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.

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.

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.

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.

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.

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

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

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.

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.

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.

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.

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.

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.

Member States may not impose mandatory liquidation on companies that wish to transfer their registered office to another Member State. A restriction on freedom of establishment may be justified by overriding reasons in the public interest, such as the protection of the interests of creditors, minority shareholders and employees, but a general mandatory liquidation goes beyond what is necessary to achieve the objective of protecting these interests.

Directive 92/85 does not preclude national legislation that allows an employer to dismiss a pregnant worker in the context of a collective redundancy.

The Danish Supreme Court has ruled that the Danish authorities may have incurred liability by failing to act sufficiently quickly to amend the Danish Holiday Act to align it with EU law.

The German federal court for labour law matters, the Bundesarbeitsgericht (the ‘BAG’), has held that evidence cannot be used in a dismissal lawsuit if the employer has obtained it from long-term surveillance using keylogger-software. Employers must not keep their employees under constant surveillance and must therefore expect their legal position to be weak if they try to dismiss an employee based on findings from such monitoring. The court ruling preceded the ECtHR Barbulescu ruling of 5 September 2017 (featured in EELC 2017/4) in a similar case.

An acquired mother tongue is – at least indirectly – connected to a person’s origin and therefore also linked to ethnic origin. Claims based on the German General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz, the ‘AGG’) must be brought in writing within two months after knowledge of a possible discrimination. Time only starts to run for claims after the employer has provided an unsuccessful job applicant with a clear and definite statement that he or she has been rejected. The limitation period under the AGG will not be triggered by lapse of time only.