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Case Reports

2016/52 Pregnancy and job offers (NL)

Journal European Employment Law Cases, Issue 4 2016
Keywords Gender, Pregnancy, Dismissal
Authors Anton van Leeuwen
AbstractAuthor's information

    A discriminatory refusal to offer an employee a new employment contract upon expiry of a fixed term contract is not discriminatory dismissal but a discriminatory refusal to give access to employment. The employer is liable for emotional damages.


Anton van Leeuwen
Anton van Leeuwen is an attorney at SteensmaEven in Rotterdam.

    The Industrial Disputes Court considered certain substantive and procedural issues in the context of a claim for sexual harassment and victimisation. This case provides a good illustration of the principles the tribunals apply when examining sexual harassment cases and how these are interpreted by Cypriot employment courts.


Anna Praxitelous
Anna Praxitelous is a lawyer with George Z. Georgiou & Associates LLC, www.gzg.com.cy. This article was originally edited by, and first published on, www.internationallawoffice.com.

    The Austrian Supreme Court has ruled that the general prohibition of Muslim face veils by an employer does not constitute unlawful discrimination. In this landmark decision, Austria’s Supreme Court expresses the view that an uncovered face is a prerequisite to proper communication. Thus, termination of employment by reason of an employee’s refusal to come to work unless she can wear a face veil is not unlawful under the Austrian Equal Treatment Act. Whether this rule also applies to other religious clothing such as headscarves remains to be seen.


Hans Georg Laimer
Hans Georg Laimer is a partner at zeiler.partners Rechtsanwälte GmbH.

Lukas Wieser
Lukas Wieser is an attorney at law at zeiler.partners Rechtsanwälte GmbH.

    The UK Supreme Court has held that the mistreatment of two Nigerian employees based on their vulnerable immigration status, did not amount to direct or indirect discrimination. The question for the Court was whether the employees had been discriminated against on the basis of their nationality. The Court accepted that immigration status is a function of nationality, but that it is not the same thing.


Hayley Band
Hayley Band is a Paralegal at Lewis Silkin LLP, www.lewissilkin.com.

    A staffing agency rejected an application for an advertised job because the applicant refused to remove her hijab. The court of first instance saw no discrimination, the Court of Appeal did. The plaintiff was awarded €500 but had to bear her own legal expenses.


Caterina Rucci
Caterina Rucci is a partner at Bird & Bird in Milan, www.twobirds.com.

    Following a restructure of his employer, an over 50 year old employee was deprived of the opportunity to apply for voluntary redundancy, compared to his under 50 year old colleagues, because it would have triggered early retirement resulting in a higher redundancy package. The Employment Tribunal (‘ET’) held that the use of under 50 year old comparators was not appropriate because the comparators were not entitled to early retirement and were therefore in materially different circumstances compared to the claimant. On appeal to the Employment Appeal Tribunal (‘EAT’), the EAT held that the fact that the comparators were not entitled to early retirement was not a “relevant circumstance” making the comparators invalid. A prima facie case of direct age discrimination was therefore made out. The EAT remitted the case back to the original ET to determine if the employer’s direct discrimination could be justified.


Sarah O’Brien
Sarah O’Brien is a trainee solicitor at Lewis Silkin LLP.
Case Reports

2016/3 Supreme Court allows transferee to differentiate between ‘own’ and acquired employees (PL)

Journal European Employment Law Cases, Issue 1 2016
Keywords Differing the monthly wages after the workplace has been moved on to another employer
Authors Ph.D Marcin Wujczyk
AbstractAuthor's information

    Paying employees acquired by way of the transfer of an undertaking less than the transferee’s original staff not discriminatory. The Supreme Court recently came to this conclusion based on a rather daring interpretation of a provision of national law aimed at transposing an EU directive. Although Polish law obligates employers to treat employees who perform the same work equally regardless of personal characteristics, the provision at issue should be read more narrowly.


Ph.D Marcin Wujczyk
Marcin Wujczyk, Ph. D., is a partner with Ksiazek & Bigaj in Krakow, www.ksiazeklegal.pl.

    Mr Abrams was a member of a limited liability partnership (LLP) and was due to retire. For tax reasons, shortly before retirement Mr Abrams decided to set up a limited company to take his place as a member of the LLP. This was accepted by the LLP. Mr Abrams’s employment by the LLP was stopped and he no longer had a continuing contractual relationship with it. The limited company, as a member of the LLP, was entitled to receive the profit share that Mr Abrams would have received had he continued as a member. It was also agreed that this limited company would supply the services of an appropriate fee-earner to the LLP (which was, in practice, Mr Abrams).
    When Mr Abrams reached retirement age, the LLP tried to terminate his services on the basis that he had reached retirement age and the LLP objected to Mr Abrams’s limited company continuing to be a member of the LLP.
    Mr Abrams and his company brought a claim of age discrimination against the LLP at the Employment Tribunal (ET) and the ET had to decide if a limited company could bring such a claim, which was effectively that it had suffered detrimental treatment because of a protected characteristic of someone with whom it was associated. The ET decided it could and the respondent appealed to the Employment Appeal Tribunal (EAT).


Florence Chan
Florence Chan is a Legal Assistant at Lewis Silkin Hong Kong: www.lewissilkinemployment.com.

    In accordance with EU law, the prohibition against gender-based discrimination (in this case: dismissal relating to pregnancy) cannot be limited to employment relationships as defined in national law: it must also apply to other types of legal relationship, where one party provides services to another party for consideration, for an open-ended period of time under the supervision of a principal.


Gabriella Ormai
Gabriella Ormai is a partner and

Péter Bán
Péter Bán is senior counsel with CMS Cameron McKenna LLP, www.cms-cmck.com.

    Austrian law permits the dismissal of an employee during parental leave only in cases where the employer cannot reasonably be expected to continue the contractual relationship. The colour of a hair ribbon does not justify the termination of a young father’s employment as a bus driver.


Christina Hießl
Christina Hießl is invited professor at Yonsei University, Graduate School of Social Welfare, Seoul http://yonsei.ac.kr.

    The employer may unilaterally stipulate or agree a salary with an employee that goes beyond the equal treatment standards, to the employee’s benefit if there is a material reason. The reason must either represent a competitive advantage compared to other employees, or the unequal treatment must be a substantial requirement necessary for the particular work.


Nataša Randlová
Nataša Randlová is a lawyer with the Prague firm Randl Partners, www.randls.com.
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