Various of our academic board analysed employment law cases from last year. |
Search result: 252 articles
Case Law |
2022/1 EELC’s review of the year 2021 |
Journal | European Employment Law Cases, Issue 1 2022 |
Authors | Niklas Bruun, Filip Dorssemont, Zef Even e.a. |
Abstract |
Case Reports |
2022/8 Port Labour Act not in conflict with the Belgian Constitution (BE) |
Journal | European Employment Law Cases, Issue 1 2022 |
Keywords | Free Movement, Work and Residence Permit |
Authors | Heleen Franco and Julien Hick |
AbstractAuthor's information |
In its judgment of 25 November 2021, the Belgian Constitutional Court has upheld the obligation to call on recognised dock workers for the activity consisting of preparing trailers on a dock for shipment with a vehicle specifically intended for that purpose (known as a ‘tugmaster tractor’). The obligation to rely solely on recognised dock workers for the performance of port work is justified, among other things, by the need to improve safety in port areas and to prevent accidents at work. The identical treatment of, on the one hand, the loading and unloading of ships in the strict sense and, on the other hand, the activity of preparing trailers on a dock for shipment with a tugmaster tractor, does not breach the principle of equality and non-discrimination. Therefore, equal treatment of both types of port labour, with regard to the obligation to call on recognised dock workers, is reasonably justified. |
Article |
Diversion and restorative justice in the context of juvenile justice reforms in Indonesia, Thailand, the Philippines and Vietnam |
Journal | The International Journal of Restorative Justice, Issue Online First 2022 |
Keywords | children’s rights, juvenile justice, restorative justice, diversion, implementation challenges, Thailand, Vietnam, Indonesia, the Philippines |
Authors | Le Thu Dao, Le Huynh Tan Duy, Ukrit Sornprohm e.a. |
AbstractAuthor's information |
Diversion is an important vehicle for delivering an alternative model of youth justice, one that is, hopefully, grounded in principles of children’s rights and restorative justice. Several Asia-Pacific countries, often with international assistance, have sought to develop alternative processes and programmes to which children in conflict with the law can be diverted to. In some instances, these have included restorative justice programmes. This article provides an overview of the implementation of a restorative justice approach, as a youth justice diversion measure, in four South-East Asian countries: Indonesia, Thailand, the Philippines and Vietnam. It describes juvenile justice reforms in these countries, particularly as they relate to the implementation of diversion and restorative justice and reflects on the factors that may have affected the success of these reforms. Every one of these countries has achieved a measure of success in implementing diversion and restorative justice, although restorative justice has occupied a different place in these reforms. The article offers a general overview of key challenges and notable successes encountered during that process, as well as an opportunity to consider the role of tradition, culture and public expectations in the implementation of restorative justice principles in the context of juvenile justice. |
Article |
The Use of Technology (and Other Measures) to Increase Court CapacityA View from Australia |
Journal | International Journal of Online Dispute Resolution, Issue 2 2021 |
Keywords | court capacity, COVID-19, Australia, online dispute resolution, open justice, procedural fairness, access to justice, online courts, justice technology, judicial function |
Authors | Felicity Bell, Michael Legg, Joe McIntyre e.a. |
AbstractAuthor's information |
The COVID-19 pandemic has forced courts around the world to embrace technology and other innovative measures in order to continue functioning. This article explores how Australian courts have approached this challenge. We show how adaptations in response to the pandemic have sometimes been in tension with principles of open justice, procedural fairness and access to justice, and consider how courts have attempted to resolve that tension. |
Article |
Legal Tradition and Human RightsA Quantitative Comparative Analysis of Developing Countries |
Journal | European Journal of Law Reform, Issue 3 2021 |
Keywords | comparative law, comparative constitutional analysis, human rights, legal traditions, quantitative constitutional analysis, economic rights, social and family rights, civil and political rights |
Authors | Dhanraj R. Singh |
AbstractAuthor's information |
This analysis examines the relationship between legal tradition and constitutional human rights. It experiments with a quantitative comparative methodology to compare economic rights, social and family rights, and civil and political rights between countries with common law, civil law and mixed law legal traditions. The results show that developing countries with a civil law legal tradition provide more constitutional human rights than their counterparts with a common law legal tradition. Although preliminary and imperfect, the results challenge the notion of superiority of the common law legal tradition and human rights. The quantitative comparative framework used offers a new methodological frontier for comparative constitutional law researchers to examine relationships between legal traditions. |
Public Health Emergency: National, European and International Law Responses |
European State Aid Rules in Times of PandemicDistorting Competition Between European Airlines? |
Journal | Hungarian Yearbook of International Law and European Law, Issue 1 2021 |
Keywords | state aid, air transport, airlines, COVID-19 pandemic, Ryanair |
Authors | Mónika Papp |
AbstractAuthor's information |
The outbreak of the COVID-19 pandemic had an immediate and profound impact on mobility and, more specifically, on air passenger transport: airlines were quickly stranded, and the Member States granted aid to air carriers subject to specific eligibility criteria. The Commission reacted swiftly to challenges posed by the COVID-19 pandemic and adopted its Temporary Framework under which vast amounts could be disbursed to market operators. The most controversial eligibility condition set by the Member States is the holding of a national license. This article’s research questions are, first, to explore the conditions under which Member States can grant large amounts of state aid to airlines, and second, to assess whether the requirement to hold a national license is compatible with EU law. By addressing these issues, this article seeks to improve our understanding of EU law’s capacity to tackle distortions of competition. |
Public Health Emergency: National, European and International Law Responses |
Support for FamiliesA Way to Tackle COVID-19 and Its Implications in Hungary |
Journal | Hungarian Yearbook of International Law and European Law, Issue 1 2021 |
Keywords | family, children, vulnerable groups, social protection, housing benefits, labor market |
Authors | Éva Gellérné Lukács |
AbstractAuthor's information |
COVID-19 poses a huge challenge for families and children; their exposure to economic, social and mental hardship is considerable and is confirmed by several studies. The pandemic pushes governments to allocate resources to the economy, but it is equally important to invest in the future by supporting families and children. The article outlines general tendencies in the EU and reflects on Hungarian measures in this field. During the first, second and third waves of COVID-19, a wide range of measures were introduced in Hungary. By extending the eligibility periods of family benefits for families with small children (both social insurance contribution-based and universal benefits) approximately 40,000 families (households) were covered. During the first and second COVID-19 waves, not only did the government extend benefit eligibility, but it also announced several new or renewed measures related to cash benefits and housing for families with at least one economically active parent. During the third wave eligibility periods of family benefits have again been extended. On the other hand, the unemployment benefit system remained intact, labor market pitfalls were addressed by providing wage subsidies. |
Article |
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Journal | Erasmus Law Review, Issue 2 2021 |
Keywords | Habeas corpus, common law, detainee, consitution, liberty |
Authors | Chuks Okpaluba and Anthony Nwafor |
AbstractAuthor's information |
Long before the coming of the Bill of Rights in written Constitutions, the common law has had the greatest regard for the personal liberty of the individual. In order to safeguard that liberty, the remedy of habeas corpus was always available to persons deprived of their liberty unlawfully. This ancient writ has been incorporated into the modern Constitution as a fundamental right and enforceable as other rights protected by virtue of their entrenchment in those Constitutions. This article aims to bring together the various understanding of habeas corpus at common law and the principles governing the writ in common law jurisdictions. The discussion is approached through a twelve-point construct thus providing a brief conspectus of the subject matter, such that one could have a better understanding of the subject as applied in most common law jurisdictions. |
Case Reports |
2021/35 Supreme Court rules on constitutionality of Workplace Relations Commission (IR) |
Journal | European Employment Law Cases, Issue 3 2021 |
Keywords | Miscellaneous |
Authors | Laura Ryan |
AbstractAuthor's information |
By a majority of 4-3, the Supreme Court of Ireland has held that the Workplace Relations Commission’s power to adjudicate disputes between employers and employees was not unconstitutional. However, the majority of the Supreme Court did find that certain aspects of the Commission’s procedures were unconstitutional, namely the blanket ban on public hearings and the lack of capacity for taking evidence on oath. The Workplace Relations Act 2015 and the Workplace Relations Commission procedures have consequently been amended to address these issues. This case report is a follow-up on EELC 2020/34. |
Case Reports |
2021/33 Does the concept of personnel supply in the public sector violate the Temporary Agency Work Directive? (GE) |
Journal | European Employment Law Cases, Issue 3 2021 |
Keywords | Temporary Agency Work |
Authors | Othmar K Traber |
AbstractAuthor's information |
In a decision of 16 June 2021 (6 AZR 390/20 (A)), the German Federal Labour Court (Bundesarbeitsgericht, ‘BAG’) referred a question to the ECJ for a preliminary ruling that has been a controversial issue in Germany for some time. The question is whether the possibility of a permanent supply of temporary workers, which is referred to as ‘personnel supply’ (Personalgestellung) in the context of the collective agreement for the public sector, and the exemption from the scope of the German Temporary Employment Act (Arbeitnehmerüberlassungsgesetz, ‘AÜG’) pursuant to Section 1(3) No. 2b AÜG, which allows this provision in the collective agreement, violates the provisions of Directive 2008/104/EC on temporary agency work (the ‘Temporary Agency Work Directive’). Depending on the outcome of the ECJ’s decision, this could have a significant impact on staff leasing often practised in companies operating in the public sector. |
Article |
Performing restorative justice: facilitator experience of delivery of the Sycamore Tree Programme in a forensic mental health unit |
Journal | The International Journal of Restorative Justice, Issue 3 2021 |
Keywords | restorative justice, sycamore tree programme, ethnography, forensic mental health, self-presentation |
Authors | Joel Harvey and Gerard Drennan |
AbstractAuthor's information |
Restorative justice has increasingly been used across the criminal justice system. However, there is limited evidence of its use with service users within forensic mental health settings. This study conducted a focused ethnography in a medium secure unit in the UK to explore the implementation of the Sycamore Tree Programme, a specific restorative justice programme that the Prison Fellowship (PF) facilitates in prisons. This article examines the experience of PF volunteers and National Health Service (NHS) staff who came together to run the programme with the first cohort of eight service users (‘learners’). Focus groups were carried out before and after training with eight facilitators, and six interviews with facilitators were completed after the programme ended. Furthermore, detailed observations were carried over the six-week programme. It was found that the encounter was highly experiential for staff and that the group process generated significant emotion for both the learners and facilitators. A pre-requisite for containing the group’s and the facilitators’ emotions was staff taking a relational and collaborative approach to their work. The findings of this study are discussed within the theoretical framework of ‘the presentation of self in everyday life’ (Goffman, 1959), looking through the lens of the performative self in social relations. |
Rulings |
ECJ 24 June 2021, case C-550/19 (Obras y Servicios Públicos en Acciona Agua), Fixed-Term Work, Transfer of Undertakings, Employment TermsEV – v – Obras y Servicios Públicos SA and Acciona Agua SA, Spanish case |
Journal | European Employment Law Cases, Issue 2 2021 |
Keywords | Fixed-term Work, Transfer of Undertakings, Employment Terms |
Abstract |
Spanish ‘fijos de obra’ employment contracts could be in breach of the Framework Agreement on Fixed-Term Work. Following a transfer, only the rights and obligations arising from the last contract transfer, provided that this is not to the detriment of the employee. Both are for the referring court to verify. |
Case Reports |
2021/19 Employees’ contracts can be split so they transfer to multiple employers on a TUPE service provision change (UK) |
Journal | European Employment Law Cases, Issue 2 2021 |
Keywords | Transfer of Undertakings, Employees who Transfer/Refuse to Transfer |
Authors | Amy Cooper |
AbstractAuthor's information |
In the case of a ‘service provision change’ under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE), where a service is outsourced or re-tendered, the Employment Appeal Tribunal (EAT) has ruled that an employee’s contract can be split so they go from working full-time for one employer to working part-time for two or more employers. |
Article |
Democratic Scrutiny of COVID-19 LawsAre Parliamentary Committees Up to the Job? |
Journal | European Journal of Law Reform, Issue 2 2021 |
Keywords | parliament, scrutiny, committees, COVID-19, rights, legislation, Australia, New Zealand, United Kingdom |
Authors | Sarah Moulds |
AbstractAuthor's information |
In response to the complex and potentially devastating threat posed by COVID-19, parliaments around the world have transferred unprecedented powers to executive governments and their agencies (Edgar, ‘Law-making in a Crisis’, 2020), often with the full support of the communities they represent. These laws were passed within days, sometimes hours, with limited safeguards and a heavy reliance on sunsetting provisions, some of which are dependent on the pandemic being officially called to an end. While parliaments themselves have suspended or reduced sitting days (Twomey, ‘A Virtual Australian Parliament is Possible’, 2020), parliamentary committees have emerged as the forum of choice when it comes to providing some form of parliamentary oversight of executive action. |
Case Law |
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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. |
Case Reports |
2021/8 High Court rules that ‘workers’ should be protected from health and safety detriment (UK) |
Journal | European Employment Law Cases, Issue 1 2021 |
Keywords | Health & Safety, Employment Status |
Authors | Shalina Crossley |
AbstractAuthor's information |
The UK failed properly to implement EU health and safety law by restricting protection from detriment on health and safety grounds to ‘employees’, the High Court (HC) ruled in a recent case. Such protection should be extended to the broader category of ‘workers’. Importantly, this ruling potentially increases employers’ exposure to Covid-19-related health and safety claims. |
Case Reports |
2020/49 Employing the former employees of a former service provider represents transfer of undertakings (RO) |
Journal | European Employment Law Cases, Issue 4 2020 |
Keywords | Transfer of Undertakings |
Authors | Andreea Suciu and Teodora Manaila |
AbstractAuthor's information |
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Case Reports |
2020/50 Transfer-related contractual changes void even if beneficial for employees (UK) |
Journal | European Employment Law Cases, Issue 4 2020 |
Keywords | Transfer of Undertakings, Employment Terms |
Authors | Lisa Dafydd |
AbstractAuthor's information |
The Employment Appeal Tribunal (EAT) has ruled that the provision under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) which renders changes to employees’ terms and conditions void if they are made because of the transfer applies to changes that are advantageous as well as detrimental to employees. On the facts of the case, this meant that owner-directors who had made significant improvements to their own employment terms before a TUPE transfer could not enforce these against the transferee employer. |
Editorial |
One size fits all? |
Journal | European Employment Law Cases, Issue 4 2020 |
Article |
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Journal | Erasmus Law Review, Issue 4 2020 |
Keywords | wrongful convictions, right to claim innocence, reopening of criminal proceedings, miscarriage of justice, revision of final judgment |
Authors | Wojciech Jasiński Ph.D., habilitation and Karolina Kremens Ph.D. |
AbstractAuthor's information |
Wrongful convictions and miscarriages of justice, their reasons and effects, only rarely become the subject of academic debate in Poland. This article aims at filling this gap and providing a discussion on the current challenges of mechanisms available in Polish law focused on the verification of final judgments based on innocence claims. While there are two procedures designed to move such judgment: cassation and the reopening of criminal proceedings, only the latter aims at the verification of new facts and evidence, and this work remains focused exactly on that issue. The article begins with a case study of the famous Komenda case, which resulted in a successful innocence claim, serving as a good, though rare, example of reopening a case and acquitting the convict immediately and allows for discussing the reasons that commonly stand behind wrongful convictions in Poland. Furthermore, the article examines the innocence claim grounds as regulated in the Polish criminal procedure and their interpretation under the current case law. It also presents the procedure concerning the revision of the case. The work additionally provides the analysis of the use of innocence claim in practice, feeding on the statistical data and explaining tendencies in application for revision of a case. It also presents the efforts of the Polish Ombudsman and NGOs to raise public awareness in that field. The final conclusions address the main challenges that the Polish system faces concerning innocence claims and indicates the direction in which the system should go. |