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.

In a summary proceeding, the Court of Rotterdam has held that it is not clear whether the Non-Seafarers Work Clause, prohibiting lashing work on board of container ships being carried out by the crew, does indeed contribute to better employment and/or working conditions of seafarers. As a result of which the Clause – at this time – cannot be held to be outside the scope of competition law and the claim for compliance with the provision has been rejected. In the media, unions have stated that they will continue to enforce compliance with the Non-Seafarers Work Clause. It remains to be seen whether a court in main proceedings will reach a similar verdict.

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.

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.

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.

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.

Austrian courts have to deal with an increasing number of cases concerning dismissal on grounds of (alleged) discrimination. The particular challenge is to a draw a conclusive distinction between the concepts of disability and sickness.

The Danish Supreme Court has upheld the decision from the Danish Eastern High Court (reported in EELC 2017/26) on the implementation of the Working Time Directive to the effect that an ‘intervention act’ can be deemed to be a collective agreement within the meaning of Article 18 of the Working Time Directive.

The highest administrative court in the Netherlands has delivered a razor-sharp ruling on the intra-community service provision set out in Articles 56 and 57 of the Treaty on the Functioning of the European Union). This concerns ‘new’ EU-nationals who are still under transitional measures with regard to access to the labour markets of ‘old’ EU Member States. The judgment was preceded by a request from the Chairman to a State Councillor Advocate General to deliver his opinion on various aspects of punitive administrative law practice in the Netherlands. Both the opinion and the judgment are a welcome clarification and addition (or even correction) on the practice.

A recent decision by the Labour Court found that a policy requiring employees to speak English in the workplace constituted discrimination on grounds of national origin but was objectively justifiable.

In an international road transport case the Dutch Appellate Court held that working from a given place is not relevant when applying the Posted Workers Directive.

The European Court of Human Rights (ECtHR) has recently ruled on a Hungarian law suspending payment of civil servants’ pensions for the period during which they are employed in certain areas of the public sector. The ECtHR found this law to be discriminatory as it breaches Article 14 of the European Convention on Human Rights (ECHR) read in conjunction with Article 1, Protocol 1. Hungary, as the respondent State, is to pay pecuniary and non-pecuniary damages and procedural costs and expenses to the applicant, Mr Gyula Fábián. The judgment was delivered on 15 December 2015 and, if not appealed to the Grand Chamber, will cease to be appealable on 15 March 2016.