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Rulings

ECJ 25 February 2021, Case C-129/20 (Caisse pour l’avenir des enfants (Emploi à la naissance)), Maternity and Parental Leave

XI – v – Caisse pour l’avenir des enfants, Luxembourg case

Journal European Employment Law Cases, Issue 1 2021
Keywords Maternity and Parental Leave
Abstract

    While Member States can require that a parent has been uninterruptedly employed during the year prior to the start of the parental leave, they cannot require that s/he was employed during when the child was born or adopted.

Case Law

Access_open 2021/1 EELC’s review of the year 2020

Journal European Employment Law Cases, Issue 1 2021
Authors Ruben Houweling, Daiva Petrylaitė, Marianne Hrdlicka e.a.
Abstract

    Various of our academic board analysed employment law cases from last year. However, first, we start with some general remarks.


Ruben Houweling

Daiva Petrylaitė

Marianne Hrdlicka

Attila Kun

Luca Calcaterra

Francesca Maffei

Jean-Philippe Lhernould

Niklas Bruun

Jan-Pieter Vos

Luca Ratti

Andrej Poruban

Anthony Kerr

Filip Dorssemont

    The Danish Supreme Court recently held that an employer had discharged the reversed burden of proof in a case concerning a physiotherapist who was dismissed shortly after her return from maternity leave.


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

    On 13 December 2019 the European Free Trade Association (EFTA) Court held that a national provision that renders a father’s entitlement to parental benefits during a shared period of leave dependent on the mother’s situation, but not vice versa, fell outside the scope of Directive 2006/54/EC (the Equal Treatment Directive) since it did not concern “employment and working conditions” within the meaning of Article 14(1)(c) of that Directive. The action brought by the EFTA Surveillance Authority (ESA) was thus dismissed. The Court consequently did not consider whether the Norwegian rules amounted to unlawful discrimination under the Directive. Furthermore, no assessment was made as to the potential breach with the general principle of equality of gender under EEA law, as this had not been pleaded by ESA.


Jonas Thorsdalen Wik
Jonas Thorsdalen Wik is an attorneys-at-law at Hjort Law Firm (Oslo, Norway).

Dag Sørlie Lund
Dag Sørlie Lund is an attorneys-at-law at Hjort Law Firm (Oslo, Norway).
Case Reports

2020/18 Prohibition of dismissal of pregnant employee (RO)

Journal European Employment Law Cases, Issue 2 2020
Keywords Gender discrimination
Authors Andreea Suciu and Teodora Mănăilă
AbstractAuthor's information

    Analysing the national legal framework in relation to the protection of pregnant employees and employees who have recently given birth or are breastfeeding, provisions which transposed the regulations of Directive 92/85/EEC and of the conclusions in case C-103/16, Jessica Porras Guisado – v – Bankia S.A. and Others, the Constitutional Court of Romania ascertained that the dismissal prohibition of a pregnant employee is strictly restricted to reasons that have a direct connection with the employee’s pregnancy status. As for other cases where the termination of the employment contract is the result of disciplinary misconduct, unexcused absence from work, non-observance of labour discipline, or termination of employment for economic reasons or collective redundancies, the employer must submit in writing well-reasoned grounds for dismissal.


Andreea Suciu
Andreea Suciu is Managing Partner and attorney-at-law at Suciu | The Employment Law Firm, Bucharest, Romania.

Teodora Mănăilă
Teodora Mănăilă is Managing Partner and attorney-at-law at Suciu | The Employment Law Firm, Bucharest, Romania.
Pending Cases

Case C-129/20, Maternity and Parental Leave

XI – v – Caisse pour l’avenir des enfants, reference lodged by the Cour de cassation du Grand-Duché de Luxembourg (Luxembourg) on 9 March 2020

Journal European Employment Law Cases, Issue 2 2020

    Applying the ECJ’s Maschek judgment, the Zutphen subdistrict court has found that an employee was not entitled to an allowance in lieu of untaken paid annual leave at the end of the employment relationship, as she had already received special leave. Moreover, the obligation to inform the employee concerning the right to (exercise) paid annual leave did not rest upon the employer.


Lisa de Vries
Lisa de Vries is a student at Erasmus School of Law and Editorial Assistant of EELC.

Jan-Pieter Vos
Jan-Pieter Vos is Labour Law teacher and PhD candidate at Erasmus School of Law and editor of EELC.

    The Federal Labour Court of Germany (Bundesarbeitsgericht, ‘BAG’) had to decide on a case in which an employee claimed vacation entitlements for the release phase of a partial retirement scheme. Because the employee was released from his work obligation during the release phase of the partial retirement under the so-called ‘block model’ he was not entitled to statutory leave so that the lawsuit was unsuccessful in the final instance.


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

    The recent spread of the Covid-19 pandemic has shown how economic vulnerability varies considerably across European Member States (MSs), and so does social protection in the European Union (EU). The social and economic consequences of the pandemic have impacted asymmetrically national labour markets and exacerbated existing disparities and contradictions. A measure that most governments have introduced in the immediate aftermath has been that of making financial support available to those self-employed workers who lost fully or in part their income. Most MSs have employed quantitative thresholds to identify those self-employed more in need of public subsidies and have proportioned them according to the pre-pandemic levels of income, on the condition that they have been officially recorded as taxable revenues.
    Despite their heterogeneity, we can reasonably affirm that the self-employed have been one of the most exposed clusters of the labour market to in-work poverty and economic uncertainty, which proved to be particularly problematic in periods of unforeseeable crisis, such as that of 2008 and even more so that of 2020. This article explores the range of EU-level measures designed for the self-employed and questions their potential impact on MSs’ legislation.


Luca Ratti
Luca Ratti is a professor at the University of Luxembourg.

    The Brussels Labour Court of Appeal, in a judgment of 10 September 2019, has ruled that the notion of ‘maternity’ contained in the Belgian Gender Act does not go as far as protecting mothers against discrimination with regards to childcare, since this would confirm a patriarchal role pattern. However, a recent legislative change introducing ‘paternity’ as a protected ground might cast doubt on the relevance of this ruling for the future.


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

2020/1 EELC’s review of the year 2019

Journal European Employment Law Cases, Issue 1 2020
Authors Ruben Houweling, Daiva Petrylaitė, Peter Schöffmann e.a.
Abstract

    Various of our academic board analysed employment law cases from last year. However, first, we start with some general remarks.


Ruben Houweling

Daiva Petrylaitė

Peter Schöffmann

Attila Kun

Francesca Maffei

Jean-Philippe Lhernould

Niklas Bruun

Jan-Pieter Vos

Luca Ratti

Anthony Kerr

Petr Hůrka

Michal Vrajík

    While it is not strictly necessary to actually work in order to acquire leave entitlement under German law, the Federal Labour Court (Bundesarbeitsgericht – BAG) has ruled that during a sabbatical (unpaid special leave) the employee does not gain any entitlement to paid annual leave.


Fabian Huber
Fabian Huber is an attorney-at-law at Luther Rechtsanwaltsgesellschaft mbh

    Failure to reinstate an employee upon her return from parental leave in her initial position or a similar position with equivalent remuneration can constitute indirect gender discrimination.


Claire Toumieux

Susan Ekrami
Claire Toumieux and Susan Ekrami are a partner and a senior associate with Allen & Overy LLP in Paris, www.allenovery.com.

    The Constitutional Court of the Republic of Latvia has ruled that provisions of the Law on Higher Education Institutions stipulating that professors and associate professors are elected to the office for a fixed period of time, i.e. for six years, and that only fixed-term employment contracts are to be concluded with them are not compatible with the Constitution of the Republic of Latvia (Latvijas Republikas Satversme) (the ‘Constitution’), which among other things provides that everyone has the right to freely choose their employment and workplace according to their abilities and qualifications. The restriction of this right in this case cannot be regarded as proportionate since the legislator has failed to implement the requirements of the Fixed-term Work Directive 99/70/EC.


Andis Burkevics
Andis Burkevics is a counsel with SORAINEN.
Case Reports

2019/43 Dismissal after childbirth-related leave (DK)

Journal European Employment Law Cases, Issue 4 2019
Keywords Gender discrimination
Authors Christian K. Clasen
AbstractAuthor's information

    The Danish Western High Court has ruled that the dismissal of an employee shortly after returning from childbirth-related leave did not constitute discrimination within the meaning of the Danish Act on Equal Treatment of Men and Women.


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

ECJ 18 September 2019, case C-366/18 (Ortiz Mesonero), Maternity and parental leave

José Manuel Ortiz Mesonero – v – UTE Luz Madrid Centro, Spanish case

Journal European Employment Law Cases, Issue 4 2019
Keywords Maternity and parental leave
Abstract

    In two appeal cases considered jointly, the Court of Appeal (CA) has ruled that it is not direct or indirect sex discrimination, nor a breach of equal pay rights, to provide enhanced pay for maternity leave and statutory pay only for shared parental leave (SPL).


Richard Lister
Richard Lister is a Managing Practice Development Lawyer at Lewis Silkin LLP.
Case Reports

2019/34 Reduction of annual leave during parental leave is lawful (GE)

Journal European Employment Law Cases, Issue 3 2019
Keywords Maternity and parental leave
Authors Nina Stephan and David Meyer
AbstractAuthor's information

    The Higher Labour Court of Berlin-Brandenburg (Landesarbeitsgericht (LAG)) has held that the pro rata reduction of annual leave depending on the period of parental leave is lawful. In general, statutory holiday entitlement also exists for the period of parental leave. However, the employer has the right to reduce leave pro rata for each full month of parental leave according to Section 17 paragraph 1 sentence 1 of the Federal Parental Allowances and Parental Leave Act (Bundeselterngeld- und Elternzeitgesetz (BEEG)). The proportional reduction is in line with European law.


Nina Stephan
Nina Stephan is an attorney-at-law at Luther Rechtsanwaltsgesellschaft mbH.

David Meyer
David Meyer is an attorney-at-law at Luther Rechtsanwaltsgesellschaft mbH.
Pending Cases

Case C-366/18, Maternity and Parental Leave

José Manuel Ortiz Mesonero – v – Unión Temporal de Empresas Luz Madrid Centro, reference lodged by the Juzgado de lo Social de Madrid (Spain) on 5 June 2018

Journal European Employment Law Cases, Issue 2 2019
Rulings

ECJ 8 May 2019, case C-486/18 (Praxair MRC), Gender Discrimination, Maternity and Parental Leave

RE – v – Praxair MRC SAS, French case

Journal European Employment Law Cases, Issue 2 2019
Keywords Gender Discrimination, Maternity and Parental Leave
Abstract

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