A provision of Dutch law, according to which employees who lose their jobs upon retirement are excluded from the right to statutory severance compensation, is not in breach of the Framework Directive.

A worker does not automatically lose the right to annual leave because s/he did not apply for it. The employer must have informed the employee about the opportunity to take the leave adequately and in a timely way, and must be able to prove it. Based on the EU Charter of Fundamental Rights, this applies between individuals as well.

The Danish Supreme Court has held there was no discrimination against four part-time teachers at a university in that they did not receive pension contributions. Their positions could not be compared to those of full-time teachers, who were entitled to pension contributions. However, it did constitute a violation of the Danish rules on fixed-term work that the teachers had, for a number of years, been employed on several fixed-term contracts, as they had, in effect, been continuously employed in the same position. Consequently, the teachers were awarded compensation.

The sole fact that fixed-term employment relationships terminate, whereas permanent relationships do not, does not constitute discrimination. Nevertheless, fixed-term teachers should receive an allowance in lieu of untaken leave.

The Framework Agreement to protect the misuse of successive fixed-term employment contracts or relationships precludes legislation, which disapplies rules aimed against such misuse, when there is no other effective penalty.

Heirs of a deceased worker are entitled to an allowance in lieu of untaken paid annual leave. Based on the EU Charter of Fundamental Rights, this applies between individuals as well.

Following the ECJ’s decision in Somoza Hermo – v – Ilunion Seguridad, C-60/17 (Somoza Hermo) of 11 July 2018, all eyes were on the Spanish Supreme Court. Since 2016, the Court has ruled a number of times that limitations to the liability of the new contractor established in a collective bargaining agreement (‘CBA’) in the context of a CBA-led transfer were valid (see e.g. EELC 2018/21). Somoza Hermo established that a CBA-led transfer that entails a non-asset-based transfer is a transfer within the meaning of the Acquired Rights Directive. Now the Supreme Court (in a decision dated 27 September 2018 taken with one dissenting opinion) is clear that its doctrine must be reviewed and has therefore held that limitations on pre-transfer liability for a new contractor under a CBA-led transfer that trigger a non-asset-based transfer, are not valid.

The Austrian Supreme Court has held that the employer must notify the Employment Service (AMS) when it is contemplating collective redundancies, even if they are carried by mutual agreement. The duty of notification is triggered if the employer proposes a mutual termination agreement to a relevant number of employees, provided the offer is binding and can be accepted by the employees within 30 days. If the employer fails to notify the AMS, any subsequent redundancies (or mutual terminations of employment occurring on the employer’s initiative) are void, even if effected after 30 days.

The obligations regarding collective redundancies also apply to all undertakings linked to an employer by shareholdings or by other links in law which allow for decisive influence in decision-making bodies and compel it to contemplate or to plan for collective redundancies.