European Employment Law Cases

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Issue 2, 2023 Expand all abstracts

Promoting social dialogue in the EU

Authors Zef Even

Zef Even
Case Reports

2023/13 Dismissal after long-term incapacity is not proven to be discriminatory (BE)

Keywords Disability discrimination
Authors Gautier Busschaert
AbstractAuthor's information

    Despite having been on sick leave for six months at the moment of dismissal, the Labour Court of Brussels considered that a claimant did not establish a prima facie case of discrimination which would allow the burden of proof to be reversed.

Gautier Busschaert
Gautier Busschaert is an attorney at Van Olmen & Wynant, Brussels.
Case Reports

2023/14 Can employers require disabled employees to wear face masks? (UK)

Keywords Disability discrimination
Authors Holly Wray and Sarah McWhinney
AbstractAuthor's information

    An employment tribunal (ET) decision has considered whether it could be an act of indirect disability discrimination to require a disabled employee to wear a face mask at work.

Holly Wray
Holly Wray is an associate at Lewis Silkin LLP.

Sarah McWhinney
Sarah McWhinney is a legal director at Lewis Silkin LLP.
Case Reports

2023/15 Appointment of military chaplains and religious discrimination (IR)

Keywords Religious Discrimination
Authors Karen Hennessy
AbstractAuthor's information

    An Irish Workplace Relations Commission (‘WRC’) adjudication has found that the complainant, who was an atheist, was discriminated against on grounds of religion. The respondent government department was ordered to review the process of appointing military chaplains to ensure compliance with the Irish Employment Equality Act 1998 (‘EEA’). The scope of this adjudication relates to the ability to apply for a role and whether this constituted discrimination on grounds of religion. The complainant asserted that he was discriminated against by the Department of Defence (the respondent) in the appointment of a military chaplain at Aiken Barracks and Gormanston Army Camp on 6 November 2020 as he was an atheist. The respondent denied the claim, relying on Section 37(2) of the EEA and the occupational requirements relating to chaplaincy to the Defence Forces, in particular the role of the chaplain in conflict zones, notably Lebanon. The respondent alleged that chaplains build contacts with local religious leaders and a Christian chaplain would be more accepted by certain communities in Lebanon than a humanist chaplain would be, and thus amounted to a ‘genuine occupational requirement’ within the meaning of Section 37(2) of the EEA.

Karen Hennessy
Karen Hennessy is a solicitor at Mason Hayes & Curran LLP, Dublin.

    A decision of the Sheriff’s Court in Dunfermline, Scotland has applied a wide interpretation of the legal proceedings exemption to data protection obligations in the context of use of a non-party’s personal data in the Employment Tribunal (ET).

Ali Vaziri
Ali Vaziri is a partner at Lewis Silkin LLP

    The Danish Maritime and Commercial Court has ruled that a worker was covered by the Temporary Agency Workers Act even though they were assigned to the same workplace for three years and eight months.

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

    The Italian Supreme Court has held in three different decisions of 2022 that, even if not provided for by Italian legislation, temporariness is a mandatory requirement for the lawfulness of agency work in accordance with Directive 2008/104/EC. Italian courts must therefore define, on a case-by-case basis, if the reiteration of agency work assignments at the same user undertaking can be considered in violation of the Italian legislation and the EU rules.

Ornella Patané
Ornella Patané is a partner at Toffoletto De Luca Tamajo, Milan.
Case Reports

2023/19 When does using agency workers lead to a concealed employment relationship between the workers and the user company? (SI)

Keywords Temporary agency work, Employment status
Authors Petra Smolnikar and Tjaša Marinček
AbstractAuthor's information

    The Supreme Court of the Republic of Slovenia has issued a judgment concerning the contractual relationship between a worker who had an employment relationship with a de facto employment agency (the ‘agency’) but was continuously working for a port operating company. Given that the ‘agency’ was not registered for the activity of providing labour to a user company and that the agency work was not temporary, the Court found such behaviour constituted a breach of the fundamental requirements arising out of Directive 2008/104/EC on temporary agency work.

Petra Smolnikar
Petra Smolnikar is the founder and manager of PETRA SMOLNIKAR LAW (Odvetništvo Petra Smolnikar), in Ljubljana, Slovenia (

Tjaša Marinček
Tjaša Marinček is a student assistant at PETRA SMOLNIKAR LAW (Odvetništvo Petra Smolnikar), in Ljubljana, Slovenia (

    On 24 March 2023, the Dutch Supreme Court finally ruled on the employment status of Deliveroo riders in the Netherlands. The Supreme Court has followed the earlier ruling of the Amsterdam Court of Appeal and ruled that Deliveroo riders qualify as employees (instead of self-employed workers). Even though the Advocate General of the Supreme Court advised the Court to develop new criteria for determining whether a worker qualifies as an employee or not, the Supreme Court applied roughly the same criteria as it had done in the past. The Supreme Court considered that developing new general rules for determining whether a worker is self-employed or employed is up to the national and European legislators.

Manon Lucassen
Manon Lucassen is an associate at Palthe Oberman Advocaten.

ECJ 27 April 2023, case C-192/22 (Bayerische Motoren Werke), Paid Leave

FI – v – Bayerische Motoren Werke AG, German case

Keywords Paid Leave

    Annual leave cannot lapse if the worker could not take the leave due to sickness, before he was exempted from work, even where it is not a long-term absence.


ECJ 27 April 2023, case C-681/21 (BVAEB (Montant de la pension de retraite)), Age Discrimination, Pension

Versicherungsanstalt öffentlich Bediensteter, Eisenbahnen und Bergbau (BVAEB) – v – BB, Austrian case

Keywords Age Discrimination, Pension

    Amending the pension scheme of a previously advantaged category of workers: no retroactive effect allowed, unless an overiding reason in the public interest exists.


ECJ 4 May 2023, joined cases C-529/21-C-536/21 and C-732/21-C-738/21 (Glavna direktsia „Pozharna bezopasnost i zashtita na naselenieto“ (Travail de nuit)), Working Time

15 employees – v –Glavna direktsia ‘Pozharna bezopasnost i zashtita na naselenieto’ kam Ministerstvo na vatreshnite raboti, Bulgarian case

Keywords Working Time

    The Working Time Directive also applies to public sector workers, such as firefighters, in so far as those workers carry out their activities under normal circumstances. Public sector workers may be subject to less favourable rules on night work than private sector workers, provided that the difference in treatment is based on an objective and reasonable criterion, i.e. relates to a permitted aim and is proportionate to that aim.


ECJ 11 May 2023, case C-155/22 (Bezirkshauptmannschaft Lilienfeld), Miscellaneous, Work and Residence Permit

RE – v – Bezirkshauptmannschaft Lilienfeld, Arbeitsinspektorat NÖ Wald- und Mostviertel, Austrian case

Keywords Miscellaneous, Work and Residence Permit

    A road transport undertaking cannot discharge its responsibility to comply with driving times and rest periods to another person, without national laws being able to hold that person’s behaviour against the applicable requirements for those undertakings.


ECJ 15 June 2023, case C-132/22 (Ministero dell’Istruzione, dell’Università e della Ricerca (Classements spéciaux)), Free Movement

BM, NP – v – Ministero dell’Istruzione, dell’Università e della Ricerca – MIUR, Italian case

Keywords Free Movement

    A Member State may not exclude professional experience gained in other Member States from consideration in admitting candidates to a candidate list for the recruitment of staff in national public higher-education institutions, as this puts both foreign applicants as domestic applicants with foreign experience at a disadvantage.


ECJ 15 June 2023, case C-499/21 P, C-501/21 P and C-502/21 P (Shindler and Others v Council), Miscellaneous

Harry Shindler and Others – v – Council of the European Union, EU Case

Keywords Miscellaneous

    British citizens have lost their rights as EU citizens as a result of Brexit.


ECJ 15 June 2023, case C-411/22 (Thermalhotel Fontana), Free Movement, Social Insurance

Thermalhotel Fontana Hotelbetriebsgesellschaft mbH – v – Bezirkshauptmannschaft Südoststeiermark, Austrian case

Keywords Free Movement, Social Insurance

    Compensation granted during Covid-19 isolation does not qualify as ‘sickness benefit’ within the meaning of Regulation 883/2004. However granting such compensation only to domestic quarantined workers is indirectly discriminatory (and illegitimate), as cross-border workers are denied such compensation.


ECJ 22 June 2023, case C-427/21 (ALB FILS Kliniken GmbH), Temporary Agency Work, Employees who transfer/refuse to transfer

LD – v – ALB FILS Kliniken GmbH, German case

Keywords Temporary Agency Work, Employees who transfer/refuse to transfer

    The Temporary Agency Work Directive does not apply to an employee who has used its right of refusal to transfer to another group entity and is consequently permanently assigned from the transferor to the transferee.


ECJ 22 June 2023, case C-579/21 (Pankki S), Privacy

J.M. – v – Apulaistietosuojavaltuutettu, Pankki S, Finnish case

Keywords Privacy

    While every person has the right to know the date of and reasons for the consultation of his/her personal data, such information does, in principe, not include names of the employees who consulted this information.


ECJ 6 July 2023, case C-404/22 (Ethnikos Organismos Pistopoiisis Prosonton & Epangelmatikou Prosanatolismou), Information and Consultation

Ethnikos Organismos Pistopoiisis Prosonton & Epangelmatikou Prosanatolismou (Eoppep) – v – Elliniko Dimosio, Greek case

Keywords Information and Consultation

    Directive 2002/14 also applies to private companies exercising public powers, if they also compete with other market operators. The information and consultation obligation does not apply to changes in post of a small number of interim managers.


ECJ 13 July 2023, case C-765/21 (Azienda Ospedale-Università di Padova), Other Fundamental Rights

D.M. – v – Azienda Ospedale-Università di Padova, Italian case

Keywords Other Fundamental Rights

    Questions regarding COVID 19-vaccination requirement in order to be granted access to the workplace found inadmissible.


ECJ 13 July 2023, case C-134/22 (G GmbH), Collective Redundancies

MO – v – SM as liquidator of G GmbH, German case

Keywords Collective Redundancies

    The requirement to notify a public authority about upcoming collective redundancies is not intended to grant individual protection on the workers affected.

Pending Cases

Case C-163/23, Fixed-term Work

Governo Italiano – v – UX, reference lodged by the Giudice di pace di Bologna (Italy) on 14 March 2023

Keywords Fixed-term Work
Pending Cases

Case C-195/23, Social Insurance, Pension

GI – v – Partena Assurances Sociales pour Travailleurs Indépendants ASBL, reference lodged by the Tribunal du travail francophone de Bruxelles (Belgium) on 27 March 2023

Keywords Social Insurance, Pension
Pending Cases

Case C-164/23, Miscellaneous

VOLÁNBUSZ Zrt. – v – Bács-Kiskun Vármegyei Kormányhivatal, reference lodged by the Szegedi Törvényszék (Hungary) on 16 March 2023

Keywords Miscellaneous
Pending Cases

Case C-196/23, Collective Redundancies

Various applicants – v – DB, Fogasa, reference lodged by the Tribunal Superior de Justicia de Cataluña (Spain) on 24 March 2023

Keywords Collective Redundancies
Pending Cases

Case C-323/23, Social Insurance

DS – v – Pensionsversicherungsanstalt, reference lodged by the Oberster Gerichtshof (Austria) on 25 May 2023

Keywords Social Insurance
Pending Cases

Case C-284/23, Social Insurance

EP – v – Ministarstvo financija Republike Hrvatske, Samostalni sektor za drugostupanjski upravni postupak, reference lodged by the Ustavni sud Republike Hrvatske (Croatia) on 28 April 2023

Keywords Social Insurance
Pending Cases

Case C-314/23, Gender Discrimination

Sindicato de Tripulantes Auxiliares de Vuelo de Líneas Aéreas (STAVLA) – v – Various parties, reference lodged by the Audiencia Nacional (Spain) on 22 May 2023

Keywords Gender Discrimination