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Case Reports

2017/30 Discrimination of workers’ representatives – burden of proof (LI)

Journal European Employment Law Cases, Issue 3 2017
Keywords Discrimination (other), Discrimination of workers’ representatives
Authors Vida Petrylaite
AbstractAuthor's information

    The Lithuanian Supreme Court has found discrimination against an employee based on his trade union activities and ruled that there was no need for the burden of proof to shift to the employer.


Vida Petrylaite
Vida Petrylaite is a partner with CONFIDENCE Law Office, Vilnus (www.confidence.lt).

    It was direct sex discrimination for a male employee who wished to take shared parental leave (SPL) to be entitled only to the minimum statutory pay where a female employee would have been entitled to full salary during an equivalent period of maternity leave, according to a first-instance decision from the Employment Tribunal (ET).


Anna Bond
Anna Bond is an Associate Solicitor at Lewis Silkin LLP.
ECJ Court Watch

Case C-315/17. Fixed term work

Pilar Centeno Meléndez – v – Universidad de Zaragoza, reference lodged by the Spanish Juzgado de lo Contencioso-Administrativo de Zaragoza on 29 May 2017

Journal European Employment Law Cases, Issue 3 2017
ECJ Court Watch

Case C-212/17. Fixed-term work

Simón Rodríguez Otero – v – Televisión de Galicia S.A., reference lodged by the Spanish Tribunal Superior de Justicia de Galicia on 24 April 2017

Journal European Employment Law Cases, Issue 3 2017
ECJ Court Watch

ECJ 6 April 2017, case C 336/15 (Unionen), Transfer of undertakings

Unionen – v – Almega Tjänsteförbunden and ISS Facility Services AB, Swedish case

Journal European Employment Law Cases, Issue 3 2017
Keywords Transfer of undertakings
Abstract

    A transferee must, when dismissing an employee over a year after a transfer of the undertaking, include the time he or she worked for the transferor in calculating the employee’s length of service, as this is relevant for determining the period of notice to which the employee is entitled.

    This decision of the German Federal Labour Court (‘Bundesarbeitsgericht’, or ‘BAG’) concerns what happens to leave entitlement if the employment contract is amended in the middle of the year and the number of working days changes from a four-day week to a five-day week.


Othmar K. Traber
Othmar K. Traber is a partner at Ahlers & Vogel Rechtsanwälte PartG mbB in Bremen, www.ahlers-vogel.com.
ECJ Court Watch

Case C-147/17. Working time and health and safety

Sindicatul Familia Constanța and Others – v – Direcția Generală de Asistență Socială și Protecția Copilului Constanța, reference lodged by the Romanian Curtea de Apel Constanţa on 23 March 2017

Journal European Employment Law Cases, Issue 3 2017
ECJ Court Watch

ECJ 19 July 2017, case C-143/16 (Abercrombie & Fitch Italia Srl), Age discrimination

Abercrombie & Fitch Italia Srl – v – Antonino Bordonaro, Italian case

Journal European Employment Law Cases, Issue 3 2017
Keywords Age discrimination
Abstract

    A provision which authorises an employer to make an on-call contract with a worker of under 25 years of age and to dismiss that worker as soon as he or she reaches 25, pursues a legitimate aim of employment and labour market policy and the means to attain that objective were appropriate and necessary.

Case Reports

2017/27 Supreme Court clarifies indirect discrimination test (UK)

Journal European Employment Law Cases, Issue 3 2017
Keywords General discrimination, Indirect discrimination
Authors Soyoung Lee
AbstractAuthor's information

    The Supreme Court has given a clear explanation of how the test for indirect discrimination works, holding that it is not necessary to know why a particular group is disadvantaged by an employer’s policy in order to show indirect discrimination. This decision is not particularly helpful for employers as it makes it easier for individuals to make an indirect discrimination claim. However, the Supreme Court emphasised that it is always open to an employer to show that indirect discrimination is justified.


Soyoung Lee
Soyoung Lee is an Associate Solicitor at Lewis Silkin LLP (www.lewissilkin.com).
ECJ Court Watch

ECJ 22 June 2017, case C-126/16 (Smallsteps), Transfer of undertakings

Federatie Nederlandse Vakvereniging and Others – v – Smallsteps BV, Dutch case

Journal European Employment Law Cases, Issue 3 2017
Keywords Transfer of undertakings
Abstract

    A ‘pre-pack’ agreement is outside the scope of Article 5 of the Acquired Rights Directive. In this situation, the protection of workers guaranteed by Articles 3 and 4 of that directive is maintained.

ECJ Court Watch

Case C-258/17. Discrimination and pension

E.B. – v – Versicherungsanstalt öffentlich Bediensteter BVA, reference lodged by the German Verwaltungsgerichtshof on 15 May 2017

Journal European Employment Law Cases, Issue 3 2017
ECJ Court Watch

Case C-133/17. Health and safety

Dănuț Podilă and Others – v – Societatea Națională de Transport Feroviar de Călători ‘CFR Călători’ SA București, reference lodged by the Romanian Curtea de Apel Cluj on 14 March 2017

Journal European Employment Law Cases, Issue 3 2017
ECJ Court Watch

ECJ 13 July 2017, case C-354/16 (Kleinsteuber), Part-time work and sex discrimination

Ute Kleinsteuber – v – Mars GmbH, German case

Journal European Employment Law Cases, Issue 3 2017
Keywords Part-time work, Gender discrimination
Abstract

    Distinctions made for part-time workers in calculating occupational pension can be acceptable, as long as the calculations are based on legitimate objectives in accordance with law.

    The Dutch Supreme Court decided that proceedings of a company against its managing director should be brought before the court in the country where the managing director is domiciled, in accordance with Article 20(1) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. This only applies if the managing director, in his capacity as director and manager, for a certain period of time, performed services for and under the direction of the company in return for remuneration, since in such a case it is presumed that he has an employment agreement as a worker.


Edith Franssen
Edith Franssen is an attorney at law at Loyens & Loeff and lecturer of Labour Law at the Erasmus University Rotterdam.
ECJ Court Watch

Case C-41/17. Health and safety

Isabel González Castro – v – Mutua Umivale, Prosegur España, S.L., reference lodged by the Spanish Tribunal Superior de Justicia de Galicia on 25 January 2017

Journal European Employment Law Cases, Issue 3 2017
ECJ Court Watch

Case C-252/17. Equal treatment

Moisés Vadillo González – v – Alestis Aerospace, S.L., reference lodged by the Spanish Juzgado de lo Social No 2, Cádiz on 12 May 2017

Journal European Employment Law Cases, Issue 3 2017
ECJ Court Watch

Case C-61/17. Collective redundancies

Miriam Bichat – v – APSB — Aviation Passage Service Berlin GmbH & Co. KG, reference lodged by the German Landesarbeitsgericht Berlin-Brandenburg on 6 February 2017

Journal European Employment Law Cases, Issue 3 2017
ECJ Court Watch

ECJ 13 July 2017, case C-89/16 (Szoja), Social security

Radosław Szoja – v – Sociálna poisťovňa and WEBUNG, s.r.o., Slovakian case

Journal European Employment Law Cases, Issue 3 2017
Keywords Social security
Abstract

    Marginal activities should be disregarded for the purposes of determining which national social security legislation applies.

    After the transfer of an undertaking (or part of one) the new employer cannot modify the transferred workers’ wages without their consent. This decision of the Belgian Supreme Court of 14 November 2016 leaves no leeway to the transferee to unilaterally substitute certain contractual elements with new ones, even if the new salary scheme is more advantageous overall.


Cecilia Lahaye
Cecilia Lahaye is an attorney at Van Olmen & Wynant in Brussels (www.vow.be).
Case Reports

2017/31 Lawful positive discrimination in favour of women (FR)

Journal European Employment Law Cases, Issue 3 2017
Keywords Discrimination (other), Positive discrimination
Authors Claire Toumieux and Susan Ekrami
AbstractAuthor's information

    Company agreement provisions granting a half-day of leave to female employees on International Women’s Day constitute lawful positive discrimination in favour of women.


Claire Toumieux
Claire Toumieux is a partner with Allen & Overy LLP in Paris (www.allenovery.com).

Susan Ekrami
Susan Ekrami is a senior associate with Allen & Overy LLP in Paris (www.allenovery.com).
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