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Journal European Employment Law Cases x

    A company had leased some employees from a temporary work agency between 2008 and 2012 to work alongside its own employees on a continuous basis. The collective bargaining agreement that the company was bound by restricted the use of temporary agency workers to situations in which the work could not be performed by the company’s own staff. The trade union brought an action before the Labour Court claiming that the company had used temporary agency workers continuously to a greater extent than permitted by the collective bargaining agreement and that the employers’ association, of which the company was a member, had breached its supervisory duty. In a preliminary ruling, the ECJ held that the Temporary Agency Work Directive (2008/104/EC) does not oblige national courts to refuse to apply national law containing prohibitions or restrictions, even if those restrictions were not justified. Having confirmed that national restrictions may be applied, the Labour Court imposed a compensatory fine of € 3,000 on the company and € 4,000 on the employers’ association.


Kaj Swanljung

Janne Nurminen
Kaj Swanljung and Janne Nurminen are, respectively, Senior Counsel and Senior Associate, with Roschier in Helsinki, www.roschier.com.

    The French state was held liable by the Administrative Court of Clermont-Ferrand for failing to transpose Article 7§1 of EU Directive 2003/88/EC on working time.


Claire Toumieux
Claire Toumieux and Susan Ekrami are a partner and associate with Allen & Overy LLP in Paris, www.allenovery.com.

Susan Ekrami
ECtHR Court Watch

ECtHR 15 September 2016, application 44818/11. (Gurkha), Discrimination

British Gurkha Welfare Society and others – v – the United Kingdom

Journal European Employment Law Cases, Issue 3 2016
Keywords Discrimination
Abstract

    The ECtHR found no violation of Article 14 of the Convention read together with Article 1 of Protocol 1, in the pension schemes applying to the Brigade of Gurkhas. Although Gurkha soldiers could be regarded as having been treated less favourably than other soldiers in the British army, any difference in treatment had been objectively and reasonably justified.

    A staffing agency rejected an application for an advertised job because the applicant refused to remove her hijab. The court of first instance saw no discrimination, the Court of Appeal did. The plaintiff was awarded €500 but had to bear her own legal expenses.


Caterina Rucci
Caterina Rucci is a partner at Bird & Bird in Milan, www.twobirds.com.
ECJ Court Watch

Case C-48/16. Commercial agents

ERGO Poisťovňa, a.s. – v – Alžbeta Barlíková, reference lodged by the Slovak Okresný súd Dunajská Streda on 27 January 2016

Journal European Employment Law Cases, Issue 3 2016
Keywords Commercial agents

    The Supreme Court of Lithuania recently affirmed that the courts have no competence to assess the merits of an employer’s decision to restructure and make staff redundant, as the decision was at the employer’s discretion to make.


Inga Klimašauskienė
Inga Klimašauskienė is an Associate Partner at GLIMSTEDT Law Firm in Vilnius, www.glimstedt.lt.
ECtHR Court Watch

ECtHR 2 June 2016, application 23646/09. (Geotech), Freedom of Association

Geotech Kancev GmbH – v – Germany, German case

Journal European Employment Law Cases, Issue 3 2016
Keywords Freedom of association
Abstract

    A company’s obligation to participate in the building industry’s Social Welfare Fund did not breach the company’s right to freedom of association, nor its right to protection of property.

    The Danish Supreme Court has ruled that a provision in a collective agreement allowing employers to pay reduced allowances for working in the evenings, on nights and at weekends to employees under the age of 25 in full-time education and working no more than 15 hours a week was not in conflict with the Danish Anti-Discrimination Act since it was justified by a legitimate aim.


Mariann Norrbom
Mariann Norrbom is a partner of Norrbom Vinding, Copenhagen, www.norrbomvinding.com.
ECJ Court Watch

Case C-189/16. Social security

Boguslawa Zaniewicz-Dybeck – v – Pensionsmyndigheten, reference lodged by the Swedish Högsta förvaltningsdomstolen on 4 April 2016

Journal European Employment Law Cases, Issue 3 2016
Keywords Social security

    The Employment Appeal Tribunal (‘EAT’) has upheld an Employment Tribunal’s (‘ET’s’) finding that Article 8 of the European Convention on Human Rights (‘ECHR’) was not engaged when an employer used private material obtained by the police during a criminal investigation as part of an internal disciplinary investigation into one of its employees. This material had been taken from the claimant’s phone by the police, who then provided it to the employer (stating that it could be used for the purposes of their investigation). The facts in this case were unusual. Whether or not an employee has a reasonable expectation of privacy in similar circumstances will depend on all the facts, including the source of the information, whether the employee has expressly objected to its use, and whether the relevant conduct took place in, or was brought into, the workplace.


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

ECJ 16 June 2016, case C-351/14 (Rodríguez Sánchez), Parental leave

Estrella Rodríguez Sánchez – v – Consum siciedad Cooperativa Valenciana

Journal European Employment Law Cases, Issue 3 2016
Keywords Parental leave
Abstract

    The questions referred to the ECJ in this particular case on the interpretation of Clause 6(1) of the Framework Agreement on parental leave (employers must “consider and respond to” employees’ requests for changes to their working patterns) are inadmissible.

ECJ Court Watch

Case C-97/16. Self-employment

José María Pérez Retamero – v – TNT Express et al, reference lodged by the Spanish Juzgado de lo Social No 3 de Barcelona on 17 February 2016

Journal European Employment Law Cases, Issue 2 2016
Keywords Self-employment

    Article 60(1)(g) of the Romanian Labour Code does not allow an employer to dismiss trade union leaders for reasons other than disciplinary misconduct or judicial reorganisation, dissolution or bankruptcy of the employer. The Constitutional Court has recently ruled that Article 60(1)(g) is unconstitutional.


Andreea Suciu
Andreea Suciu is Head of Employment & Pensions with Noerr in Bucharest, www.noerr.com.
ECJ Court Watch

ECJ 21 January 2016, case C-515/14 (Cyprus), freedom of movement

European Commission – v – Republic of Cyprus

Journal European Employment Law Cases, Issue 2 2016
Keywords Freedom of movement
Abstract

    Cypriot law on civil servants’ pensions violates EU law.

ECJ Court Watch

Case C-668/15. Racial discrimination

Jyske Finans A/S – v – Ligebehandelingsnaevnet, acting on behalf of Ismar Huskic, reference lodged by the Danish Vestre Landsret on 14 December 2015

Journal European Employment Law Cases, Issue 2 2016
Keywords Racial discrimination
ECJ Court Watch

Case C-20/16. Free movement – Tax

Wolfram Bechtel, Marie-Laure Bechtel – v – Finanzamt Offenburg, reference lodged by the German Bundesfinanzhof on 15 January 2016

Journal European Employment Law Cases, Issue 2 2016
Keywords Free movement, Tax

    A decision issued by the Constitutional Court on 3 March 2016 upholds a High Court decision on whether evidence obtained through video surveillance at the work place without previously informing the employee or the works council of the recording infringes employees’ privacy. The existence of cameras in the workplace was only made known via a sticker on the shop window, but the Constitutional Court found that it provided sufficient information to employees. The Court found that, as there was a prior suspicion of theft by the employee, temporary recording of the cashier area was lawful and did not require prior consent. The judgment sets out the criteria to be used to determine a fair balance between the competing interests of employee privacy and the employer’s right to compliance.


Sonia Cortes
Sonia Cortes is a partner with Abdón Pedrajas & Molero in Barcelona, www.abdonpedrajas.com. Special thanks to Isabel Ruano and Carla Baussa for their help in preparing this case report.

    For the fourth time in seven years, an Austrian court has asked the ECJ for guidance on the subject of age discrimination in pay scales. In this latest case, the period required to progress from step 1 to step 2 on the pay scale was longer than the period needed to progress from step 2 to step 3 and beyond. Does that constitute age discrimination? The author argues that it does, and that the arguments advanced to justify it are not valid.


Dr. Marta J. Glowacka
Dr. Marta J. Glowacka, LL.M. is an assistant professor at the Institute for Austrian and European Labour Law and Social Security Law at Vienna University of Economics and Business, www.wu.ac.at.
ECJ Court Watch

EFTA Court 16 December 2015, case E-5/15 (M’bye), working time

Matja Kumba T M’bye and Others – v – Stiftelsen Fossumkollektivet, Norwegian case*

Journal European Employment Law Cases, Issue 2 2016
Keywords Working time
Abstract

    An 84-hour working week imposed on resident therapists at a care home may in certain circumstances be compatible with Directive 2003/88.

    An employee challenged whether her employer’s refusal to provide childcare vouchers during maternity leave was discriminatory. The Employment Appeal Tribunal (EAT) determined, somewhat tentatively, that where childcare vouchers are provided through a salary sacrifice scheme, it is not discriminatory for employers to cease to provide childcare vouchers during maternity leave.


Catherine Hayes
Catherine Hayes is an Associate at Lewis Silkin LLP: www.lewissilkin.com.
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