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European Employment Law Cases

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Issue 1, 2022 Expand all abstracts
Case Law

2022/1 EELC’s review of the year 2021

Authors Niklas Bruun, Filip Dorssemont, Zef Even e.a.
Abstract

    Various of our academic board analysed employment law cases from last year.


Niklas Bruun

Filip Dorssemont

Zef Even

Ruben Houweling

Marianne Hrdlicka

Anthony Kerr

Attila Kun

Jean-Philippe Lhernould

Daiva Petrylaitė

Luca Ratti

Jan-Pieter Vos
Case Reports

Access_open 2022/2 Unions have no veto over employer negotiations with staff (UK)

Keywords Collective Agreements
Authors David Hopper and Kerry Salisbury
AbstractAuthor's information

    The Supreme Court has confirmed that recognised trade unions do not have a veto over employers making direct offers to their members to change terms and conditions of employment. Employers must, however, follow and exhaust the collective bargaining processes with their recognised unions before they may make direct offers with a view to resolving an impasse that has arisen.


David Hopper
David Hopper is a partner at Lewis Silkin LLP.

Kerry Salisbury
Kerry Salisbury is an associate at Lewis Silkin LLP.
Case Reports

2022/3 Liability for late implementation of EU law following ruling from the ECJ (DK)

Keywords Age Discrimination, Miscellaneous
Authors Christian K. Clasen
AbstractAuthor's information

    The Danish Ministry of Employment has been held liable for a protracted legislative process following the ECJ’s ruling in the Ole Andersen case (C-499/08), which concluded that the Salaried Employees Act was not compliant with Directive 2000/78/EC concerning equal treatment in employment and occupation (prohibition of discrimination on grounds of age).


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

    The Federal Labour Court of Germany has continued to specify the requirements for the legality of age limits in employer-funded pension plans under German law. In this case, according to the Court, the employer could impose a maximum age of 55 as a requirement of entry to the company pension plan.


Othmar K. Traber
Othmar Traber is a partner at Ahlers & Vogel, Bremen.
Case Reports

2022/5 Breach of procedure leads to legal presumption of discrimination against a severely disabled applicant (GE)

Keywords Discrimination General, Disability Discrimination
Authors Susanne Burkert-Vavilova
AbstractAuthor's information

    The German Federal Labour Court has held that where a job-filling procedure disregards mandatory procedural and/or promotional obligations in favour of severely disabled persons, this results in the presumption that an unsuccessful severely disabled applicant had not been considered in the procedure and hence had been disadvantaged on account of their severe disability. In the case at hand the severely disabled job applicant was entitled to compensation for non-pecuniary damage.


Susanne Burkert-Vavilova
Susanne Burkert-Vavilova is an attorney-at-law at Luther Rechtsanwaltsgesellschaft mbH.

    In a case arising from the sudden collapse of a construction company, the Employment Appeal Tribunal has confirmed the limited scope of the ‘special circumstances’ defence for not consulting on collective redundancies.


David Hopper
David Hopper is a partner at Lewis Silkin LLP.

Kerry Salisbury
Kerry Salisbury is an associate at Lewis Silkin LLP.
Case Reports

2022/7 Dismissal for violation of Covid-19 quarantine order (AT)

Keywords Unfair dismissal
Authors Andreas Tinhofer and Isabella Göschl
AbstractAuthor's information

    The Supreme Court has decided that the summary dismissal of an employee for violating a Covid-19 quarantine order by appearing at work is effective and justified.


Andreas Tinhofer
Andreas Tinhofer is a partner at ZFZ Zeiler Rechtsanwälte GmbH.

Isabella Göschl
Isabella Göschl is a junior associate at ZFZ Zeiler Rechtsanwälte GmbH.
Case Reports

2022/8 Port Labour Act not in conflict with the Belgian Constitution (BE)

Keywords Free Movement, Work and Residence Permit
Authors Heleen Franco and Julien Hick
AbstractAuthor's information

    In its judgment of 25 November 2021, the Belgian Constitutional Court has upheld the obligation to call on recognised dock workers for the activity consisting of preparing trailers on a dock for shipment with a vehicle specifically intended for that purpose (known as a ‘tugmaster tractor’). The obligation to rely solely on recognised dock workers for the performance of port work is justified, among other things, by the need to improve safety in port areas and to prevent accidents at work. The identical treatment of, on the one hand, the loading and unloading of ships in the strict sense and, on the other hand, the activity of preparing trailers on a dock for shipment with a tugmaster tractor, does not breach the principle of equality and non-discrimination. Therefore, equal treatment of both types of port labour, with regard to the obligation to call on recognised dock workers, is reasonably justified.


Heleen Franco
Heleen Franco is a senior associate at AKD, Brussels.

Julien Hick
Julien Hick is a partner at AKD, Brussels.

    The Iaşi Court of Appeal in Romania has upheld a decision issued by the Vaslui Tribunal which found that an employee cannot be the subject of disciplinary action for the refusal to perform work during their weekly rest notwithstanding that a working time schedule imposed by the employer was based on the applicability of an internal company policy.


Andreea Suciu
Andreea is Managing Partner of Suciu | The Employment Law Firm

Andreea Oprea
Andreea is an attorney-at-law at Suciu | The Employment Law Firm.

    Working as a rider for the Deliveroo platform is a professional activity that can be performed as a self-employed worker, the Labour Tribunal of Brussels has decided, which also ruled out the possibility of Deliveroo riders enjoying the fiscally beneficial status available for workers active on electronic platforms of the collaborative economy (or ‘sharing economy’).


Gautier Busschaert
Gautier Busschaert is an attorney-at-law at Van Olmen & Wynant, Brussels.

    On 1 December 2021, just prior to the transposition deadline for Directive (EU) 2019/1937 on the protection of persons who report breaches of Union law (the ‘Whistleblowing Directive’), the Irish Supreme Court delivered a judgment that may have an impact on the Protected Disclosures (Amendment) Bill, the piece of legislation intended to be enacted in order to comply with the Whistleblowing Directive. The judgment noted that, while the Oireachtas (the Irish parliament) had envisaged that most complaints for which whistleblower protection would be sought would concern matters of public interest, the actual definition of ‘protected disclosure’ in the Protected Disclosures Act 2014 (the ‘2014 Act’) extends further than that and can cover complaints in the context of employment which are personal to the reporting person. While Ireland has missed the deadline and has yet to enact the Protected Disclosures (Amendment) Bill, one of the intended amendments has been changed since this judgment was delivered.


Sarah O’Mahoney
Sarah O’Mahoney is a General Knowledge Lawyer at Mason, Hayes & Curran, Dublin.
Rulings

ECtHR 1 March 2022, app. no. 16695/19 (Kozan – v – Turkey), Other Fundamental Rights

İbrahim Kozan – v – Turkey, Turkish case

Keywords Other Fundamental Rights
Abstract

    A disciplinary sanction imposed on a serving judge for sharing a critical press article on Facebook constitutes a violation of the freedom of expression.

Rulings

ECJ 13 January 2022, case C-282/19 (MIUR en Ufficio Scolastico Regionale per la Campania), Religious Discrimination, Fixed-Term Work

Various employees – v – Ministero dell’Istruzione, dell’Università e della Ricerca – MIUR, Ufficio Scolastico Regionale per la Campania, Italian case

Keywords Religious Discrimination, Fixed-Term Work
Abstract

    The requirement to hold a suitability certificate issued by a Church authority does not justify using fixed-term contracts.

Rulings

ECJ 13 January 2022, case C-514/20 (Koch Personaldienstleistungen), Paid Leave

DS – v – Koch Personaldienstleistungen GmbH, German case

Keywords Paid Leave
Abstract

    Periods of annual leave must be taken into account when calculating whether an employee reached the threshold to be entitled to overtime payments.

Rulings

ECJ 18 January 2022, case C-261/20 (Thelen Technopark Berlin), Other Forms of Free Movement

Thelen Technopark Berlin GmbH – v – MN, German case

Keywords Other Forms of Free Movement
Abstract

    It does not follow from EU law that a national court must disapply national provisions on minimum tariffs for architects and engineers which are contrary to Directive 2006/123, although this can follow from other national provisions. Moreover, the disadvantaged party can claim compensation based on state liability as the German implementation legislation is not in conformity with EU law.

Rulings

ECJ 10 February 2022, case C-485/20 (HR Rail), Disability Discrimination

Employee – v – HR Rail SA, Belgian case

Keywords Disability Discrimination
Abstract

    A disabled worker who is incapable of performing the essential duties of the position shall be reassigned to a suitable position, even if s/he is still in the probationary period, provided that the reassignment does not impose a disproportionate burden on the employer.

Rulings

ECJ 10 February 2022, case C-219/20 (Bezirkshauptmannschaft Hartberg-Fürstenfeld), Posting of Workers and Expatriates

LM – v – Bezirkshauptmannschaft Hartberg-Fürstenfeld, Austrian case

Keywords Posting of Workers and Expatriates
Abstract

    Member States are allowed to impose sanctions for breaches of the Posting of Workers Directive (96/71/EC) even after five years.

Rulings

ECtHR 17 February 2022, app. no. 46586/14 (D’Amico v. Italy), Pension

Ms Immacolata Filomena D’Amico – v – Italian Government, Italian case

Keywords Pension
Abstract

    No sufficiently compelling reason justifying retrospective application of a law determining the substance of pensions disputes in pending proceedings.

Rulings

ECJ 24 February 2022, case C-262/20 (Glavna direktsia „Pozharna bezopasnost i zashtita na naselenieto”), Working Time

VB – v – Glavna direktsia „Pozharna bezopasnost i zashtita na naselenieto”, Bulgarian case

Keywords Working Time
Abstract

    It is not compulsory for the normal length of night work for firefighters to be shorter than the normal length of day work. It is allowed to provide for a maximum length of night work of 7 hours only for workers in the private sector and not for public-sector workers.

Rulings

ECJ 24 February 2022, case C-389/20 (TGSS (domestic worker unemployment)), Gender Discrimination, Social Insurance

CJ – v – Tesorería General de la Seguridad Social (TGSS), Spanish case

Keywords Gender Discrimination, Social Insurance
Abstract

    Legislation excluding domestic workers from unemployment benefits found indirectly discriminatory.

Rulings

ECJ 24 February 2022, case C-283/20 (EULEX-KOSOVO), Miscellaneous

CO and Others – v – MJ, European Commission, European External Action Service (EEAS), Council of the European Union and Eulex Kosovo, EU case

Keywords Miscellaneous
Abstract

    Eulex Kosovo qualifies as employer and therefore as defendant in any action regarding the mission in Kosovo.

Rulings

ECJ 3 March 2022, case C-590/20 (Presidenza del Consiglio dei Ministri e.a. (Médecins spécialistes en formation)), Free Movement, Work and Residence Permit

Presidenza del Consiglio dei Ministri and Others – v – UK, IG and others, Italian case

Keywords Free Movement, Work and Residence Permit
Abstract

    Medical students who started their training before directive 82/76 was adopted (29 January 1982) and continued with this training after the directive came into force (1 January 1983) are entitled to remuneration for this training, provided that the training meets the applicable criteria.

Rulings

ECJ 3 March 2022, case C-634/20 (Sosiaali- ja terveysalan lupa- ja valvontavirasto), Free Movement, Work and Residence Permit

A – v – Sosiaali- ja terveysalan lupa- ja valvontavirasto, Finnish case

Keywords Free Movement, Work and Residence Permit
Abstract

    A Member State may not impose requirements to be a doctor on a person if he possesses all formal qualifications, except for a minor certificate, as the imposed requirements are not proportionate.

Rulings

ECJ 8 March 2022, case C-205/20 (Bezirkshauptmannschaft Hartberg-Fürstenfeld), Posting of Workers and Expatriates

NE – v – Bezirkshauptmannschaft Hartberg-Fürstenfeld, Austrian case

Keywords Posting of Workers and Expatriates
Abstract

    National courts must ensure that penalties for non-compliance with administrative obligations are proportionate

Rulings

ECJ 3 March 2022, case C-162/20 P (WV v EEAS), Miscellaneous

WV – v – European External Action Service, EU case

Keywords Miscellaneous
Abstract

    Internal EU case. Imposed sanctions on a EU offical found null and void.

Rulings

ECJ 10 March 2022, case C-247/20 (Commissioners for Her Majesty's Revenue and Customs (Assurance maladie complète)), Social Insurance

VI – v – The Commissioners for Her Majesty’s Revenue & Customs, UK case

Keywords Social Insurance
Abstract

    Once a child and a parent have obtained a right of permanent residence, they do not need a comprehensive sickness insurance cover. However, they do need it when they want to obtain an initial right of residence for more than three months.

Rulings

ECJ 17 March 2022, case C-232/20 (Daimler), Temporary Agency Work

NP – v – Daimler AG, Mercedes-Benz Werk Berlin, German case

Keywords Social Insurance
Abstract

    It is possible have a temporary agency worker fill in a permanent position. However, using multiple assignments may be in breach of Directive 2008/104, if the assignment is longer than ‘temporary’ and if there is no objective reason.

Rulings

ECJ 22 March 2022, case C-508/19(Prokurator Generalny), Miscellaneous

MF – v – JM, Prokurator Generalny, Rzecznik Praw Obywatelskich, Polish case

Keywords Miscellaneous
Abstract

    Inadmissibility of request whether to annul a judge’s service relationship.

Rulings

ECJ 7 April 2022, case C-236/20 (Ministero della Giustizia and Others (Status of Italian Magistrates)), Fixed-Term Work, Part Time Work, Paid Leave

PG – v – Ministero della Giustizia, CSM – Consiglio Superiore della Magistratura, Presidenza del Consiglio dei Ministri, Italian case

Keywords Fixed-Term Work, Part Time Work, Paid Leave
Abstract

    Peace judges must be treated like ordinary judges.

Pending Cases

Case C-718/21, Miscellaneous

LG – v – Krajowa Rada Sądownictwa, reference lodged by the Sąd Najwyższy (Poland) on 26 November 2021

Keywords Miscellaneous
Pending Cases

Case C-710/21, Insolvency, Social Insurance

IEF Service GmbH – v – HB, reference lodged by the Oberster Gerichtshof(Austria) on 25 November 2021

Keywords Insolvency, Social Insurance
Pending Cases

Case C-731/21, Social Insurance

GV – v – Caisse nationale d’assurance pension, reference lodged by the Cour de cassation du Grand-Duché de Luxembourg (Luxembourg) on 1 December 2021

Keywords Social Insurance
Pending Cases

Case C-731/21, Miscellaneous, Fundamental Rights

DM – v – Azienda Ospedale-Università di Padova, reference lodged by the Tribunale ordinario di Padova (Italy) on 13 December 2021

Keywords Miscellaneous, Fundamental Rights
Pending Cases

Case C-134/22, Collective Redundancies

MO – v – SM, as trustee of G GmbH, reference lodged by the Bundesarbeitsgericht (Germany) on 1 March 2022

Keywords Collective Redundancies
Pending Cases

Case C-30/22, Social Insurance

DV – v – Direktor na Teritorialno podelenie na Natsionalnia osiguritelen institut – Veliko Tarnovo, reference lodged by the Administrativen sad Veliko Tarnovo (Bulgaria) on 12 January 2022

Keywords Social Insurance
Pending Cases

Case C-57/22, Paid Leave

YQ – v – DŘeditelství silnic a dálnic ČR, reference lodged by the Nejvyšší soud České republiky (Czech Republic) on 28 January 2022

Keywords Paid Leave
Pending Cases

Case C-45/22, Social Insurance, Pension

HK – v – Service fédéral des Pensions (SFP), reference lodged by the Tribunal du travail francophone de Bruxelles (Belgium) on 20 January 2022

Keywords Social Insurance, Pension
Pending Cases

Case C-52/22, Age Discrimination, Pension

BF – v – Versicherungsanstalt öffentlich Bediensteter, Eisenbahnen und Bergbau, reference lodged by the Bundesverwaltungsgericht (Austria) on 26 January 2022

Keywords Age Discrimination, Pension