The Employment Appeal Tribunal (EAT) has clarified the grounds on which bad faith can be alleged in a victimisation claim under the Equality Act 2010 (‘EqA’). The EAT held that although motive in alleging victimisation could be relevant, the primary question is whether the employee acted honestly in giving the evidence or information, or in making the allegation. The concept of ‘bad faith’ is thus different in victimisation claims than whistleblowing claims. |
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Case Reports |
2019/2 Test of ‘good faith’ in victimisation claims is employee’s honesty, not motivation (UK) |
Journal | European Employment Law Cases, Issue 1 2019 |
Keywords | Discrimination, General |
Authors | Soyoung Lee |
AbstractAuthor's information |
Rulings |
ECJ 14 March 2019, case C-372/18 (Dreyer), Social insuranceMinistre de l’Action et des Comptes publics – v – Mr and Mrs Raymond Dreyer, French case |
Journal | European Employment Law Cases, Issue 1 2019 |
Keywords | Social insurance |
Abstract |
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Rulings |
ECJ 14 February 2019, case C-154/18 (Horgan), Age discriminationTomás Horgan, Claire Keegan – v – Minister for Education & Skills, Minister for Finance, Minister for Public Expenditure & Reform, Ireland, Attorney General, Irish case |
Journal | European Employment Law Cases, Issue 1 2019 |
Keywords | Age discrimination |
Abstract |
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Case Reports |
2019/7 Municipalities’ repatriation of home care services did not constitute a transfer of undertaking (DK) |
Journal | European Employment Law Cases, Issue 1 2019 |
Keywords | Transfer of undertakings, Transfer |
Authors | Christiaan K. Clasen |
AbstractAuthor's information |
The Danish Western High Court recently ruled that the Danish Act on Employees’ Rights on Transfers of Undertakings did not apply to two municipalities’ repatriation of home care services after a private-sector service provider went bankrupt. |
Case Reports |
2019/10 Employee’s right of choice between transferor and transferee in the event of a business transfer (NO) |
Journal | European Employment Law Cases, Issue 1 2019 |
Keywords | Transfer of undertakings, Employees who transfer/refuse to transfer |
Authors | Bernard Johann Mulder |
AbstractAuthor's information |
As a result of a transfer of an undertaking an employee lost her pension scheme rights. The transferor was bound by the pension scheme covering the employee which had been agreed upon in a collective agreement. However, the transferee company gave notification that it did not want to be bound by the collective agreement and, thus, the pension scheme. The Norwegian Supreme Court (Høyesterett) considered this loss a material negative change to the employment relationship. Therefore, the employee had the right to make use of the non-statutory exception rule of the right to insist upon continuation of the employment with the transferor, a non-statutory right of choice. |
Rulings |
ECJ 4 December 2018, case C-378/17 (Minister for Justice and Equality and Commissioner of the Garda Síochána), Discrimination, GeneralMinister for Justice and Equality, Commissioner of An Garda Síochána – v – Workplace Relations Commission, Irish case |
Journal | European Employment Law Cases, Issue 1 2019 |
Keywords | Discrimination, General |
Abstract |
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Case Reports |
2019/4 The Italian Jobs Act (Legislative Decree no. 23 of 2015) reforming the protection against unfair dismissal contrasts with the European Social Charter 1996 (IT) |
Journal | European Employment Law Cases, Issue 1 2019 |
Keywords | Dismissal, Unfair dismissal |
Authors | Andrea Pilati |
AbstractAuthor's information |
On 8 November 2018 the Italian Constitutional Court prohibited the reform of the protection against unfair dismissal introduced by the so-called Jobs Act (Legislative Decree no. 23 of 4 March 2015), insofar as it imposed a requirement on the judge to quantify the compensation due for unfair dismissal based on an employee’s seniority only. According to the Court, such a requirement violated not just internal constitutional norms, but also Article 24 of the (Revised) European Social Charter of 1996. This contribution focuses particularly on the EU law questions deriving from such an important judgment. |
Rulings |
ECJ 24 January 2019, case C-477/17 (EB), Social insuranceRaad van bestuur van de Sociale Verzekeringsbank – v – D. Balandin, I. Lukachenko, Holiday on Ice Services BV, Dutch case |
Journal | European Employment Law Cases, Issue 1 2019 |
Keywords | Social insurance |
Abstract |
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Editorial |
Order! |
Journal | European Employment Law Cases, Issue 1 2019 |
Law Review |
2019/1 EELC’s review of the year 2018 |
Journal | European Employment Law Cases, Issue 1 2019 |
Authors | Ruben Houweling, Catherine Barnard, Filip Dorssemont e.a. |
Abstract |
For the second time, various of our academic board analysed employment law cases from last year. However, first, we start with some general remarks. |
Pending cases |
Case C-486/18, Parental leaveRE – v – Praxair MRC, reference lodged by the Cour de cassation (France) on 23 July 2018 |
Journal | European Employment Law Cases, Issue 4 2018 |
Rulings |
ECJ 11 September 2018, case C-68/17 (IR – v – JQ), Religious discriminationIR – v – JQ, German case |
Journal | European Employment Law Cases, Issue 4 2018 |
Keywords | Religious discrimination |
Abstract |
If a religious organisation relies on an exception to the principle of equal treatment to draft rules that differ according to the religion of the employees, this must be subject to judicial review and will be acceptable only if the religion or belief constitutes a genuine and legitimate occupational requirement, justified by the ethos of the organisation concerned and the application of the exception is proportionate. If there are contrary provisions in national law, these must be disapplied. |
Pending cases |
Case C-274/18, Gender discrimination, Fixed-term workMinoo Schuch-Ghannadan – v – Medizinische Universität Wien, reference lodged by the Arbeits- und Sozialgericht Wien (Austria) on 23 April 2018 |
Journal | European Employment Law Cases, Issue 4 2018 |
Rulings |
ECJ 6 November 2018, case C-619/16 (Kreuziger), Paid leaveSebastian W. Kreuziger – v – Land Berlin, German case |
Journal | European Employment Law Cases, Issue 4 2018 |
Keywords | Paid leave |
Abstract |
A worker cannot 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 leave adequately and in a timely way, and must be able to prove this has been done. |
Case Reports |
EELC 2018/42 No reduction of vacation pay for already accrued vacation entitlement in the case of a reduction of weekly working hours later on (GE) |
Journal | European Employment Law Cases, Issue 4 2018 |
Keywords | Paid leave |
Authors | Nina Stephan and Paul Schreiner |
AbstractAuthor's information |
According to German law, every employee is entitled to paid annual leave. The amount of pay is generally calculated based on the current salary (known as the “principle of loss of pay”) but a reduction of working hours during the year does not lead to a reduction of entitlement to holiday pay for previously acquired holiday entitlements. If the entitlement was already acquired before the reduction of working time (which can happen because in Germany holiday entitlement is acquired at the beginning of the calendar year), pay during leave will be based on the salary agreed between the employer and employee when the holiday entitlement was acquired and thus, based on the ‘old’ salary. |
Editorial |
A Christmas Carol |
Journal | European Employment Law Cases, Issue 4 2018 |
Authors | Zef Even |
Pending cases |
Case C-257/18, Social insuranceM. Güler – v – Raad van bestuur van het Uitvoeringsinstituut werknemersverzekeringen, reference lodged by the Centrale Raad van Beroep (Netherlands) on 13 April 2018 |
Journal | European Employment Law Cases, Issue 4 2018 |
Case Reports |
EELC 2018/46 Limits to a contractual penalty for non-compliance with a non-compete clause (CZ) |
Journal | European Employment Law Cases, Issue 4 2018 |
Keywords | Miscellaneous |
Authors | Anna Diblíková |
AbstractAuthor's information |
The Czech Supreme Court has ruled that the concept of good moral conduct must be taken into account when assessing whether an employee has breached his or her non-compete obligation and thus whether it is fair to demand that the employee pay a contractual penalty for the breach. The Court annulled the penalty. |
Pending cases |
Case C-581/18, Age discriminationYV, reference lodged by the Sąd Najwyższy (Poland) on 17 August 2018 |
Journal | European Employment Law Cases, Issue 4 2018 |
Case Reports |
EELC 2018/40 Equal treatment of leased employees by ‘false’ works agreements (AU) |
Journal | European Employment Law Cases, Issue 4 2018 |
Keywords | Temporary agency work, Part-time work |
Authors | Sarah Lurf |
AbstractAuthor's information |
A ‘false’ works agreement, which reduces the standard weekly working hours for permanent staff, also applies to leased employees. However, the pay of leased employees remains governed by the applicable collective bargaining agreement, rather than by the ‘false’ works agreement. Therefore, leased (part-time) employees benefitted from the reduced working hours by the ‘false’ works agreement, but received full pay based on the collective bargaining agreement. |