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    In its decision rendered on 28 February 2019, the Luxembourg Court of Appeal (Cour d’appel de Luxembourg) examined under which circumstances on-call duty performed at the workplace qualifies as actual working time.
    The issue raised was whether the time spent at night by an employee (i.e. the presence of an employee at the workplace) performing the work of a live-in carer was to be considered as ‘actual working time’.
    The Court expressly referred to EU case law and decided that the concept of actual working time is defined by two criteria, namely (i) whether the employee during such a period must be at the employer’s disposal, and (ii) the interference with the employee’s freedom to choose their activities.
    In view of the working hours provided for in the employment contract and in the absence of evidence proving that the employee would not have been at the employer’s home during her working hours, the Court found that the employee stayed at the employer’s home at night and at the employer’s request. It was irrelevant in this respect whether it was for convenience or not. It was further established that the employee could not leave during the night and return to her home and go about her personal business, so that the hours she worked at night were to be considered as actual working time.
    Given that the employee’s objections regarding her salary were justified (as the conditions of her remuneration violated statutory provisions), the Court decided that the dismissal was unfair.


Michel Molitor
Michel Molitor is the managing partner of MOLITOR Avocats à la Cour SARL in Luxembourg, www.molitorlegal.lu.

    The Supreme Court (SC) has unanimously decided that drivers engaged by Uber are workers rather than independent contractors. It also decided that drivers are working when they are signed in to the Uber app and ready to work.


Colin Leckey
Colin Leckey is a partner at Lewis Silkin LLP.

    On 22 May 2020, fifty-two members of the Hungarian parliament petitioned the Constitutional Court which was requested to establish the unconstitutionality of Section 6(4) of Government Decree no. 47/2020 (III. 18), its conflict with an international treaty and to annul it with retroactive effect to the date of its entry into force. According to Section 6(4) of the Decree “in a separate agreement, the employee and the employer may depart from the provisions of the Labour Code” (i.e. ‘absolute dispositivity’). The petition, among other things, alleged the violation of equal treatment and the right to rest and leisure. The Constitutional Court rejected the motion to establish the unconstitutionality of Section 6(4) and its annulment, since it was repealed on 18 June 2020. The Constitutional Court may, as a general rule, examine the unconstitutionality of the legislation in force, however it was no longer possible to examine the challenged piece of legislation in the framework of a posterior abstract norm control.


Kristof Toth
Kristof Toth is PhD student at the Karoli Gaspar University in Hungary.

    On 16 December 2020, the Supreme Court of Lithuania (Cassation Court) delivered a ruling in a case where an employee claimed that the employer, JSC ‘Lithuanian Railways’, did not apply the regulations of the company’s employer-level collective agreement and did not pay a special bonus – an anniversary benefit (i.e. a benefit paid to employees on reaching a certain age) – because the employee was not a member of the trade union which had signed the collective agreement. According to the employee, she was discriminated against because of her membership of another trade union, i.e membership of the ‘wrong’ trade union.
    The Supreme Court held that combatting discrimination under certain grounds falls within the competence and scope of EU law, but that discrimination on the grounds of trade union membership is not distinguished as a form of discrimination. Also, the Court ruled that in this case (contrary to what the employee claimed in her cassation appeal) Article 157 of the Treaty on the Functioning of the European Union (TFEU) is not applicable because it regulates the prohibition of discrimination on other (sex) grounds. Moreover, the Court found that there was no legal basis for relying on the relevant case law of the ECJ which provides clarification on other forms of discrimination, but not on discrimination based on trade union membership.


Vida Petrylaitė
Vida Petrylaitė is an associate professor at Vilnius university.

    An adjudication officer of the Irish Workplace Relations Commission has ruled that an upper age limit for entrance to An Garda Síochána (the national police force) was discriminatory on the grounds of age.


Orla O’Leary
Orla O’Learny is a Senior Associate at Mason, Hayes & Curran.

    The Belgian Court of Cassation (Supreme Court), in a decision of 20 January 2020, has ruled that the prohibition for an employer to terminate the employment relationship of a worker for reasons related to a complaint for acts of violence and/or moral and/or sexual harassment at work does not, however, preclude the dismissal from being justified by motives inferred from the facts set out in the complaint.


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

    The Federal Labour Court of Germany (Bundesarbeitsgericht, ‘BAG’) had to decide on a case in which an employee argued that his contract was not terminated by a provision that restricted the mutual duties to a certain time period for the yearly season within his contract and that the employer had to employ him during the off season. However, his lawsuit was unsuccessful as the Court found that, even though he did have an indefinite contract, the employer was not obliged to employ and pay him during the off season due to the valid provision of fixed-term employment for the time from April to October during the time of the season.


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

2020/34 Challenge to validity of Workplace Relations Act 2015 unsuccessful (IR)

Journal European Employment Law Cases, Issue 3 2020
Keywords Unfair Dismissal, Fair Trial, Miscellaneous
Authors Orla O’Leary
AbstractAuthor's information

    A recent challenge to the constitutionality of the Irish Workplace Relations Commission (WRC) has failed. The applicant in the case at hand argued that the WRC was unconstitutional for two reasons: (a) that the WRC carries out the administration of justice in breach of the general constitutional rule that only the courts may administer justice; and (b) several of the statutory procedures of the WRC were so deficient that they failed to vindicate the applicant’s personal constitutional rights. The High Court of Ireland dismissed both arguments.


Orla O’Leary
Orla O’Leary is a Senior Associate at Mason Hayes & Curran.

    The Court of Appeal (CA) has ruled that it was unlawful to discriminate against an employee because of a mistaken perception that she had a progressive condition which would make her unable to perform the full functions of the role in future.


Bethan Carney
Bethan Carney is a Managing Practice Development Lawyer at Lewis Silkin LLP.

    The Luxembourg Court of Appeal (Cour d’appel de Luxembourg) confirmed that an employee dismissed with notice and exempted from performing their work during the notice period is no longer bound by the non-competition duties arising from their loyalty obligation and can therefore engage in an employment contract with a direct competitor of their former employer during that exempted notice period. However, the Court of Appeal decided that, even if the former employee is in principle entitled to use the know-how and knowledge they acquired with their former employer, the poaching of clients during the notice period must, due to the facts and circumstances and in the light of the rules applicable in the financial sector, be considered as an unfair competition act and therefore constitutes serious misconduct justifying the termination of the employment contract with immediate effect.


Michel Molitor
Michel Molitor is the managing partner of MOLITOR Avocats à la Cour SARL in Luxembourg, www.molitorlegal.lu.

Régis Muller
Régis Muller is partner within the Employment, Pension & Immigration department of MOLITOR Avocats à la Cour SARL in Luxembourg, www.molitorlegal.lu.
Case Reports

2019/20 How to interpret the Posting of Workers Directive in the cross-border road transport sector? Dutch Supreme Court asks the ECJ for guidance (NL)

Journal European Employment Law Cases, Issue 2 2019
Keywords Private International Law, Posting of Workers and Expatriates, Applicable Law
Authors Zef Even and Amber Zwanenburg
AbstractAuthor's information

    In this transnational road transport case, the Dutch Supreme Court had to elaborate on the ECJ Koelzsch and Schlecker cases and asks for guidance from the ECJ on the applicability and interpretation of the Posting of Workers Directive.


Zef Even
Zef Even is a lawyer with SteensmaEven, www.steensmaeven.com, and professor at the Erasmus University Rotterdam.

Amber Zwanenburg
Amber Zwanenburg is a lecturer and PhD Candidate at the Erasmus University Rotterdam.

    Following an appeal by Uber against the Employment Appeal Tribunal’s (EAT) finding last year, which was featured in EELC 2018/9, that drivers engaged by Uber are ‘workers’ rather than independent contractors (reported in EELC 2018-1), the Court of Appeal (CA) has now upheld the EAT’s decision. The CA also upheld the finding of the Employment Tribunal (ET), which was featured in EELC 2017/10, that drivers are working when they are signed into the Uber app and ready to work (reported in EECL 2017-1). 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.


Jemma Thomas
Jemma Thomas is a Senior Associate Solicitor at Lewis Silkin LLP.

    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.
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.

    The Supreme Court has ruled in favour of a man seeking to establish that, if he died, his husband should be entitled to the same survivor’s pension as a female spouse would receive in the same circumstances. The Court unanimously held that an exemption in the Equality Act 2010 allowing employers to exclude same-sex partners from pension benefits accruing before December 2005, was incompatible with EU law and should be disapplied.


Anna Bond
Anna Bond is an associate at Lewis Silkin LLP: www.lewissilkin.com.

    Under the Latvian Labour Law an employee has the right to terminate an employment contract with immediate effect, i.e. without complying with the statutory notice period of one month, if the employee has ‘good cause’. Under the Labour Law, ‘good cause’ is any situation, which, based on considerations of morality and fairness, would not allow for the employment to continue. If an employee terminates their employment contract for good cause the employer must pay severance to the employee based on the employee’s years of service with the employer and amounting to between one and four months’ average earnings. If the employee gives notice for good cause, this terminates the employment contract with immediate effect.
    Even if the employer disagrees with the reasons given in the termination notice, the employer cannot terminate the employment contract on any other ground and does not have the right to challenge the validity of the notice in court. However, if the employer suffers loss as a result of the immediate termination; its reputation is damaged based on the reasons given in the notice; or it has faced some other adverse consequence; the employer can bring a claim arguing that what is stated in the notice is untrue.


Andis Burkevics
Andis Burkevics is a senior associate with the Latvian office of law firm SORAINEN (www.sorainen.com).

    It was direct sex discrimination for a male employee who wished to take shared parental leave (SPL) to be entitled only to the minimum statutory pay where a female employee would have been entitled to full salary during an equivalent period of maternity leave, according to a first-instance decision from the Employment Tribunal (ET).


Anna Bond
Anna Bond is an Associate Solicitor at Lewis Silkin LLP.
Case Reports

2017/31 Lawful positive discrimination in favour of women (FR)

Journal European Employment Law Cases, Issue 3 2017
Keywords Discrimination (other), Positive discrimination
Authors Claire Toumieux and Susan Ekrami
AbstractAuthor's information

    Company agreement provisions granting a half-day of leave to female employees on International Women’s Day constitute lawful positive discrimination in favour of women.


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).

    On 6 December 2016, the Danish Supreme Court delivered its long-awaited judgment on the case of Ajos, addressing the issue of whether a private employer was entitled to refuse to make a redundancy payment in reliance on the former section 2a(3) of the Danish Salaried Employees Act or whether the general principle against discrimination on grounds of age needed to take precedence. It concluded that the employer was entitled to refuse to pay.


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