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Journal European Employment Law Cases x Year 2020 x Category Case Reports x

    The Greek Supreme Court, in a case about the transfer of a business and the obligation on the transferee to continue employing the transferred employees, underlined the importance of a thorough and genuine control on all factors to be taken into consideration in order to conclude on the existence of a transfer of undertaking or not: the business transferred must retain an autonomous economic identity, in the sense that the functional link between the different factors transferred is retained, thus allowing the new entity to use them in order to exercise an economic activity identical or similar to the previous one.


Effie Mitsopoulou
Effie Mitsopoulou is an attorney-at-law at Effie Mitsopoulou Law Office.
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.

    The Greek Supreme Court in Plenary Session, in a long-awaited decision, has ruled that an employee who has not been able to exercise his right to annual leave due to long-term sick leave is still entitled to his paid annual leave as well as to annual leave allowance.


Effie Mitsopoulou
Effie Mitsopoulou is an attorney-at-law at Effie Mitsopoulou Law Office.

    Within the context of a transfer of undertaking in an asset reliant group of companies, the court should not just focus on whether the assets have been transferred between the two separate group companies, but also on whether one group company had actual control over the operation of the other group company.


Zef Even
Zef Even is a partner at SteensmaEven, Rotterdam, professor at Erasmus School of Law and editor-in-chief of EELC.

Eva Poutsma
Eva Poutsma is an attorney-at-law at SteensmaEven, Rotterdam.

    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 Supreme Court of the Netherlands has quashed a verdict of the Court of Appeal that held that a social plan provision stipulating the capping of a redundancy allowance in view of an entitlement to early retirement pension was invalid because of age discrimination. According to the Supreme Court, a more marginal justification test should have been applied to a social plan. The Court of Appeal, moreover, did not consider all the legitimate aims it specified and should also have taken additional social plan measures as well as pension measures from the past into account. By not doing so, it was not properly examined whether the social plan constituted age discrimination.


Albertine Veldman
Albertine Veldman is a lecturer in European and Dutch labour law at Utrecht University, The Netherlands.
Case Reports

2020/14 Sickness absence related to employee’s disability (DK)

Journal European Employment Law Cases, Issue 2 2020
Keywords Disability Discrimination, Unfair Dismissal
Authors Christian K. Clasen
AbstractAuthor's information

    Recently, the Danish Eastern High Court found that an employee’s sickness absence was a result of the employer’s failure to comply with its obligation to offer reasonable accommodation for the employee’s disability. For that reason the employee, who was dismissed in pursuance of the Danish ‘120-day rule’, was entitled to compensation for unfair dismissal under the Danish Anti-Discrimination Act.


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

    The Supreme Court has allowed an appeal by one of the UK’s major supermarket chains, overturning a finding that it was vicariously liable for a rogue employee’s deliberate disclosure of payroll data related to some 100,000 co-workers, of whom 10,000 brought a group claim for damages.


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

    The dismissal of an employee for gross misconduct was unfair because the investigating officer failed to share significant new information with the manager conducting the disciplinary hearing who decided to dismiss, the Employment Appeal Tribunal has ruled.


Ludivine Gegaden
Ludivine Gegaden is an Associate at Lewis Silkin LLP.

    The notice of collective redundancies required to be given to an employment agency pursuant to Section 17(1) of the German Protection Against Unfair Dismissal Act (Kündigungsschutzgesetz, ‘KSchG’) can only be effectively submitted if the employer has already decided to terminate the employment contract at the time of its receipt by the employment agency. Notices of termination in collective redundancy proceedings are therefore effective – subject to the fulfilment of any other notice requirements – if the proper notice is received by the competent employment agency before the employee has received the letter of termination.


Marcus Bertz
Marcus Bertz is an attorney-at-law at Luther Rechtsanwaltsgesellschaft mbH.

    In a recent Supreme Court decision, it was held by a 4-1 majority that there is no reason, in principle, why the provision of ‘reasonable accommodation’ for an employee with a disability should not involve the redistribution of duties.


Orla O’Leary
Orla O’Leary is an attorney-at-law at Mason Hayes & Curran, Dublin.

    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’) has decided that a social plan that distinguished between employees who were born in 1960 or later and employees who were born before 1960 for the calculation of severance payment did not constitute unjustified age discrimination. However, a regulation in a social plan which referred to the “earliest possible” entitlement to a statutory pension when calculating the severance payment constituted unjustified indirect discrimination against disabled persons.


Iness Gutt
Ines Gutt is an attorney-at-law at Luther Rechtsanwaltsgesellschaft mbH.
Case Reports

2020/22 Works council’s right to inspect remuneration lists (GE)

Journal European Employment Law Cases, Issue 2 2020
Keywords Information and Consultation, Privacy
Authors Robert Pacholski
AbstractAuthor's information

    The Federal Labour Court (Bundesarbeitsgericht, “BAG”) has held that a works council must be provided with the documents necessary for carrying out its duties at any time on request. A works committee or another committee of the works council formed in accordance with the provisions of the Works Constitution Act (Betriebsverfassungsgesetz, “BetrVG”) is entitled to inspect the lists of gross wages. This right to inspect is not limited to anonymized gross pay lists. Data protection considerations do not dictate that the right is limited to anonymized gross payrolls. The processing of personal data associated with the right of inspection is permitted under the European General Data Protection Regulation (“GDPR”) and the German Federal Data Protection Act (Bundesdatenschutzgesetz, “BDSG”).


Robert Pacholski
Robert Pacholski is an attorney-at-law at Luther Rechtsanwaltsgesellschaft mbH.

    In a surprise decision, with potentially wide-ranging ramifications, an Employment Tribunal (ET) has found that ‘workers’ as well as traditional ‘employees’ are covered by the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE).


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

    Many national decisions in Germany in the past had to deal with employers’ requirements regarding religious symbols in the workplace. Also, in 2017, the ECJ has dealt with two matters of such. Whilst the ECJ strictly refers to the principles of entrepreneurial freedom, the Federal Labour Court (Bundesarbeitsgericht, the ‘BAG’) tends to give priority to religious freedom. Last year, the BAG appealed to the ECJ for final clarification, in particular regarding the relationship between the basic rights of entrepreneurs and the constitutional right to religious freedom, by way of a preliminary ruling procedure with its decision dated 30 January 2019.


Caroline Dressel
Caroline Dressel is an attorney-at-law at Luther Rechtsanwaltsgesellschaft mbh
Case Reports

2020/6 Supreme Court judgment on the concept of comparable permanent employees (DK)

Journal European Employment Law Cases, Issue 1 2020
Keywords Fixed-term work, Other forms of discrimination
Authors Christian K. Clasen
AbstractAuthor's information

    In a recent case on fixed-term employment, the Danish Supreme Court addressed the question of what constitutes a comparable permanent employee. The Supreme Court ruled that four employees, who worked in a government agency, were not comparable with the agency’s permanent employees and for this reason they had not been discriminated against on the grounds of their fixed-term contracts.


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

2020/7 Successive fixed-term employment contracts (RO)

Journal European Employment Law Cases, Issue 1 2020
Keywords Fixed-term work
Authors Andreea Suciu and Teodora Manaila
AbstractAuthor's information

    The Craiova Court of Appeal has ruled that the continuous extensions of a fixed-term employment based on national provisions is not in accordance with the European jurisprudence. Relying on the findings of ECJ case C-614/15, the Craiova Court of Appeal made an exhaustive analysis of the relying arguments for subsequent extensions of fixed-term employments agreements for long periods of time and the objective reasons behind such use of contracts.


Andreea Suciu
Andreea Suciu is managing partner at Suciu I The Employment Law Firm, Bucharest, Romania.

Teodora Manaila
Teodora Manaila is an attorney-at-law at Suciu I The Employment Law Firm, Bucharest, Romania.

    On 3 October 2019, in case C-274/18 (Schuch-Ghannadan), the ECJ held that a national regulation, which provides for different maximum total durations of successive fixed-term employment contracts for part-time workers on the one hand and full-time workers on the other, could result in a discrimination of part-time workers and an indirect discrimination of women.


Ines Kager
Mag. Ines Kager is teaching and research assistant at WU Vienna University of Economics and Business.

    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
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