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Human Rights Practice Review

Hungary

Journal East European Yearbook on Human Rights, Issue 1 2018
Authors Kriszta Kovács LLM, PhD
Author's information

Kriszta Kovács LLM, PhD
LLM, PhD in Law, associate professor at ELTE University Faculty of Social Sciences, Senior Researcher at WZB Berlin Center for Global Constitutionalism.
Human Rights Practice Review

Latvia

Journal East European Yearbook on Human Rights, Issue 1 2018
Authors Lolita Bērziņa, Artūrs Kučs and Eva Vīksna
Author's information

Lolita Bērziņa
Lolita Bērziņa is Dr.iur.cand. and lecturer at the Faculty of Law of the University of Latvia.

Artūrs Kučs
Artūrs Kučs is Dr.iur. Judge at the Constitutional Court of Latvia and Associate Professor and Chair of the Department of International Law at the Faculty of Law of the University of Latvia.

Eva Vīksna
Eva Vīksna is Legal Research Counsel at the Supreme Court of Latvia.

Martin Brink
Martin Brink, PhD, is attorney at law, arbitrator and deputy judge at the The Hague Court of Appeals and an internationally certified mediator (MfN, IMI, CEDR Global Panel).

    The German Federal Labour Court has held that it was justifiable for the employment of an actor to be limited in time because of the “type of work” involved and the fact that the work was with a film production company, even though the actor was given a number of fixed term employment contracts over around 18 years.


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.

    The general protection against dismissal under Austrian labour law only applies if at least five employees are employed permanently. The special provisions for air carriers under Austrian law only apply to air carriers that have their principal place of business in Austria. Whether foreign businesses and their employees employed outside Austria should be afforded protection against dismissal remains unresolved.


Hans Georg Laimer
Hans Georg Laimer is a Partner at zeiler. partners Rechtsanwaelte GmbH in Vienna, Austria. He represented the defendant in the court procedure.

Lukas Wieser
Lukas Wieser is an Attorney at Law at zeiler.partners Rechtsanwaelte GmbH in Vienna, Austria. He represented the defendant in the court procedure.
Case Reports

2018/13 Discrimination based on perceived disability found unlawful (UK)

Journal European Employment Law Cases, Issue 2 2018
Keywords Disability discrimination, Other forms of discrimination
Authors Sam Minshall
AbstractAuthor's information

    The Employment Appeal Tribunal (‘EAT’) has confirmed that, even if an employee is not actually disabled for the purpose of the relevant statutory test, it is unlawful for an employer to discriminate against that employee because of a perceived disability.


Sam Minshall
Sam Minshall is an associate solicitor at Lewis Silkin LLP.

    A mobility clause must be sufficiently precise, but this condition can still be fulfilled even if the clause tries to cover both current and possible future locations of the company, provided any future locations are still within France and provided any change of location is justified by the needs of the business.


Claire Toumieux
Claire Toumieux is a partner with Allen & Overy LLP in Paris, www.allenovery.com.

Susan Ekrami
Susan Ekrami is a senior associate with Allen & Overy LLP in Paris, www.allenovery.com.

    The Danish Supreme Court has ruled that a medical diagnosis is not required when deciding whether a person suffers from a disability protected under Directive 2000/78.


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

    The Polish national social insurance authority has no power to police ‘social dumping’. Neither is there any legal basis or justification for excluding workers performing work in other EU Member States from the national social insurance system based on an unverifiable assumption that social dumping is taking place.


Marcin Wujczyk PhD.
Marcin Wujczyk, PhD., is a partner with Baran Ksiazek Bigaj Wujczyk in Krakow, www.ksiazeklegal.pl.

    The Spanish Supreme Court has again ruled on the highly controversial question of whether limitations to the liability of a transferee established in a collective bargaining agreement (‘CBA’) in the context of a CBA-led transfer are valid, or whether they contravene the Spanish implementation of the Acquired Rights Directive.


Luis Aguilar
Luis Aguilar is an attorney-at-law at Eversheds Sutherland and an associate professor in Labour Law at IE University.

    The Irish Court of Appeal recently clarified the obligations of employers towards employees with a disability.
    The judgment suggests that an employer is not required to alter the duties of a position held by an employee with a disability in order to accommodate that employee’s return to work if the duties, which the employee is no longer capable of performing, are considered essential to the employee’s position.


Lucy O’Neill
Lucy O’Neill is an attorney at law at Mayson Hayes & Curran.
Case Reports

2018/18 Preliminary questions to ECJ about Brexit implications for UK citizens? (NL)

Journal European Employment Law Cases, Issue 2 2018
Keywords Free movement, Work and residence permit, Other forms of free movement
Authors Jan-Pieter Vos
AbstractAuthor's information

    Recently, the Court of Amsterdam decided to ask preliminary questions to the ECJ about EU citizens’ rights of British nationals, anticipating Brexit. However, two weeks later, it allowed an appeal against this decision. It is therefore unclear if and when these questions will be asked.


Jan-Pieter Vos
Jan-Pieter Vos is a lecturer of Labour Law at Erasmus University Rotterdam.

    The Labour Court of Brussels ordered an employer to pay a protection indemnity to an employee following termination on the basis of reorganisation during her pregnancy because (i) the employee benefited from a specific protection against dismissal and (ii) the employer failed to prove that the dismissal of the employee was based on reasons unrelated to the pregnancy.


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

2018/20 Labour Court sets out employers’ equal treatment obligations following the transfer of a business (FI)

Journal European Employment Law Cases, Issue 2 2018
Keywords Transfer of undertaking, General discrimination, Terms of employment
Authors Janne Nurminen
AbstractAuthor's information

    The Finnish Labour Court recently decided a case about the transfer of a business and the associated obligation to harmonise employees’ salaries. The Court held that the employer had not shown good reasons for continuing to pay different salaries to employees with equivalent responsibilities long after the transfer.


Janne Nurminen
Janne Nurminen is a Senior Associate with Roschier in Helsinki, www.roschier.com.
Article

The Harmonization Potential of the Charter of Fundamental Rights of the European Union

Journal European Journal of Law Reform, Issue 2-3 2018
Keywords application of EU law, Article 51 of the Charter, Charter of Fundamental Rights of the EU, Court of Justice, jurisdiction of the Court of Justice, market freedoms, spontaneous harmonization
Authors Filippo Fontanelli and Amedeo Arena
AbstractAuthor's information

    This article discusses two underrated and connected aspects that determine the applicability of the EU Charter on Fundamental Rights to Member State measures. First, the Charter can be a decisive standard of review for domestic measures only when they are covered by EU law but are not precluded by it. In this respect, the distinction between non-preclusion and non-application of EU law has been overlooked by legal scholarship. Second, because the scope of application of EU law and that of the Charter are identical, the latter suffers from the same uncertainties as the former. This article concludes that the entry into force of the Charter has exposed the blurred contours of the application of EU law, in particular in the area of the market freedoms. As a result, a certain spontaneous harmonization of human rights protection has emerged.


Filippo Fontanelli
Respectively, Senior Lecturer in International Economic Law, University of Edinburgh; and Associate Professor, Università degli Studi di Napoli ‘Federico II’. The work is the outcome of both authors’collaboration. Amedeo Arena drafted sections A to C, Filippo Fontanelli drafted sections D to G.

Amedeo Arena
A previous version of this work appeared in M. Andenas, T. Bekkedal & L. Pantaleo (Eds.), The Reach of Free Movement, Springer, TMC Asser Press, 2017, p. 293-312. This volume (The EU Bill of Rights’ Diagonal Application to Member States. Ed. Csongor István Nagy) was published as part of the research project of the HAS-Szeged Federal Markets ‘Momentum’ Research Group.

    In the process of adjudication and litigation, indigenous peoples are usually facing a very complex and demanding process to prove their rights to their lands and ancestral territories. Courts and tribunals usually impose a very complex and onerous burden of proof on the indigenous plaintiffs to prove their rights over their ancestral territories. To prove their rights indigenous peoples often have to develop map of their territories to prove their economic, cultural, and spiritual connections to their territories. This article reflects on the role played by the mapping of indigenous territories in supporting indigenous peoples’ land claims. It analyses the importance of mapping within the process of litigation, but also its the impact beyond the courtroom.


Jeremie Gilbert PhD
Jeremie Gilbert is professor of Human Rights Law, University of Roehampton.

Ben Begbie-Clench
Ben Begdie-Clench is a consultant working with San communities in southern Africa.

    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.
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.
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