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    The dismissal of an employee for gross misconduct was unfair because the investigating officer failed to share significant new information with the manager conducting the disciplinary hearing who decided to dismiss, the Employment Appeal Tribunal has ruled.


Ludivine Gegaden
Ludivine Gegaden is an Associate at Lewis Silkin LLP.

    The notice of collective redundancies required to be given to an employment agency pursuant to Section 17(1) of the German Protection Against Unfair Dismissal Act (Kündigungsschutzgesetz, ‘KSchG’) can only be effectively submitted if the employer has already decided to terminate the employment contract at the time of its receipt by the employment agency. Notices of termination in collective redundancy proceedings are therefore effective – subject to the fulfilment of any other notice requirements – if the proper notice is received by the competent employment agency before the employee has received the letter of termination.


Marcus Bertz
Marcus Bertz is an attorney-at-law at Luther Rechtsanwaltsgesellschaft mbH.
Landmark Rulings

ECJ 26 March 2020, case C-344/18 (ISS Facility Services), Transfer of undertakings, transfer, employment terms

ISS Facility Services NV – v – Sonia Govaerts and Atalian NV (formerly Euroclean NV), Belgian case

Journal European Employment Law Cases, Issue 2 2020
Keywords Transfer of undertakings, Employment terms, Transfer
Abstract

    In case of a transfer of undertaking involving multiple transferees, the rights and obligations arising from an employment contract may be divided between various transferees, if this is possible. If not (or if it is to the detriment of the employee), the transferees would be regarded as being responsible for any consequent termination under Article 4 of Directive 2001/23, even if this were to be initiated by the worker.

    In a recent Supreme Court decision, it was held by a 4-1 majority that there is no reason, in principle, why the provision of ‘reasonable accommodation’ for an employee with a disability should not involve the redistribution of duties.


Orla O’Leary
Orla O’Leary is an attorney-at-law at Mason Hayes & Curran, Dublin.

    The Belgian Court of Cassation (Supreme Court), in a decision of 20 January 2020, has ruled that the prohibition for an employer to terminate the employment relationship of a worker for reasons related to a complaint for acts of violence and/or moral and/or sexual harassment at work does not, however, preclude the dismissal from being justified by motives inferred from the facts set out in the complaint.


Gautier Busschaert
Gautier Busschaert is an attorney-at-law at Van Olmen & Wynant, Brussels.
Rulings

ECJ 2 April 2020, joined cases C-370/17 and C-37/18 (CRPNPAC), Social Insurance

Caisse de retraite du personnel navigant professionnel de l’aéronautique civile (CRPNPAC) – v – Vueling Airlines SA (C-370/17); Vueling Airlines SA – v – Jean-Luc Poignant (C-37/18), French cases

Journal European Employment Law Cases, Issue 2 2020
Keywords Social Insurance
Abstract

    E101 certificates which were fraudulently obtained can only be disregarded under specified conditions.

Pending Cases

Case C-105/20, Gender Discrimination, Part Time Work

UF – v – Union Nationale des Mutualités Libres (Partenamut) (UNMLibres), reference lodged by the Tribunal du travail de Nivelles (Belgium) on 27 February 2020

Journal European Employment Law Cases, Issue 2 2020
Keywords Gender Discrimination, Part Time Work
Landmark Rulings

ECJ 22 April 2020, case C-692/19 (Yodel Delivery Network), Working Time, Employment Status

B – v – Yodel Delivery Network Ltd, UK case

Journal European Employment Law Cases, Issue 2 2020
Keywords Working Time, Employment Status
Abstract

    Directive 2003/88/EC precludes a self-employed independent contractor from being classified as a ‘worker’ under the Directive, if they are afforded discretion on the use of subcontractors, acceptance of tasks, providing services to third parties and fixing their own hours of work, provided that the independence does not appear to be fictitious and no relationship of subordination between them and their putative employer can be established.

    The Federal Labour Court of Germany (Bundesarbeitsgericht, ‘BAG’) has decided that a social plan that distinguished between employees who were born in 1960 or later and employees who were born before 1960 for the calculation of severance payment did not constitute unjustified age discrimination. However, a regulation in a social plan which referred to the “earliest possible” entitlement to a statutory pension when calculating the severance payment constituted unjustified indirect discrimination against disabled persons.


Iness Gutt
Ines Gutt is an attorney-at-law at Luther Rechtsanwaltsgesellschaft mbH.
Pending Cases

Case C-194/20, Work and Residence Permit

BY and others – v – City of Duisburg, reference lodged by the Verwaltungsgericht Düsseldorf (Germany) on 7 May 2020

Journal European Employment Law Cases, Issue 2 2020
Keywords Work and Residence Permit
Rulings

ECJ 4 June 2020, case C-828/18 (Trendsetteuse), Miscellaneous

Trendsetteuse SARL – v – DCA SARL, French case

Journal European Employment Law Cases, Issue 2 2020
Keywords Miscellaneous
Abstract

    A person does not necessarily need to have the power to change prices of goods which he sells as an agent for his principal, to be classified as commercial agent within the meaning of Article 1(2) of Directive 86/653/EEC.

Pending Cases

Case C-71/20, Work and residence permit

Anklagemyndigheden – v – VAS Shipping ApS, reference lodged by the Østre Landsret (Denmark) on 12 February 2020

Journal European Employment Law Cases, Issue 2 2020
Keywords Work and residence permit
Rulings

ECJ 25 June 2020, case C-570/18 P (HF – v – Parliament), Health and Safety

HF- v – European Parliament, EU Case

Journal European Employment Law Cases, Issue 2 2020
Keywords Health and Safety
Abstract

    Within the context of a claim of psychological harassment, based on Article 41 of the Charter of Fundamental Rights of the European Union, the EP’s Director-General for Personnel should have provided claimant at the least with a summary of the records of witness hearings drafted by the Advisory Committee. The annulment of the decision at issue constitutes appropriate compensation for any non-material damage which the appellant may have suffered in the present case.

Case Reports

2020/22 Works council’s right to inspect remuneration lists (GE)

Journal European Employment Law Cases, Issue 2 2020
Keywords Information and Consultation, Privacy
Authors Robert Pacholski
AbstractAuthor's information

    The Federal Labour Court (Bundesarbeitsgericht, “BAG”) has held that a works council must be provided with the documents necessary for carrying out its duties at any time on request. A works committee or another committee of the works council formed in accordance with the provisions of the Works Constitution Act (Betriebsverfassungsgesetz, “BetrVG”) is entitled to inspect the lists of gross wages. This right to inspect is not limited to anonymized gross pay lists. Data protection considerations do not dictate that the right is limited to anonymized gross payrolls. The processing of personal data associated with the right of inspection is permitted under the European General Data Protection Regulation (“GDPR”) and the German Federal Data Protection Act (Bundesdatenschutzgesetz, “BDSG”).


Robert Pacholski
Robert Pacholski is an attorney-at-law at Luther Rechtsanwaltsgesellschaft mbH.

    A limitation of taking into account relevant work experience gained in a Member State other than the home Member State for the purpose of determining the level of remuneration is contrary to Article 45 TFEU.

Rulings

ECJ 30 April 2020, case C-211/19 (UO – v – Készenléti Rendőrség), Working time

UO – v – Készenléti Rendőrség, Hungarian case

Journal European Employment Law Cases, Issue 2 2020
Keywords Working Time
Abstract

    The referring court must verify whether Article 2(1) and (2) of Directive 2003/88/EC apply to members of the law enforcement agencies who guard the external border of a Member State in the event of an influx of third-party nationals at those borders.

Rulings

ECJ 14 May 2020, case C-17/19 (Bouygues travaux publics and Others), Social Insurance

Bouygues travaux publics, Elco construct Bucarest, Welbond armatures – criminal proceedings, French case

Journal European Employment Law Cases, Issue 2 2020
Keywords Social Insurance
Abstract

    In case C-17/19 (Bouygues travaux publics and Others), the ECJ found that an E-101 Certificate, issued by the competent institution of a Member State, to workers employed in the territory of another Member State, and an A-1 Certificate, issued by that institution to such workers, are binding on the courts or tribunals of the latter Member State solely in the area of social security.

Pending Cases

Case C-942/19, Fixed-term Work

Servicio Aragonés de la Salud – v – LB, reference lodged by the Tribunal Superior de Justicia de Aragón (Spain) on 31 December 2019

Journal European Employment Law Cases, Issue 2 2020
Keywords Fixed-term Work
Article

The International Law Commission’s Draft Articles on the Prevention and Punishment of Crimes Against Humanity

Incitement/Conspiracy as Missing Modes of Liability

Journal African Journal of International Criminal Justice, Issue 2 2020
Keywords modes of liability, International Law Commission, crimes against humanity, incitement, conspiracy
Authors Joseph Rikhof
AbstractAuthor's information

    The International Law Commission’s Draft Articles on the Prevention and Punishment of Crimes Against Humanity does not include the inchoate crimes of conspiracy or incitement. However, this choice has generated a great deal of academic commentary. This article critically assesses the choice of the drafters to exclude conspiracy and incitement liability, arguing that their decision was flawed. It examines the comments made by academics, as well as participants in the work of the Commission on this draft convention. Additionally, it scrutinizes the methodology employed by the Commission in reaching this conclusion. Finally, it presents a conceptual analysis of the desirability for the inclusion of these two inchoate crimes, arguing that their inclusion would assist in meeting the policy of preventing crimes against humanity.


Joseph Rikhof
Adjunct Professor, University of Ottawa.
Article

A Civil Society Perspective on the ILC Draft Convention on Crimes Against Humanity

Journal African Journal of International Criminal Justice, Issue 2 2020
Keywords crimes against humanity, impunity, aut dedere aut judicare, amnesties, reservations
Authors Hugo Relva
AbstractAuthor's information

    In a relatively short period of time, the International Law Commission has accomplished the impressive task of drafting and adopting the text of the Draft Articles on Prevention and Punishment of Crimes against Humanity. The Draft Articles circulated to states are promising. However, a number of substantive amendments appear to be necessary if the Draft Convention is to become a powerful tool “to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes”, as stated in the Preamble. Moreover, in order to avoid the rapid ossification of the new potential treaty, it is advisable for the articles to reflect the most significant developments in international law, and also allow for future progressive developments in the law, instead of reflecting a lowest common denominator acceptable to all states. This article suggests some revisions to existing provisions, new provisions which may make the text much stronger and finally identifies some important omissions which should be fixed by states at the time of adopting the Draft Convention.


Hugo Relva
Legal adviser, Amnesty International.
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