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European Employment Law Cases

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Issue 1, 2019 Expand all abstracts
Editorial

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Law Review

2019/1 EELC’s review of the year 2018

Authors Ruben Houweling, Catherine Barnard, Filip Dorssemont e.a.
Abstract

    For the second time, various of our academic board analysed employment law cases from last year. However, first, we start with some general remarks.


Ruben Houweling

Catherine Barnard

Filip Dorssemont

Jean-Philippe Lhernould

Francesca Maffei

Niklas Bruun

Anthony Kerr

Jan-Pieter Vos

Luca Ratti

Daiva Petrylaite

Andrej Poruban

Stein Evju

    The Employment Appeal Tribunal (EAT) has clarified the grounds on which bad faith can be alleged in a victimisation claim under the Equality Act 2010 (‘EqA’). The EAT held that although motive in alleging victimisation could be relevant, the primary question is whether the employee acted honestly in giving the evidence or information, or in making the allegation. The concept of ‘bad faith’ is thus different in victimisation claims than whistleblowing claims.


Soyoung Lee
Soyoung Lee is an Associate at Lewis Silkin LLP.

    The Supreme Court has ruled that a baker’s refusal to provide a cake with a slogan supporting gay marriage was not sexual orientation discrimination, nor discrimination on grounds of political belief. The Northern Ireland bakery was owned by Christians who had religious objections to gay marriage (they thought Christian doctrine holds that marriage can only take place between a man and a woman). Gay marriage is not legal in Northern Ireland, although it is in the rest of the United Kingdom. Gay couples can enter into a ‘civil partnership’ in Northern Ireland, which formalises the relationship and provides it with legal recognition in a similar way to marriage.


Soren Kristophersen
Soren Kristophersen is a Legal Assistant at Lewis Silkin LLP.

    On 8 November 2018 the Italian Constitutional Court prohibited the reform of the protection against unfair dismissal introduced by the so-called Jobs Act (Legislative Decree no. 23 of 4 March 2015), insofar as it imposed a requirement on the judge to quantify the compensation due for unfair dismissal based on an employee’s seniority only. According to the Court, such a requirement violated not just internal constitutional norms, but also Article 24 of the (Revised) European Social Charter of 1996. This contribution focuses particularly on the EU law questions deriving from such an important judgment.


Andrea Pilati
Andrea Pilati is an Associate Professor of Labour Law at the University of Verona, Italy.
Case Reports

2019/5 For how long may data of a job applicant be stored? (AT)

Keywords Privacy, Discrimination, General
Authors Sophie Mantler and Andreas Tinhofer
AbstractAuthor's information

    A provision of Dutch law, according to which employees who lose their jobs upon retirement are excluded from the right to statutory severance compensation, is not in breach of the Framework Directive.


Sophie Mantler
Sophie Mantler is a senior associate and

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

    According to the Belgian Supreme Court, a choice of Belgian law for an employment relationship extends to all provisions beyond the employment contract. If parties choose to apply Belgian law to their employment relationship, this choice may extend to all provisions of Belgian law which regulate the mutual rights and obligations of the parties. This includes legislation on well-being at work and, hence, the payment of a protection indemnity following dismissal after filing a claim for harassment.


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

    The Danish Western High Court recently ruled that the Danish Act on Employees’ Rights on Transfers of Undertakings did not apply to two municipalities’ repatriation of home care services after a private-sector service provider went bankrupt.


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

2019/8 Supreme Court rules on transfer of undertaking (FI)

Keywords Transfer of undertakings
Authors Janne Nurminen
AbstractAuthor's information

    The Finnish Supreme Court held that a transfer of undertaking had taken place in a situation where no contract of transfer was concluded.


Janne Nurminen
Janne Nurminen is a Senior Associate with Roschier, Attorneys Ltd in Helsinki, www.roschier.com
Case Reports

2019/9 The right to object against a transfer in case of incorrect information is not unlimited (GE)

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

    According to German law, every employee has the right to object to the transfer of their employment relationship to the transferee in the case of a transfer of business. However, the right to object is not unlimited. The Federal Labour Court (Bundesarbeitsgericht (‘BAG’)) held that an employee who had worked for the transferee for seven years had lost this right if they had been informed about the transfer.


Nina Stephan
Nina Stephan is an attorney-at-law at Luther Rechtsanwaltgesellschaft mbH
Case Reports

2019/10 Employee’s right of choice between transferor and transferee in the event of a business transfer (NO)

Keywords Transfer of undertakings, Employees who transfer/refuse to transfer
Authors Bernard Johann Mulder
AbstractAuthor's information

    As a result of a transfer of an undertaking an employee lost her pension scheme rights. The transferor was bound by the pension scheme covering the employee which had been agreed upon in a collective agreement. However, the transferee company gave notification that it did not want to be bound by the collective agreement and, thus, the pension scheme. The Norwegian Supreme Court (Høyesterett) considered this loss a material negative change to the employment relationship. Therefore, the employee had the right to make use of the non-statutory exception rule of the right to insist upon continuation of the employment with the transferor, a non-statutory right of choice.


Bernard Johann Mulder
Bernard Johann Mulder is a professor at University of Oslo, Faculty of Law, Department of Private Law.
Case Reports

2019/11 Resignation or constructive dismissal? (RO)

Keywords Miscellaneous
Authors Andreea Suciu
AbstractAuthor's information

    The Iasi Court of Appeal has held that a request for resignation completed and signed after various forms of pressure from the employee’s superiors does not represent a termination of an individual labour agreement on the initiative of the employee, but a constructive dismissal.


Andreea Suciu
Andreea Suciu is the managing partner at Suciu | The Employment Law Firm.
Rulings

ECJ 20 November 2018, case C-147/17 (Sindicatul Familia), Working time and leave, Health and safety

Sindicatul Familia Constanţa, Ustinia Cvas and Others – v – Direcția Generală de Asistență Socială și Protecția Copilului Constanța, Romanian case

Keywords Working time and leave, Health and safety
Abstract

Rulings

ECJ 4 December 2018, case C-378/17 (Minister for Justice and Equality and Commissioner of the Garda Síochána), Discrimination, General

Minister for Justice and Equality, Commissioner of An Garda Síochána – v – Workplace Relations Commission, Irish case

Keywords Discrimination, General
Abstract

Rulings

ECJ 6 December 2018, case C-675/17 (Preindl), Free movement, Other forms of free movement

Ministero della Salute – v – Hannes Preindl, Italian case

Keywords Free movement, Other forms of free movement
Abstract

Rulings

ECJ 10 December 2018, case C-621/18 (Wightman and Others), Miscellaneous

Andy Wightman, Ross Greer, Alyn Smith, David Martin, Catherine Stihler, Jolyon Maugham, Joanna Cherry – v – Secretary of State for Exiting the European Union, UK case

Keywords Miscellaneous
Abstract

Rulings

ECJ 13 December 2018, case C-385/17 (Hein), Paid leave

Torsten Hein – v – Albert Holzkamm GmbH & Co. KG, German case

Keywords Paid leave
Abstract

Rulings

ECJ 15 January 2019, case C-258/17 (EB), Discrimination, Sexual orientation

E.B. – v – Versicherungsanstalt öffentlich Bediensteter BVA, Austrian case

Keywords Discrimination, Sexual orientation
Abstract

Rulings

ECJ 22 January 2019, case C-193/17 (Cresco Investigation), Discrimination, Religion

Cresco Investigation GmbH – v – Markus Achatzi, Austrian case

Keywords Discrimination, Religion
Abstract

Rulings

ECJ 23 January 2019, case C-272/17 (Zyla), Social insurance

K.M. Zyla – v – Staatssecretaris van Financiën, Dutch case

Keywords Social insurance
Abstract

Rulings

ECJ 24 January 2019, case C-477/17 (EB), Social insurance

Raad van bestuur van de Sociale Verzekeringsbank – v – D. Balandin, I. Lukachenko, Holiday on Ice Services BV, Dutch case

Keywords Social insurance
Abstract

Rulings

ECJ 13 February 2019, case C-179/18 (Rohart), Pension, Social insurance

Ronny Rohart – v – Federale Pensioendienst, Belgian case

Keywords Pension, Social insurance
Abstract

Rulings

ECJ 7 February 2019, case C-322/17 (Bogatu), Social insurance

Eugen Bogatu – v – Minister for Social Protection, Irish case

Keywords Social insurance
Abstract

Rulings

ECJ 14 February 2019, case C-154/18 (Horgan), Age discrimination

Tomás Horgan, Claire Keegan – v – Minister for Education & Skills, Minister for Finance, Minister for Public Expenditure & Reform, Ireland, Attorney General, Irish case

Keywords Age discrimination
Abstract

Rulings

ECJ 28 February 2019, case C-579/17 (BUAK), Social insurance

BUAK Bauarbeiter-Urlaubs- u. Abfertigungskasse – v – Gradbeništvo Korana d.o.o., Austrian case

Keywords Social insurance
Abstract

Rulings

ECJ 13 March 2019, case C-437/17 (Gemeinsamer Betriebsrat EurothermenResort Bad Schallerbach GmbH), Free movement

Gemeinsamer Betriebsrat EurothermenResort Bad Schallerbach GmbH – v – EurothermenResort Bad Schallerbach GmbH, Austrian case

Keywords Free movement
Abstract

Rulings

ECJ 14 March 2019, case C-134/18 (Vester), Social insurance

Maria Vester – v – Rijksinstituut voor ziekte- en invaliditeitsverzekering, Belgian case

Keywords Social insurance
Abstract

Rulings

ECJ 14 March 2019, case C-372/18 (Dreyer), Social insurance

Ministre de l’Action et des Comptes publics – v – Mr and Mrs Raymond Dreyer, French case

Keywords Social insurance
Abstract