phone application in London alone) and so this decision has potentially significant financial consequences for the company.


Laetitia Cooke
Laetitia Cooke is an Associate at Lewis Silkin LLP.

    The Danish Supreme Court has ruled that the Danish authorities may have incurred liability by failing to act sufficiently quickly to amend the Danish Holiday Act to align it with EU law.


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

ECJ 20 December 2017, case C-102/16 (Vaditrans), Working time

Vaditrans BVBA – v – Belgische Staat, Belgian case

Keywords Working time and leave, Working time
Abstract

    Regulation 561/2006 prohibits lorry drivers from taking their regular weekly rest periods in a vehicle.

ECJ Court Watch

ECJ 6 February 2018, C-359/16 (Altun), Free movement, Social insurance

Altun and others – v – Openbaar Ministerie, Belgian case

Keywords Free movement, Social insurance
Abstract

    A Member State to which workers have been posted may, in the case of fraud and under certain conditions, ask the courts to disregard an A1 certificate and apply its own social security legislation, including the recovery of contributions.

ECJ Court Watch

ECJ 5 July 2017, case C-190/16 (Fries), Age discrimination

Werner Fries – v – Lufthansa CityLine GmbH, German case

Keywords Age discrimination
Abstract

    The non-discrimination principle and the freedom of occupation, as provided for in the Charter of Fundamental Rights of the European Union, do not prevent the EU from setting an age limit for pilots involved in commercial air transport, provided that this is done in accordance with Article 52(1) of the Charter.

ECJ Court Watch

EJC 7 September 2017, case C-174/16 (H), Maternity and parental leave, Gender discrimination

H. – v – Land Berlin, German case

Keywords Maternity and parental leave, Discrimination, Gender discrimination
Abstract

    Clause 5(1) and (2) of the revised Framework Agreement on parental leave precludes rules of national law which make promotion conditional on having successfully completed a probation, if probation has not taken place because of parental leave.

ECJ Court Watch

ECJ 13 September 2017, case C-570/15 (X), Free movement, Social insurance

X – v – Staatssecretaris van Financiën, Dutch case

Keywords Free movement, Social insurance
Abstract

    A Dutch employee who resides in Belgium and performs only 6.5% of his hours worked in Belgium (and the rest in the Netherlands), cannot be regarded as ‘normally’ pursuing an activity in two or more Member States. The special rule in Article 14(2)(b)(i) of Regulation No 1408/71, stating that a person normally employed in the territory of two or more Member States shall be subject to the legislation of the Member State in whose territory he resides, does not apply in this case.

ECJ Court Watch

ECJ 18 October 2017, case C-409/16 (Kalliri), Gender discrimination

Ypourgos Esoterikon and Ypourgos Ethnikis paideias kai Thriskevmaton – v – Maria-Eleni Kalliri, Greek case

Keywords Gender discrimination
Abstract

    The competition notice for enrolment in Greek police schools requires applicants, whichever their gender, to be at least 1.70m in height. This disadvantages a far greater number of women than men and does not appear either appropriate or necessary to achieve the legitimate objective it pursues.

ECJ Court Watch

ECJ 19 October 2017, case C-200/16 (Securitas), Transfer of undertaking, Transfer

Securitas-Serviços e Tecnologia de Segurança SA – v – ICTS Portugal – Consultadoria de Aviação Comercial SA and Others, Portuguese case

Keywords Transfer of undertaking, Transfer
Abstract

    If a company terminates its contract with one business for the provision of security guard services at its facilities and then makes a new contract for the supply of the same services with another business – but that second business refuses to take on the employees of the first – the situation may be an transfer of an undertaking if the equipment essential to the performance of those services has been taken over by the second business. Further, under the Acquired Rights Directive Member States must ensure that if a business loses a service contract to another operator, this can be treated as a transfer.

ECJ Court Watch

ECJ 19 October 2017, case C-531/15 (Otero Ramos), General discrimination, Gender discrimination

Elda Otero Ramos – v – Servicio Galego de Saúde & Instituto Nacional de la Seguridad Social, Spanish case

Keywords General discrimination, Gender discrimination
Abstract

    The provisions on the burden of proof regarding the equal treatment of men and women in employment matters in Directive 2006/54 also apply to claims by breastfeeding workers based on Directive 92/85 (safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding).

ECJ Court Watch

ECJ 25 October 2017, case C-106/16 (Polbud), Miscellaneous

Polbud – v – Wykonawstwo sp. z o.o., Polish case

Keywords Miscellaneous
Abstract

    Member States may not impose mandatory liquidation on companies that wish to transfer their registered office to another Member State. A restriction on freedom of establishment may be justified by overriding reasons in the public interest, such as the protection of the interests of creditors, minority shareholders and employees, but a general mandatory liquidation goes beyond what is necessary to achieve the objective of protecting these interests.

ECJ Court Watch

ECJ 9 November 2017, case C-98/15 (Espadas Recio), Part-time work

María Begoña Espadas Recio – v – ServicioPúblico de Empleo Estatal (SPEE), Spanish case

Keywords Part-time work
Abstract

    While a provision that treats the unemployment benefits of vertical part-time workers unfavourably compared to full-time workers falls outside the scope of the Framework Agreement on part-time work, such a benefit scheme may still violate the principle of equal treatment of men and women, for example, if it is indirectly discriminatory towards women.

ECJ Court Watch

ECJ 9 November 2017, C-306/16 (Maio), Working time and leave

Conley King – v – The Sash Window Workshop Ltd, Richard Dollar, Portuguese case

Keywords Working time
Abstract

    The weekly rest period for workers laid down in Article 5 of Directive 2003/88 does not necessarily need to be granted on the day following six consecutive working days.

ECJ Court Watch

ECJ 29 November 2017, case C-214/16 (Conley King), Paid leave

Conley King – v – The Sash Window Workshop Ltd, Richard Dollar, British case

Keywords Paid leave
Abstract

    The Working Time Directive precludes provisions that establish the right to be paid only after leave has been taken. Further, the right to paid leave (or a corresponding payment at the end of the employment relationship) cannot lapse if the employee has been deterred from taking the leave.

ECJ Court Watch

ECJ 7 december 2017, case C-189/16 (Zaniewicz-Dybeck), Free movement, Social insurance

Boguslawa Zaniewicz-Dybeck – v – Pensionsmyndigheten, Swedish case

Keywords Free movement, Social insurance
Abstract

    A minimum benefit as defined in Article 50 of Regulation No 1408/71 may not be calculated in accordance with Articles 46(2) and 47 of that Regulation, but benefits receive in other Member States may be taken into account in calculating the minimum benefit.

ECJ Court Watch

ECJ 20 December 2017, case C-442/16 (Gusa), Free movement, Social insurance

Florea Gusa – v – Minister for Social Protection, Ireland, Irish case

Keywords Free movement, Social insurance
Abstract

    Self-employed workers who have ceased their activity for reasons beyond their control and who are registered as jobseekers, retain their status as self-employed persons for the purposes of Article 7(1)(a) of Directive 2004/38.

ECJ Court Watch

ECJ 20 December 2017, case C-434/15 (Uber Spain), Employment status

Asociación Profesional Élite Taxi – v – Uber Systems Spain SL, Spanish case

Keywords Employment status
Abstract

    The overall degree of control which the Uber platform exercises over the workforce does not suggest that it acts merely as an intermediary. The services Uber provides fall within the field of transport within the meaning of EU law and not under the freedom to provide services. It is therefore for the Member States to regulate the conditions under which such services are to be provided in conformity with the general rules of the TFEU.

ECJ Court Watch

ECJ 20 December 2017, case C-158/16 (Vega González), Fixed-term work, Other forms of discrimination

Margarita Isabel Vega González – v – Consejería de Hacienda y Sector Público del Gobierno del Principado de Asturias, Spanish case

Keywords Fixed-term work, Other forms of discrimination
Abstract

    A fixed-term worker elected to a parliamentary role must be able to benefit from the same special leave granted to a permanent civil servant, to enable them to hold a public office.

ECJ Court Watch

ECJ 20 December 2017, case C-103/16 (Porras Guisado), Unfair dismissal, Collective redundancies

Jessica Porras Guisado – v – Bankia SA and Others, Spanish case

Keywords Unfair dismissal, Collective redundancies
Abstract

    Directive 92/85 does not preclude national legislation that allows an employer to dismiss a pregnant worker in the context of a collective redundancy.

ECJ Court Watch

ECJ 21 February 2018, case C-518/15 (Matzak), Working time

Ville de Nivelles – v – Rudy Matzak, French case

Keywords Working time
Abstract

    The stand-by time of a volunteer firefighter at home who is obliged to respond to calls from his employer within eight minutes, must be regarded as ‘working time’.

ECJ Court Watch

ECJ 28 February 2018, case C-46/17 (John), Fixed-term work

Hubertus John – v – Freie Hansestadt Bremen, German case

Keywords Fixed-term work
Abstract

    The Framework Agreement on fixed-term work and the Equal Treatment (Framework) Directive do not forbid a provision that allows parties to postpone the operation of a retirement age clause in employment periods for fixed time, even if this means that they can be extended infinitely.

ECtHR Court Watch

ECtHR 5 December 2017, application no. 57101/10, Nationality discrimination

Ribać – v – Slovenia, Slovenian case

Keywords Race, nationality discrimination
Abstract

    Denial of military pension is deemed to be discriminatory based on nationality.

ECtHR Court Watch

ECtHR 9 January 2018, application nos. 1874/13 and 8567/13, Fundamental rights, Privacy

Lopez Ribalda – v – Spain, Spanish case

Keywords Fundamental rights, Privacy
Abstract

    The Spanish courts breached Article 8 of the Convention on Human Rights by accepting covert footage as valid evidence in court.

ECtHR Court Watch

ECtHR 23 January 2018, application no. 15374/11, Unfair dismissal, Other fundamental rights

Mr Güç – v – Turkey, Turkish case

Keywords Unfair dismissal, Other fundamental rights
Abstract

    Dismissal for harassment despite acquittal in criminal proceedings is not incompatible with Article 6(2) of the Convention (presumption of innocence).

ECtHR Court Watch

ECtHR 23 January 2018, application no. 60392/08, Unfair dismissal, Other fundamental rights

Seven – v – Turkey, Turkish case

Keywords Unfair dismissal, Other fundamental rights
Abstract

    The Turkish Supreme Administrative Court cast doubt on a dismissed police officer’s innocence by failing, in an appeal review, to take proper account of the fact that he had been acquitted of rape, in breach of the presumption of innocence contained in Article 6 §2 of the European Convention on Human Rights.

ECtHR Court Watch

ECtHR 27 February 2018, application no. 1085/10, Unfair dismissal, Freedom of expression

Guja – v – The Republic of Moldova (No. 2), Moldavian case

Keywords Unfair dismissal, Freedom of expression
Abstract

    Dismissal after re-instatement of employment following an ECtHR judgment found an infringement of freedom of speech.

ECJ Court Watch

Case C-527/16. Free movement, Social insurance

Salzburger Gebietskrankenkasse, Bundesminister für Arbeit, Soziales und Konsumentenschutz – v – Alpenrind GmbH and Others, reference lodged by the Austrian Verwaltungsgerichtshof on 14 October 2017

ECJ Court Watch

Case C-551/16. Free movement, Social insurance

J. Klein Schiphorst – v – Raad van bestuur van het Uitvoeringsinstituut werknemersverzekeringen, reference lodged by the Dutch Centrale Raad van Beroep on 31 October 2017