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ECJ Court Watch

ECJ 28 February 2018, case C-46/17 (John), Fixed-term work

Hubertus John – v – Freie Hansestadt Bremen, German case

Journal European Employment Law Cases, Issue 1 2018
Keywords Fixed-term work
Abstract

    The Framework Agreement on fixed-term work and the Equal Treatment (Framework) Directive do not forbid a provision that allows parties to postpone the operation of a retirement age clause in employment periods for fixed time, even if this means that they can be extended infinitely.

ECJ Court Watch

Case C-551/16. Free movement, Social insurance

J. Klein Schiphorst – v – Raad van bestuur van het Uitvoeringsinstituut werknemersverzekeringen, reference lodged by the Dutch Centrale Raad van Beroep on 31 October 2017

Journal European Employment Law Cases, Issue 1 2018

    Racist ‘liking’ on Facebook may justify dismissal for serious misconduct, says the Labour Court of Liège in a decision of 24 March 2017. This case is interesting because, to the author’s knowledge, it is the first time that a simple ‘like’ (as opposed to a proper comment) on Facebook is assessed by a Belgian judge with a view to validate a dismissal for serious misconduct. This case also raises serious questions about the limits to the freedom of expression in social media.


Gautier Busschaert
Gautier Busschaert is an attorney at Van Olmen & Wynant in Brussels, www.vow.be.
Case Reports

2018/6 Dismissals anticipating a transfer of undertaking validated (HU)

Journal European Employment Law Cases, Issue 1 2018
Keywords Dismissal/severance payment, Transfer of undertaking
Authors Gabriella Ormai
AbstractAuthor's information

    The Hungarian Supreme Court has held that within the context of the transfer of an undertaking, the transferee can terminate employment relationships immediately after the transfer for operational reasons and can commence preparations to that effect before the transfer.


Gabriella Ormai
Gabriella Ormai is a managing partner with Ormai és Társai CMS Cameron McKenna Nabarro Olswang LLP Ügyvédi Iroda in Budapest, https://cms.law/en/HUN/Office/Budapest.
Case Reports

2018/9 Uber’s work status appeal rejected (UK)

Journal European Employment Law Cases, Issue 1 2018
Keywords Miscellaneous, Employment status
Authors Laetitia Cooke
AbstractAuthor's information

    Following an appeal by Uber against an employment tribunal (ET) finding last year, which was featured in EELC 2017/10, that its drivers are ‘workers’ and not self-employed contractors (reported in EELC 2017-1), the Employment Appeal Tribunal (EAT) has now upheld the ET’s original decision. The EAT rejected Uber’s arguments that it was merely a technology platform, as well as its statement that it did not provide transportation services. This decision is important as it means that Uber drivers are entitled to certain rights under UK law, such as the right to holiday pay, to the national minimum wage (NMW) and protection against detrimental treatment for ‘blowing the whistle’ against malpractice. Uber has approximately 40,000 drivers (and about 3.5 million users of its mobile phone application in London alone) and so this decision has potentially significant financial consequences for the company.


Laetitia Cooke
Laetitia Cooke is an Associate at Lewis Silkin LLP.
ECJ Court Watch

ECJ 20 December 2017, case C-434/15 (Uber Spain), Employment status

Asociación Profesional Élite Taxi – v – Uber Systems Spain SL, Spanish case

Journal European Employment Law Cases, Issue 1 2018
Keywords Employment status
Abstract

    The overall degree of control which the Uber platform exercises over the workforce does not suggest that it acts merely as an intermediary. The services Uber provides fall within the field of transport within the meaning of EU law and not under the freedom to provide services. It is therefore for the Member States to regulate the conditions under which such services are to be provided in conformity with the general rules of the TFEU.

ECJ Court Watch

ECJ 20 December 2017, case C-158/16 (Vega González), Fixed-term work, Other forms of discrimination

Margarita Isabel Vega González – v – Consejería de Hacienda y Sector Público del Gobierno del Principado de Asturias, Spanish case

Journal European Employment Law Cases, Issue 1 2018
Keywords Fixed-term work, Other forms of discrimination
Abstract

    A fixed-term worker elected to a parliamentary role must be able to benefit from the same special leave granted to a permanent civil servant, to enable them to hold a public office.

Case Reports

2018/7 ‘Ryanair’ after ‘Ryanair’: Crew member still left empty-handed? (NL)

Journal European Employment Law Cases, Issue 1 2018
Keywords Private international law, Competency, Applicable law
Authors Amber Zwanenburg
AbstractAuthor's information

    A Dutch first instance court applies the recent ECJ Ryanair ruling (C-168/16 and C-169/16) in another Ryanair private international law dispute. Even though the Dutch court accepted jurisdiction, it applied Irish law to the employees’ unfair termination claim.


Amber Zwanenburg
Amber Zwanenburg is a lecturer in labour law at the Erasmus University, Rotterdam.
ECJ Court Watch

ECJ 18 October 2017, case C-409/16 (Kalliri), Gender discrimination

Ypourgos Esoterikon and Ypourgos Ethnikis paideias kai Thriskevmaton – v – Maria-Eleni Kalliri, Greek case

Journal European Employment Law Cases, Issue 1 2018
Keywords Gender discrimination
Abstract

    The competition notice for enrolment in Greek police schools requires applicants, whichever their gender, to be at least 1.70m in height. This disadvantages a far greater number of women than men and does not appear either appropriate or necessary to achieve the legitimate objective it pursues.

ECJ Court Watch

ECJ 9 November 2017, case C-98/15 (Espadas Recio), Part-time work

María Begoña Espadas Recio – v – ServicioPúblico de Empleo Estatal (SPEE), Spanish case

Journal European Employment Law Cases, Issue 1 2018
Keywords Part-time work
Abstract

    While a provision that treats the unemployment benefits of vertical part-time workers unfavourably compared to full-time workers falls outside the scope of the Framework Agreement on part-time work, such a benefit scheme may still violate the principle of equal treatment of men and women, for example, if it is indirectly discriminatory towards women.

    The Court of Appeal has overruled the recent Employment Appeal Tribunal (EAT) decision in Efobi – v – Royal Mail [2017] IRLR 956 (reported in EELC 2017/41), restoring the previous position that a claimant in a discrimination case has the initial burden of proof – which ‘shifts’ to the respondent to provide an explanation of why its conduct was non-discriminatory if a prima facie case is proven.
    The Court of Appeal disagreed with Mrs Justice Elisabeth Laing’s ruling in Efobi, that section136 of the Equality Act 2010 had made a substantial change to the law when it was introduced, on the basis that it could not be fair that a respondent should have to discharge the burden of proof without the claimant first showing that there is a case to be answered. Lord Singh ruled that it could not have been Parliament’s intention to remove this initial burden of proof when it enacted the Equality Act.


Kayleigh Williams
Kayleigh Williams is a paralegal at Lewis Silkin LLP.
ECtHR Court Watch

ECtHR 27 February 2018, application no. 1085/10, Unfair dismissal, Freedom of expression

Guja – v – The Republic of Moldova (No. 2), Moldavian case

Journal European Employment Law Cases, Issue 1 2018
Keywords Unfair dismissal, Freedom of expression
Abstract

    Dismissal after re-instatement of employment following an ECtHR judgment found an infringement of freedom of speech.

ECtHR Court Watch

ECtHR 23 January 2018, application no. 15374/11, Unfair dismissal, Other fundamental rights

Mr Güç – v – Turkey, Turkish case

Journal European Employment Law Cases, Issue 1 2018
Keywords Unfair dismissal, Other fundamental rights
Abstract

    Dismissal for harassment despite acquittal in criminal proceedings is not incompatible with Article 6(2) of the Convention (presumption of innocence).

Case Reports

2018/8 Insourcing of fitness services by hotel constitutes a transfer of undertaking (IT)

Journal European Employment Law Cases, Issue 1 2018
Keywords Transfer of undertaking, Transfer
Authors Caterina Rucci and Alessandro De Giobbi
AbstractAuthor's information

    A change of service provider may amount to the transfer of an undertaking. While this should not be surprising in itself, the authors discuss recent changes in Italian law in this case report.


Caterina Rucci
Caterina Rucci is an attorney at law at Fieldfisher.

Alessandro De Giobbi
Alessandro De Giobbi is an attorney at law at Fieldfisher.
ECJ Court Watch

ECJ 29 November 2017, case C-214/16 (Conley King), Paid leave

Conley King – v – The Sash Window Workshop Ltd, Richard Dollar, British case

Journal European Employment Law Cases, Issue 1 2018
Keywords Paid leave
Abstract

    The Working Time Directive precludes provisions that establish the right to be paid only after leave has been taken. Further, the right to paid leave (or a corresponding payment at the end of the employment relationship) cannot lapse if the employee has been deterred from taking the leave.

ECJ Court Watch

ECJ 19 October 2017, case C-200/16 (Securitas), Transfer of undertaking, Transfer

Securitas-Serviços e Tecnologia de Segurança SA – v – ICTS Portugal – Consultadoria de Aviação Comercial SA and Others, Portuguese case

Journal European Employment Law Cases, Issue 1 2018
Keywords Transfer of undertaking, Transfer
Abstract

    If a company terminates its contract with one business for the provision of security guard services at its facilities and then makes a new contract for the supply of the same services with another business – but that second business refuses to take on the employees of the first – the situation may be an transfer of an undertaking if the equipment essential to the performance of those services has been taken over by the second business. Further, under the Acquired Rights Directive Member States must ensure that if a business loses a service contract to another operator, this can be treated as a transfer.

Law Review

Access_open 2018/1 EELC’s review of the year 2017

Journal European Employment Law Cases, Issue 1 2018
Authors Ruben Houweling, Catherine Barnard, Zef Even e.a.
Abstract

    This is the first time we have produced a review of employment law cases from the previous year, based on analysis by various of our academic board members. But before looking at their findings, we would first like to make some general remarks.


Ruben Houweling

Catherine Barnard

Zef Even

Amber Zwanenburg

Daiva Petrylaitė

Petr Hůrka

Jean-Philippe Lhernould

Erika Kovács

Jan-Pieter Vos

Andrej Poruban

Luca Ratti

Niklas Bruun

Francesca Maffei
ECJ Court Watch

ECJ 5 July 2017, case C-190/16 (Fries), Age discrimination

Werner Fries – v – Lufthansa CityLine GmbH, German case

Journal European Employment Law Cases, Issue 1 2018
Keywords Age discrimination
Abstract

    The non-discrimination principle and the freedom of occupation, as provided for in the Charter of Fundamental Rights of the European Union, do not prevent the EU from setting an age limit for pilots involved in commercial air transport, provided that this is done in accordance with Article 52(1) of the Charter.

ECJ Court Watch

ECJ 9 November 2017, C-306/16 (Maio), Working time and leave

Conley King – v – The Sash Window Workshop Ltd, Richard Dollar, Portuguese case

Journal European Employment Law Cases, Issue 1 2018
Keywords Working time
Abstract

    The weekly rest period for workers laid down in Article 5 of Directive 2003/88 does not necessarily need to be granted on the day following six consecutive working days.

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