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Case Reports

2016/48 Establishment of the European Work Council (SK)

Journal European Employment Law Cases, Issue 3 2016
Keywords Work Council, establishment of the European Work Council
Authors Gabriel Havrilla and Dominika Šlesárová
AbstractAuthor's information

    Council Directive 94/45/EC (the ‘Directive’) determines the conditions for setting up a European Works Council or other means of providing information to employees in relation to employers that operate in more than one EU Member State. The aim of the Directive is to ensure employees are properly informed about their own employer and the company group operating in the EU, under their right to transnational information. In the case at hand, the courts needed to determine what conditions had to be met to set up a European Work Council and when a European Work Council would be established by operation of law.


Gabriel Havrilla
Gabriel Havrilla is a partner with Legal Counsels s.r.o., www.legalcounsels.sk.

Dominika Šlesárová
Dominika Šlesárová is a junior associate with Legal Counsels s.r.o., www.legalcounsels.sk.
ECJ Court Watch

Case C-200/16. Transfer of undertakings

Securitas – Serviços e Tecnologia de Segurança SA – v – ICTS Portugal – Consultadoria de Aviação Comercial SA and others, reference lodged by the Portuguese Supremo Tribunal de Justiça on 12 April 2016

Journal European Employment Law Cases, Issue 3 2016
Keywords Transfer of undertakings
Case Reports

2016/44 Is there a genuine remedy for the employer’s failure to consult? (HU)

Journal European Employment Law Cases, Issue 3 2016
Keywords Employee representatives/collective bargaining, obligation to consult
Authors Gabriella Ormai and Peter Ban
AbstractAuthor's information

    During negotiations for a collective bargaining agreement, the employer stopped consulting the employee representatives because a sectorial collective bargaining agreement had entered into force that also applied to the employer. After this, the trade union requested an appointment with the employer on a specific date and proposed an agenda for the meeting, including consultation on the impact of the sectorial collective bargaining agreement on the employees. The employer refused to meet on the requested date. The trade union challenged this via the Labour Court. The first and second instance courts turned down the trade union’s claim and confirmed the employer had acted lawfully. The Curia (the Supreme Court) established that the employer had breached its obligation to consult – an obligation deriving from the Labour Code which implemented Directive 2002/14 establishing a general framework for informing and consulting employees – but at the same time it refused to order the employer to proceed with the consultations, leaving the trade union without an effective remedy.


Gabriella Ormai

Peter Ban
Gabriella Ormai is the managing partner of the Budapest office, Peter Ban is a senior counsel of CMS Cameron McKenna LLP, www.cms-cmck.com.
Case Reports

2016/42 Court finds fixed-term employee eligible for contract of indefinite duration (CY)

Journal European Employment Law Cases, Issue 3 2016
Keywords Dismissal, conversion fixed term contracts
Authors Michalis Hadjigiovanni
AbstractAuthor's information

    Where an employee’s working time exceeds the 30 months prescribed by law, a fixed term contract will be converted into an indefinite term contract.


Michalis Hadjigiovanni
Michalis Hadjigiovanni is a lawyer with George Z. Georgiou & Associates LLC in Nicosia, www.gzg.com.cy.

    A company’s unofficial practice of providing an extra amount on top of the statutory severance payable upon retirement is considered an acquired right which binds the new employer in the case of a transfer of the undertaking. This applies whether or not the transferee was aware of it.


Effie Mitsopoulou
Effie Mitsopoulou is a partner with Kyriakides Georgopoulos in Athens, www.kglawfirm.gr.

    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.

Nicholas Puschman
DipEU, L.LB (Hons.), L.LM, Graduate Trainee in the International Law Division, European Space Agency and Executive Secretary of the European Centre for Space Law (ECSL).

Nicholas Puschman
DipEU, L.LB (Hons.), L.LM, Graduate Trainee in the International Law Division, European Space Agency and Executive Secretary of the European Centre for Space Law (ECSL).

Simonetta Di Pippo
Simonetta Di Pippo is the Director of the United Nations Office for Outer Space Affairs.

Elina Morozova
Elina Morozova, Head of International & Legal Service, Intersputnik International Organization of Space Communications, morozova@intersputnik.com.

Yaroslav Vasyanin
Yaroslav Vasyanin, Legal Counsel, International & Legal Service, Intersputnik International Organization of Space Communications, vasyanin@intersputnik.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.

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