The Danish Supreme Court recently held that an employer had discharged the reversed burden of proof in a case concerning a physiotherapist who was dismissed shortly after her return from maternity leave. |
Case Reports |
2020/47 The Danish Supreme Court decides on reversed burden of proof (DK) |
Journal | European Employment Law Cases, Issue 4 2020 |
Keywords | Gender Discrimination |
Authors | Christian K. Clasen |
AbstractAuthor's information |
Case Reports |
2020/48 Norwegian parental benefits provisions disadvantaging men found outside the scope of Equal Treatment Directive (NO) |
Journal | European Employment Law Cases, Issue 4 2020 |
Keywords | Parental Leave, Gender Discrimination |
Authors | Jonas Thorsdalen Wik and Dag Sørlie Lund |
AbstractAuthor's information |
On 13 December 2019 the European Free Trade Association (EFTA) Court held that a national provision that renders a father’s entitlement to parental benefits during a shared period of leave dependent on the mother’s situation, but not vice versa, fell outside the scope of Directive 2006/54/EC (the Equal Treatment Directive) since it did not concern “employment and working conditions” within the meaning of Article 14(1)(c) of that Directive. The action brought by the EFTA Surveillance Authority (ESA) was thus dismissed. The Court consequently did not consider whether the Norwegian rules amounted to unlawful discrimination under the Directive. Furthermore, no assessment was made as to the potential breach with the general principle of equality of gender under EEA law, as this had not been pleaded by ESA. |
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. |
Case Reports |
2020/20 Dismissal unfair where decision-maker was not given accurate information (UK) |
Journal | European Employment Law Cases, Issue 2 2020 |
Keywords | Unfair Dismissal |
Authors | Ludivine Gegaden |
AbstractAuthor's information |
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. |
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”). |
Case Reports |
2020/31 Comparing job descriptions is insufficient for checking whether work is equally valuable (BG) |
Journal | European Employment Law Cases, Issue 3 2020 |
Keywords | Discrimination general |
Authors | Kalina Tchakarova |
AbstractAuthor's information |
The Bulgarian Supreme Administrative Court in a decision of 24 June 2019 has ruled that the mere comparison between the job descriptions of employees is not sufficient basis for establishing whether the employees are carrying out the same work or work of equal value and the courts should also take into consideration the practical aspects of the work, the specific working conditions and the tasks actually carried out. |
Case Reports |
2020/33 The concept of ‘maternity’ does not include, and therefore does not protect, mothers regarding discrimination related to ‘childcare’ (BE) |
Journal | European Employment Law Cases, Issue 3 2020 |
Keywords | Gender Discrimination, Other Forms of Discrimination |
Authors | Gautier Busschaert |
AbstractAuthor's information |
The Brussels Labour Court of Appeal, in a judgment of 10 September 2019, has ruled that the notion of ‘maternity’ contained in the Belgian Gender Act does not go as far as protecting mothers against discrimination with regards to childcare, since this would confirm a patriarchal role pattern. However, a recent legislative change introducing ‘paternity’ as a protected ground might cast doubt on the relevance of this ruling for the future. |
Case Reports |
2020/4 Admissibility of Employers’ Requirements regarding Religious Symbols in Workplace (GE) |
Journal | European Employment Law Cases, Issue 1 2020 |
Keywords | Religious discrimination |
Authors | Caroline Dressel |
AbstractAuthor's information |
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. |
Case Reports |
2020/5 An undefined number of consecutive fixed-term contracts for the duration of 12 years does not necessarily violate EU law (AT) |
Journal | European Employment Law Cases, Issue 1 2020 |
Keywords | Fixed-term work, Part-time work, Gender discrimination |
Authors | Ines Kager |
AbstractAuthor's information |
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. |
Case Reports |
2020/8 Right of temporary workers to the same pay for the same work (LT) |
Journal | European Employment Law Cases, Issue 1 2020 |
Keywords | Temporary agency work, Other forms of discrimination |
Authors | Vida Petrylaitė |
AbstractAuthor's information |
On 20 June 2019, Vilnius Regional Court in Lithuania (instance of appeal) delivered a decision in a case where the applicants claimed that a temporary employment agency, UAB Manpower Lit (the ‘Agency’), which recruited temporary workers (‘claimants’) for the European Institute for Gender Equality (‘EIGE’), paid them lower salaries than permanent staff. It was ruled that the Agency had discriminated against these workers by paying them lower salaries than they would have received if they had been recruited directly by EIGE. The Court also ordered the payment of pay arrears for a certain period to the temporary staff. |
Case Reports |
2020/3 Failure to reinstate an employee upon her return from parental leave in her initial position or a similar position with equivalent remuneration can constitute indirect gender discrimination (FR) |
Journal | European Employment Law Cases, Issue 1 2020 |
Keywords | Gender discrimination, Parental leave |
Authors | Claire Toumieux and Susan Ekrami |
AbstractAuthor's information |
Failure to reinstate an employee upon her return from parental leave in her initial position or a similar position with equivalent remuneration can constitute indirect gender discrimination. |