In a case arising from the sudden collapse of a construction company, the Employment Appeal Tribunal has confirmed the limited scope of the ‘special circumstances’ defence for not consulting on collective redundancies. |
Case Reports |
2022/6 Narrow scope of the ‘special circumstances’ defence for not consulting on collective redundancies confirmed (UK) |
Journal | European Employment Law Cases, Issue 1 2022 |
Keywords | Collective Redundancies |
Authors | David Hopper and Kerry Salisbury |
AbstractAuthor's information |
Case Reports |
2022/7 Dismissal for violation of Covid-19 quarantine order (AT) |
Journal | European Employment Law Cases, Issue 1 2022 |
Keywords | Unfair dismissal |
Authors | Andreas Tinhofer and Isabella Göschl |
AbstractAuthor's information |
The Supreme Court has decided that the summary dismissal of an employee for violating a Covid-19 quarantine order by appearing at work is effective and justified. |
Case Reports |
2022/11 Supreme Court judgment that may impact legislation to transpose the EU Whistleblowing Directive (IR) |
Journal | European Employment Law Cases, Issue 1 2022 |
Keywords | Whistleblowing, Health and Safety |
Authors | Sarah O’Mahoney |
AbstractAuthor's information |
On 1 December 2021, just prior to the transposition deadline for Directive (EU) 2019/1937 on the protection of persons who report breaches of Union law (the ‘Whistleblowing Directive’), the Irish Supreme Court delivered a judgment that may have an impact on the Protected Disclosures (Amendment) Bill, the piece of legislation intended to be enacted in order to comply with the Whistleblowing Directive. The judgment noted that, while the Oireachtas (the Irish parliament) had envisaged that most complaints for which whistleblower protection would be sought would concern matters of public interest, the actual definition of ‘protected disclosure’ in the Protected Disclosures Act 2014 (the ‘2014 Act’) extends further than that and can cover complaints in the context of employment which are personal to the reporting person. While Ireland has missed the deadline and has yet to enact the Protected Disclosures (Amendment) Bill, one of the intended amendments has been changed since this judgment was delivered. |
Case Reports |
2022/10 Labour Tribunal of Brussels decides that Deliveroo riders are self-employed workers and not employees (BE) |
Journal | European Employment Law Cases, Issue 1 2022 |
Keywords | Employment Status |
Authors | Gautier Busschaert |
AbstractAuthor's information |
Working as a rider for the Deliveroo platform is a professional activity that can be performed as a self-employed worker, the Labour Tribunal of Brussels has decided, which also ruled out the possibility of Deliveroo riders enjoying the fiscally beneficial status available for workers active on electronic platforms of the collaborative economy (or ‘sharing economy’). |
Article |
Restorative justice training for judges and public prosecutors in the European Union: what is on offer and where are the gaps? |
Journal | The International Journal of Restorative Justice, Issue Online First 2022 |
Keywords | restorative justice, judicial training, judges, public prosecutors |
Authors | Ana Catarina Pereira, Britt De Craen and Ivo Aertsen |
AbstractAuthor's information |
Judges and public prosecutors across Europe continue to be the main source of referral of cases to restorative justice programmes organised in the context of the criminal justice system. As a result, the training of these two groups of legal professionals regarding what restorative justice is and what it can offer to victims, offenders and the community has for many years been identified as a priority for the development of restorative justice in the European Union (EU). However, little information is available about what actually exists in terms of judicial training on restorative justice within the national judicial training institutions responsible for the initial and/or continuous training of judges and/or public prosecutors. Therefore, we developed an online survey on judicial training on restorative justice and invited 38 judicial training institutions operating in the (then) 28 EU Member States to participate in our study. We were able to make relevant observations regarding the reasons for the non-existence of restorative justice training in most of the judicial training institutions studied and identify important elements of the architecture of the restorative justice training offered by the judicial training institution of Czech Republic. |
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 |
Towards a restorative justice approach to white-collar crime and supra-individual victimisation |
Journal | The International Journal of Restorative Justice, Issue Online First 2022 |
Keywords | restorative justice, white-collar crimes, supra-individual victimisation, spokespersons at restorative meetings, eligibility criteria |
Authors | Daniela Gaddi and María José Rodríguez Puerta |
AbstractAuthor's information |
This work examines the feasibility of extending the implementation of restorative justice to the field of white-collar crime for a specific class of victimisation: that which people experience as a group (i.e. supra-individual victimisation). For this purpose, we analyse some key issues and outline a number of criteria for determining who would be able to speak on behalf of supra-individual victims of white-collar crime in restorative meetings. Some initial proposals are offered, based on four types of supra-individual victimisation, which would provide a framework for the selection of spokespersons who could attend restorative meetings in restoratively oriented criminal proceedings. |
Article |
Mediation in Greece: The ‘Formal’ and Various ‘Informal’ Types, Off- and OnlineThe Architecture of Mediation in Greece – Shifting towards a Culture That Values Consensus-Building |
Journal | Corporate Mediation Journal, Issue 2 2021 |
Keywords | mediation, Greece, special forms, mandatory, online, informal types |
Authors | Dimitris Emvalomenos |
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Article |
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Journal | Corporate Mediation Journal, Issue 2 2021 |
Keywords | international commercial mediation, Belt and Road Initiative, Singapore Convention, China, international dispute resolution |
Authors | Henneke Brink |
AbstractAuthor's information |
With unfaltering determination, China continues to expand its Belt and Road Initiative (BRI). This article focuses on the preference that is given to mediation for the resolution of BRI-related disputes. China, Hong Kong and Singapore proclaim that this approach better fits with ‘Asian’ cultural values than adversarial processes like arbitration and litigation. The BRI can be seen as an innovative field lab where mechanisms for international commercial conflict management and resolution are being developed and put to action - and where legitimacy is tested. |
Article |
Preparing Mediators for Text-Based Mediations on ODR Platforms |
Journal | International Journal of Online Dispute Resolution, Issue 2 2021 |
Keywords | online dispute resolution (ODR), mediation, dispute resolution, alternative dispute resolution (ADR), mediation training, text-based systems |
Authors | Joseph van ’t Hooft, Wan Zhang and Sarah Mader |
AbstractAuthor's information |
The COIVD-19 pandemic has drawn an increasing level of attention to the role of online dispute resolution (ODR) in dispute resolution systems. As ODR becomes increasingly prevalent, unique characteristics of conducting text-based mediations via ODR platforms begin to surface, warranting discussion on modifying mediator practises to adapt to ODR platforms. This article shines a light on the advantages and disadvantages of text-based mediations through interviews with court administrators and mediators with text-based mediation experience. Accordingly, this article proposes recommendations on training mediators to use ODR platforms and modifying their practises to achieve the best outcomes in text-based mediations. Focusing on the qualitative data and information gathered from these conducted interviews, this article seeks to offer practical advice about preparing mediators to participate in text-based mediations. |
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 |
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Journal | International Journal of Online Dispute Resolution, Issue 2 2021 |
Keywords | online dispute resolution (ODR), e-commerce, international dispute resolution, international law, United States, China, European Union, Australia, alternative dispute resolution (ADR), online platforms |
Authors | Teresa Ballesteros |
AbstractAuthor's information |
This article will examine Online Dispute Resolution (ODR) from several perspectives to provide a comprehensive understanding of the global efforts to incorporate ODR in the e-commerce scope. Upon examining the nature and growth of both e-commercial activities and ODR, there will be an analysis from an international standpoint, where the article will discuss the relevant bodies and the progression of uniform standards in this regard. This is followed by an analysis of several jurisdictions, namely the United States, China, European Union and Australia. Finally, the essay will provide suggestions andrecommendations for the implementation of ODR. |
Article |
Online Mediation and e-commerce (B2B and B2C) Disputes |
Journal | International Journal of Online Dispute Resolution, Issue 2 2021 |
Keywords | ODR, online Mediation, e-commerce, business-to business (B2B), business-to consumer (B2C) |
Authors | Mariam Skhulukhia |
AbstractAuthor's information |
Nowadays, electronic commerce plays a significant role in our society as internet transactions continue to grow in the business industry. Electronic commerce mainly refers to commercial transactions, such as business-to-business and business-to-consumer. Disputes are inevitable, part of our lives. Simultaneously by developing technology the need for an effective dispute resolution was obvious. Information communication technology and alternative dispute resolution together created online dispute resolution. Businesses and consumers are actively engaged in online dispute resolution. Therefore, the use of the internet makes business or consumer transactions easier. The online environment is much flexible when it comes to electronic commerce. This article focuses on online mediation, one of the most popular forms of online dispute resolution. |
Article |
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Journal | East European Yearbook on Human Rights, Issue 1 2021 |
Keywords | Covid-19, vaccine passport |
Authors | Mart Susi and Tiina Pajuste |
AbstractAuthor's information |
This comparative study looks into the proposed “vaccine passport” initiative from various human rights aspects. It was undertaken by the Global Digital Human Rights Network, an action started under the EU’s Cooperation in Science and Technology programme. The network currently unites more than 80 scholars and practitioners from 40 countries. The findings are based on responses to questions put to the network members by the authors of this study in February 2021. |
Article |
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Journal | East European Yearbook on Human Rights, Issue 1 2021 |
Authors | Martin Fertmann and Matthias C. Kettemann |
AbstractAuthor's information |
Terms-of-service based actions against political and state actors as both key subjects and objects of political opinion formation have become a focal point of the ongoing debates over who should set and enforce the rules for speech on online platforms. |
Article |
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Journal | East European Yearbook on Human Rights, Issue 1 2021 |
Keywords | judicial independence, selection of judges, appointment of judges, rule of law, mutual trust |
Authors | Vygantė Milašiūtė and Skirgailė Žalimienė |
AbstractAuthor's information |
The article examines the procedure for selection and appointment of judges in Lithuania in the light of the European standards of judicial independence. Both the Council of Europe and the European Union (EU) legal materials are relied on. The procedural role of different actors, the criteria for assessment of candidates, the question of judicial review of selection and appointment decisions as well as the problem of delays of judicial appointments are also examined. Even though the Lithuanian system for the selection and appointment of judges has been assessed favourably by European institutions, certain elements of the system are questionable. However, as long as these deficiencies are not systemic and do not raise issues of the rule of law in the sense of EU law, they would not negatively affect the operation of the EU law-based mutual trust instruments with respect to Lithuania. A suggestion is made that paying more attention to non-systemic deficiencies of judicial independence and the rule of law in EU member states could be beneficial for improving the protection of individual rights. |
Article |
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Journal | Erasmus Law Review, Issue 3 2021 |
Keywords | hate crime, victims, victim rights, procedural justice, EU Member States, criminal procedure |
Authors | Suzan van der Aa, Robin Hofmann and Jacques Claessen |
AbstractAuthor's information |
Hate crime victims involved in a criminal procedure experience difficulties that are different from problems encountered by other victims. In trying to meet the specific procedural needs of hate crime victims many EU Member States have introduced protective measures and services in criminal proceedings, but the adopted approaches are widely disparate. By reporting the results of an EU-wide comparative survey into hate crime victims within national criminal procedures the authors aim to: (1) make an inventory of the national (legal) definitions of hate crime and the protection measures available (on paper) for hate crime victims; and (2) critically discuss certain national choices, inter alia by juxtaposing the procedural measures to the procedural needs of hate crime victims to see if there are any lacunae from a victimological perspective. The authors conclude that the Member States should consider expanding their current corpus of protection measures in order to address some of the victims’ most urgent needs. |
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Journal | Erasmus Law Review, Issue 3 2021 |
Keywords | intimate partner violence, stalking, protection orders, empowerment, safety, well-being |
Authors | Irma W.M. Cleven |
AbstractAuthor's information |
This study uses a novel approach to understand the experience and meaning of unsafety and the contribution of penal protection orders to victim empowerment in cases of intimate partner violence (IPV). In ten in-depth interviews, IPV survivors reflect on their relationship with their ex-partner and the previous years in which the order against their ex-partner was issued, including its role within the wider process of coming to terms with IPV victimisation and moving on. Depending on expectations of protection orders (POs) enforcement and deterrence, POs enhance one’s safety-related self-efficacy and result in a sense of empowerment. Its meaning can be understood in terms of one’s power from the ex-partner, power to act, status vis-à-vis the offender and the wider community, care/help of the CJS, and unity/togetherness with the wider community. Several implications for theoretical and empirical research and practice are discussed. |
Article |
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Journal | Erasmus Law Review, Issue 3 2021 |
Keywords | enforcement practice, victim safety, street level bureaucracy, criminal justice chain, penal protection orders |
Authors | Tamar Fischer and Sanne Struijk |
AbstractAuthor's information |
Penal protection orders (PPOs) aim to protect initial victims from repeat victimisation and in a broader sense from any danger for his or her dignity or psychological and sexual integrity and may therefore be important instruments for victim safety. However, knowledge on the actual practice of the PPOs and the successes, dilemmas and challenges involved is scarce. In this article, we describe the legal framework and actual enforcement practice of Dutch PPOs. The theoretical framework leading our explorative analyses regards Lipsky’s notion of ‘street-level bureaucracy’ and the succeeding work of Maynard & Musheno and Tummers on coping strategies and agency narratives of frontline workers. Using interview data from criminal justice professionals, victims and offenders, we describe the conditions of the enforcement practice and answer the question which coping mechanisms and types of agencies the professionals tend to apply in order to meet the legislative aims and to protect victims as effectively as possible. Results show that the five conditions described by Lipsky are clearly present. So far, in almost all situations the process of monitoring violations is reactive and because knowledge on risk indicators for violent escalation is still limited, it is difficult for frontline workers to decide how many and what type of resources should be invested in which cases. This results in a ‘moving away from clients’ strategy. However, within this context in which reactive enforcement is the default, we also found several examples of coping that represent ‘moving towards clients’ strategies. |
Article |
Legislative Effectiveness From a Legislative Drafter’s PerspectiveAnalysing the Transgender Persons (Protection of Rights) Act, 2019 |
Journal | European Journal of Law Reform, Issue 3 2021 |
Keywords | Effectiveness Test, legislative quality, drafting process, Transgender persons (Protection of Rights) Act, 2019 |
Authors | Devika Gulati |
AbstractAuthor's information |
This article discusses the effectiveness of Transgender persons (Protection of Rights) Act, 2019 and tests the legislation against Dr. Maria Mousmouti’s Effectiveness Test. The author first attempts to trace the real purpose of the Act in terms of specific and broad purposes, and the micro, meso and macro goals. Secondly, the author examines the content of the Act in terms of the legislative techniques used, compliance and enforcement mechanism, and legislative communication. Thirdly, the author studies the context of the Act in terms of its coherence, accessibility and the choice of superstructure. |