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ECJ Court Watch

ECJ 25 October 2017, case C-106/16 (Polbud), Miscellaneous

Polbud – v – Wykonawstwo sp. z o.o., Polish case

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

    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.

ECJ Court Watch

ECJ 20 December 2017, case C-103/16 (Porras Guisado), Unfair dismissal, Collective redundancies

Jessica Porras Guisado – v – Bankia SA and Others, Spanish case

Journal European Employment Law Cases, Issue 1 2018
Keywords Unfair dismissal, Collective redundancies
Abstract

    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.


Christian K. Clasen
Christian K. Clasen is a partner at Norrbom Vinding, Copenhagen.

    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.


Paul Schreiner
Paul Schreiner is an attorney at law at Luther Rechtsanwaltsgesellschaft mbH.

    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.


Paul Schreiner
Paul Schreiner is an attorney at law at Luther Rechtsanwaltsgesellschaft mbH.

Jana Voigt
Jana Voigt is an attorney at law at Luther Rechtsanwaltsgesellschaft mbH.
ECtHR Court Watch

ECtHR 9 January 2018, application nos. 1874/13 and 8567/13, Fundamental rights, Privacy

Lopez Ribalda – v – Spain, Spanish case

Journal European Employment Law Cases, Issue 1 2018
Keywords Fundamental rights, Privacy
Abstract

    The Spanish courts breached Article 8 of the Convention on Human Rights by accepting covert footage as valid evidence in court.

ECtHR Court Watch

ECtHR 23 January 2018, application no. 60392/08, Unfair dismissal, Other fundamental rights

Seven – v – Turkey, Turkish case

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

    The Turkish Supreme Administrative Court cast doubt on a dismissed police officer’s innocence by failing, in an appeal review, to take proper account of the fact that he had been acquitted of rape, in breach of the presumption of innocence contained in Article 6 §2 of the European Convention on Human Rights.

ECJ Court Watch

ECJ 20 December 2017, case C-442/16 (Gusa), Free movement, Social insurance

Florea Gusa – v – Minister for Social Protection, Ireland, Irish case

Journal European Employment Law Cases, Issue 1 2018
Keywords Free movement, Social insurance
Abstract

    Self-employed workers who have ceased their activity for reasons beyond their control and who are registered as jobseekers, retain their status as self-employed persons for the purposes of Article 7(1)(a) of Directive 2004/38.

ECJ Court Watch

ECJ 7 december 2017, case C-189/16 (Zaniewicz-Dybeck), Free movement, Social insurance

Boguslawa Zaniewicz-Dybeck – v – Pensionsmyndigheten, Swedish case

Journal European Employment Law Cases, Issue 1 2018
Keywords Free movement, Social insurance
Abstract

    A minimum benefit as defined in Article 50 of Regulation No 1408/71 may not be calculated in accordance with Articles 46(2) and 47 of that Regulation, but benefits receive in other Member States may be taken into account in calculating the minimum benefit.

ECJ Court Watch

ECJ 13 September 2017, case C-570/15 (X), Free movement, Social insurance

X – v – Staatssecretaris van Financiën, Dutch case

Journal European Employment Law Cases, Issue 1 2018
Keywords Free movement, Social insurance
Abstract

    A Dutch employee who resides in Belgium and performs only 6.5% of his hours worked in Belgium (and the rest in the Netherlands), cannot be regarded as ‘normally’ pursuing an activity in two or more Member States. The special rule in Article 14(2)(b)(i) of Regulation No 1408/71, stating that a person normally employed in the territory of two or more Member States shall be subject to the legislation of the Member State in whose territory he resides, does not apply in this case.

ECJ Court Watch

ECJ 19 October 2017, case C-531/15 (Otero Ramos), General discrimination, Gender discrimination

Elda Otero Ramos – v – Servicio Galego de Saúde & Instituto Nacional de la Seguridad Social, Spanish case

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

    The provisions on the burden of proof regarding the equal treatment of men and women in employment matters in Directive 2006/54 also apply to claims by breastfeeding workers based on Directive 92/85 (safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding).

ECJ Court Watch

ECJ 14 September 2017, case C-168/16 and C-169/16 (Ryanair), Private international law

Sandra Nogueira and Others – v – Crewlink Ireland Ltd and Miguel José Moreno Osacar – v – Ryanair Designated Activity Company

Journal European Employment Law Cases, Issue 4 2017
Keywords Private international law
Abstract

    When determining the place from which airline cabin crewmembers habitually carry out their work, the concept of ‘home base’ is a significant indicator.

    The highest administrative court in the Netherlands has delivered a razor-sharp ruling on the intra-community service provision set out in Articles 56 and 57 of the Treaty on the Functioning of the European Union). This concerns ‘new’ EU-nationals who are still under transitional measures with regard to access to the labour markets of ‘old’ EU Member States. The judgment was preceded by a request from the Chairman to a State Councillor Advocate General to deliver his opinion on various aspects of punitive administrative law practice in the Netherlands. Both the opinion and the judgment are a welcome clarification and addition (or even correction) on the practice.


Othmar K. Traber
Othmar K. Traber is a partner at Ahlers & Vogel Rechtsanwalte PartG mbB in Bremen, www.ahlers-vogel.com.

    The Polish Supreme Court has recently confirmed that the collective dismissal procedure should also cover cases where the employment relationship is terminated as a result of the termination of conditions of work or pay.


Marcin Wujczyk Ph.D.
Marcin Wujczyk, Ph.D., is an associate professor at the Jagiellonian University and an attorney with Ksiazek & Bigaj Law Firm, www.ksiazeklegal.pl.

    A clause in a collective bargaining agreement stipulating that overtime premiums for part time employees are only payable if their monthly working hours exceed those of a full-time employee is not discriminatory.


Paul Schreiner
Paul Schreiner is a partner with Luther Rechtsanwaltsgesellschaft mbH in Essen, www.luther-lawfirm.com.

    In February 2017, a female worker was served notice of termination of her employment contract for economic reasons (odpoved pogodbe o zaposlitvi iz poslovnih razlogov). The reasons for the termination were: (i) a substantial decrease in orders, (ii) reduced realisation and (iii) reduced demand for particular products. In particular, the company had lost one of its clients in the automotive industry. The worker brought an action claiming that (i) the reason for the termination was not logical (this included challenging the arguments made in the termination letter because the business results in 2012, when the notice was served, were better than in 2011); (ii) the employer continuously requested employees to work overtime (but note that the overtime was within the statutory limits); and (iii) she had been discriminated against and the working conditions were poor in various respects. The first and second instance courts denied her claim and found the termination lawful.


Petra Smolnikar
Petra Smolnikar is the founder and managing partner of PETRA SMOLNIKAR LAW, in Ljubljana, Slovenia: http://petrasmolnikarlaw.eu.

    The Employment Appeal Tribunal (EAT) has adopted a new approach to the burden of proof in discrimination cases. Up to now, the courts have held that the claimant must, in the first instance, prove sufficient facts from which (in the absence of any other explanation) an inference of discrimination can be drawn. Once the claimant has established these facts, the burden of proof shifts to the respondent to show that he or she did not breach the provisions of the Act. The EAT has now said that courts should consider all of the evidence (both the claimant’s and the respondent’s) when making its finding of facts, in order to determine whether or not a prima facie case of discrimination has been made out. It is then open to the respondent to demonstrate that there was no discrimination. This is an important development in how the burden of proof is dealt with in discrimination cases. It clarifies that it is not only the claimant’s evidence which will be scrutinised in determining whether the burden of proof has shifted, but also the respondent’s evidence (or lack thereof).


Hannah Price
Hannah Price is a Legal Director at Lewis Silkin LLP.

    The Supreme Court of Finland has ruled that an employer had legitimate grounds to make 16 consecutive fixed-term employment contracts with an employee who did not hold the degree required by law for permanent employment as a social worker. However, the employer had neglected its obligation to offer work and provide training for the employee and was obliged to pay compensation for unjustified termination of the employment relationship.


Kaj Swanljung

Janne Nurminen
Kaj Swanljung and Janne Nurminen are respectively a Senior Counsel and Senior Associate at Roschier in Helsinki, www.roschier.com.

    The Lithuanian Supreme Court ruled that a trade union acting on a territorial level has no right to represent all the employees in a single enterprise or participate in information and consultation procedures, if (i) the majority of the employees have not specifically accorded this function to the trade union or (ii) the trade union is not able to prove that a structural sub-unit has been established in that enterprise.


Vida Petrylaite
Vida Petrylaite is a partner with CONFIDENCE Law Office, Vilnius, www.confidence.lt.
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