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    An ‘independent contractor’ working for a company in a subordinate relationship should be considered as a de facto employee. In such a situation, the company and its legal representatives can be held liable for ‘concealed work’ and be subject to criminal penalties.


Charles Mathieu
Charles Mathieu is a lawyer with Jeantet in Paris, www.jeantet.fr.
Case Reports

2016/3 Supreme Court allows transferee to differentiate between ‘own’ and acquired employees (PL)

Journal European Employment Law Cases, Issue 1 2016
Keywords Differing the monthly wages after the workplace has been moved on to another employer
Authors Ph.D Marcin Wujczyk
AbstractAuthor's information

    Paying employees acquired by way of the transfer of an undertaking less than the transferee’s original staff not discriminatory. The Supreme Court recently came to this conclusion based on a rather daring interpretation of a provision of national law aimed at transposing an EU directive. Although Polish law obligates employers to treat employees who perform the same work equally regardless of personal characteristics, the provision at issue should be read more narrowly.


Ph.D Marcin Wujczyk
Marcin Wujczyk, Ph. D., is a partner with Ksiazek & Bigaj in Krakow, www.ksiazeklegal.pl.
ECJ Court Watch

Case C-539/15. Age Discrimination

Daniel Bowman –v– Pensionsversicherungsanstalt, reference lodged by the Austrian Oberster Gerichtshof on 15 October 2015

Journal European Employment Law Cases, Issue 1 2016
Keywords age discrimination

    The Danish Supreme Court recently affirmed that the transfer of a canteen contract to another operator following a tender process did not fall within the scope of the Danish Transfer of Undertakings Act.
    The Danish Transfer of Undertakings Act applies to the transfer of an undertaking or part of an undertaking, meaning an economic entity which retains its identity. In the test of whether a transfer is a transfer within the meaning of the Act, an overall assessment of all facts surrounding the transfer must be made. This was the issue in this case before the Supreme Court.


Mariann Norrbom
Mariann Norrbom is a partner of Norrbom Vinding, Copenhagen, www.norrbomvinding.com.
Case Reports

2016/10 Associative victimisation claim allowed to proceed (UK)

Journal European Employment Law Cases, Issue 1 2016
Keywords associative victimisation, degree of association required in associative discrimination, no reasonable prospect of success
Authors Anna Bond
AbstractAuthor's information

    The Employment Appeal Tribunal (‘EAT’) has allowed a claim of ‘associative victimisation’ to proceed, reversing an Employment Tribunal (‘ET’) judge’s decision to strike it out. Victimisation occurs where someone is subjected to a detriment because of a ‘protected act’ (such as alleging discrimination). In this case, the claimant claimed he had been subjected to a detriment because someone else associated with him had alleged discrimination. The second ET judge to hear the case held that there was not a close enough connection between the claimant and those who made the allegation of discrimination, and struck out the claim. The EAT held that the judge was wrong to find that Mr Thompson was required to show some particular relationship to the person whose protected act was relied upon, and in fact the association could be entirely in the mind of the employer. Association will be a question of fact in each case.
    This was the first case in the UK to find that it is possible to bring a claim of victimisation by association, and could represent a significant development in UK discrimination law.


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

Case C-508/15. Free Movement

Sidika Ucar –v– Land Berlin, reference lodged by the German Verwaltungsgericht Berlin on 24 September 2015

Journal European Employment Law Cases, Issue 1 2016
Keywords free movement

    An employee’s behaviour during the investigation of a sexual harassment complaint that she had made against her manager was a crucial factor in the Court’s decision to dismiss her application for damages for unlawful termination and discrimination.


Panayiota Papakyriacou
Panayiota Papakyriacou is a lawyer with George Z. Georgiou & Associates LLC in Nicosia, Cyprus, www.gzg.com.cy.
ECJ Court Watch

Case C-518/15. Working Time

Ville de Nivelles –v– Rudy Matzak, reference lodged by the Belgian cour du travail de Bruxelles on 28 September 2015

Journal European Employment Law Cases, Issue 1 2016
Keywords working time
ECJ Court Watch

ECJ 17 November 2015, case C-115/14. (Regio Post), Social Dumping

RegioPost GmbH & Co. KG –v– Stadt Landau in der Pfalz, German case

Journal European Employment Law Cases, Issue 1 2016
Keywords social dumping

    The compensation for an employee who is a victim of unlawful dismissal should be as comprehensive as possible, but only harm that is directly linked to the dismissal should be compensated. Material damage suffered by an employee in a senior position may include benefits such as profit shares received in his or her position as an equity partner. In this case, the Court of Appeal ordered a firm to pay a former employee the exceptional amount of more than one million Euros in compensation for wrongful dismissal.


Michel Molitor
Michel Molitor is an avocat with MOLITOR, www.molitorlegal.lu.
ECJ Court Watch

Opinion of Advocate-General Bot of 25 November 2015 in case C-441/14. (Ajos), Age Discrimination

Dansk Industri, acting on behalf of Ajos A/S –v– Estate of Karsten Eigil Rasmussen, Danish case

Journal European Employment Law Cases, Issue 1 2016
Keywords age discrimination
ECJ Court Watch

ECJ 3 March 2016, case C-12/14. Free Movement – Social Insurance

European Commission –v– Republic of Malta

Journal European Employment Law Cases, Issue 1 2016
Keywords free movement – social insurance

    Under Irish law, an employee claiming compensation for constructive dismissal bears a high burden of proof. Failure to exhaust the employer’s grievance procedure before bringing such a claim to court is generally a recipe for failure. However, a CEO who brought such a claim without first going through the grievance procedure was recently awarded record compensation of € 1.25 million.


Orla O’Leary
Orla O’Leary is a solicitor with Mason Hayes & Curran in Dublin, www.mhc.ie.

    Mr Abrams was a member of a limited liability partnership (LLP) and was due to retire. For tax reasons, shortly before retirement Mr Abrams decided to set up a limited company to take his place as a member of the LLP. This was accepted by the LLP. Mr Abrams’s employment by the LLP was stopped and he no longer had a continuing contractual relationship with it. The limited company, as a member of the LLP, was entitled to receive the profit share that Mr Abrams would have received had he continued as a member. It was also agreed that this limited company would supply the services of an appropriate fee-earner to the LLP (which was, in practice, Mr Abrams).
    When Mr Abrams reached retirement age, the LLP tried to terminate his services on the basis that he had reached retirement age and the LLP objected to Mr Abrams’s limited company continuing to be a member of the LLP.
    Mr Abrams and his company brought a claim of age discrimination against the LLP at the Employment Tribunal (ET) and the ET had to decide if a limited company could bring such a claim, which was effectively that it had suffered detrimental treatment because of a protected characteristic of someone with whom it was associated. The ET decided it could and the respondent appealed to the Employment Appeal Tribunal (EAT).


Florence Chan
Florence Chan is a Legal Assistant at Lewis Silkin Hong Kong: www.lewissilkinemployment.com.

    An employee who does not recover from illness during the calendar year in which he accrues paid leave (the ‘leave year’) and who continues to be incapable of taking that leave, loses the right to take it 15 months after the end of the leave year, i.e. on March 31 of the second calendar year following the leave year. If his employment terminates within that 15 month period, his entitlement to leave converts into a claim for payment in lieu, and as such, can be claimed by his heirs if he dies.


Paul Schreiner
Paul Schreiner and

Dagmar Hellenkemper
Dagmar Hellenkemper are Rechtsanwälte with Luther Rechtsanwaltsgesellschaft mbH, www.luther-lawfirm.com.
ECJ Court Watch

Case C-454/15. Insolvency Protection

Jürgen Webb-Sämann –v– Christopher Seagon acting as liquidator in the insolvency of Baumarkt Praktiker DIY GmbH, reference lodged by the German Hessisches Landesarbeitsgericht on 24 August 2015

Journal European Employment Law Cases, Issue 1 2016
Keywords insolvency protection
ECJ Court Watch

Case C-569/15. Free Movement – Social Insurance

X –v– Staatssecretaris van Financiën, reference lodged by the Dutch Hoge Raad on 5 November 2015

Journal European Employment Law Cases, Issue 1 2016
Keywords free movement – social insurance

    The European Court of Human Rights (ECtHR) has recently ruled on a Hungarian law suspending payment of civil servants’ pensions for the period during which they are employed in certain areas of the public sector. The ECtHR found this law to be discriminatory as it breaches Article 14 of the European Convention on Human Rights (ECHR) read in conjunction with Article 1, Protocol 1. Hungary, as the respondent State, is to pay pecuniary and non-pecuniary damages and procedural costs and expenses to the applicant, Mr Gyula Fábián. The judgment was delivered on 15 December 2015 and, if not appealed to the Grand Chamber, will cease to be appealable on 15 March 2016.


Dr. Ildiko Ratkai
Dr. Ildiko Ratkai is a lawyer with Ratkai Law Firm, www.ratkai.com in Budapest.

    In accordance with EU law, the prohibition against gender-based discrimination (in this case: dismissal relating to pregnancy) cannot be limited to employment relationships as defined in national law: it must also apply to other types of legal relationship, where one party provides services to another party for consideration, for an open-ended period of time under the supervision of a principal.


Gabriella Ormai
Gabriella Ormai is a partner and

Péter Bán
Péter Bán is senior counsel with CMS Cameron McKenna LLP, www.cms-cmck.com.
ECtHR Court Watch

ECtHR 26 November 2015, application 64846/11. (Ebrahimian), Religious Discrimination

Christiane Ebrahimian –v– France, French case

Journal European Employment Law Cases, Issue 1 2016
Keywords Religious Discrimination
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