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. |
Case Reports |
2021/20 Qualification of on-call duty as actual working time (LU) |
Journal | European Employment Law Cases, Issue 2 2021 |
Keywords | Working Time |
Authors | Michel Molitor |
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Case Reports |
2021/24 Supreme Court confirms that Uber drivers are ‘workers’ (UK) |
Journal | European Employment Law Cases, Issue 2 2021 |
Keywords | Employment Status, Working Time |
Authors | Colin Leckey |
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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. |
Case Reports |
2021/22 Changes in the freedom of contract in employment contract law during a pandemic (HU) |
Journal | European Employment Law Cases, Issue 2 2021 |
Keywords | Miscellaneous |
Authors | Kristof Toth |
AbstractAuthor's information |
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Court rejected the motion to establish the unconstitutionality of Section 6(4) and its annulment, since it was repealed on 18 June 2020.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. |
Case Reports |
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Journal | European Employment Law Cases, Issue 2 2021 |
Keywords | Race, Nationality Discrimination, Discrimination General |
Authors | Zsofia Olah |
AbstractAuthor's information |
This case involved an employee who claimed that her two consecutive employers breached the principle of equal treatment during their employment relationships in relation to her belonging to the Roma minority. The employee built her case on the decision of the Equal Treatment Authority, which declared that her employers discriminated against her. The Curia (the highest judicial authority in Hungary) found that the decision of another authority has no binding effect on a court according to Act III of 1952 on Civil Procedure and that in cases concerning equal treatment, the burden of proof lies on the defendant (employer) to prove that there is no link between the disadvantage suffered by the plaintiff (employee) and her protected characteristic. The Curia and regional courts also found that the employer fulfils this obligation if it successfully proves that it assessed the applicant’s qualifications, professional suitability and attitude towards work when it decided on the question of whom to employ. |
Case Reports |
2021/23 Crowdworking: An occupation between self-employment and dependence (GE) |
Journal | European Employment Law Cases, Issue 2 2021 |
Keywords | Employment Status |
Authors | Katharina Gorontzi and Jana Voigt |
AbstractAuthor's information |
The German Federal Labour Court (Bundesarbeitsgericht, ‘BAG’) has ruled that the user of an online platform (‘crowdworker’) who takes on so-called ‘microjobs’ on the basis of a framework agreement concluded with the platform operator (‘crowdsourcer’) can be an employee of the crowdsourcer. This applies in a case where the framework agreement is aimed at a repeated acceptance of such microjobs. The decisive factor is whether the crowdworker performs work that is subject to instructions and is determined by third parties in the context of the actual performance of the contractual relationship. The name of the contract is irrelevant. One assumes an employment relationship if the crowdsourcer controls the collaboration via an online platform operated by them in such a way that the crowdworker cannot freely shape their activity in terms of place, time and content. |
Case Reports |
2021/14 End of the Achbita saga in Belgium: National judge rejects indirect discrimination and criticises duty to look for alternative position in case of refusal to comply with neutrality policy (BE) |
Journal | European Employment Law Cases, Issue 2 2021 |
Keywords | Religious Discrimination |
Authors | Gautier Busschaert |
AbstractAuthor's information |
On 12 October 2020, the Labour Court of Appeal of Ghent ruled that there was no indirect discrimination in the case of Mrs. Achbita, because a policy of neutrality does not disadvantage Muslim women who want to wear a headscarf more than any other worker. The Labour Court of Appeal was also of the opinion that the employer should not examine alternative job positions. |
Case Reports |
2021/21 The time spent in isolation at work during a state of emergency represents working time (RO) |
Journal | European Employment Law Cases, Issue 2 2021 |
Keywords | Working Time |
Authors | Andreea Suciu and Teodora Manaila |
AbstractAuthor's information |
The Bucharest Tribunal has ruled that the time spent by employees in isolation at work during a Covid-19 pandemic state of emergency represents working time. However, the time spent in isolation at home following the period of isolation at work does not constitute rest time. |
Case Reports |
2021/17 The Court of Appeal clarifies the Irish position on dismissal of an employee during the probation period (IR) |
Journal | European Employment Law Cases, Issue 2 2021 |
Keywords | Unfair Dismissal |
Authors | Orla O’Leary and Laura Ryan |
AbstractAuthor's information |
The Court of Appeal has overturned a High Court decision which granted injunctive relief to prevent the defendant from removing the plaintiff from his position as chief financial officer during his probationary period. |
Case Reports |
2021/16 Employer’s right of selection upon unilateral termination of the employment relationship (BG) |
Journal | European Employment Law Cases, Issue 2 2021 |
Keywords | Selection procedure, Unilateral Termination |
Authors | Kalina Tchakarova |
AbstractAuthor's information |
The Bulgarian Supreme Court of Cassation in a decision of 2 February 2021 has ruled that in cases where the selection process is not a mandatory part of the termination procedure it is entirely up to the employer to conduct the selection and base its termination decisions on the results of such selection. |
Case Reports |
2021/19 Employees’ contracts can be split so they transfer to multiple employers on a TUPE service provision change (UK) |
Journal | European Employment Law Cases, Issue 2 2021 |
Keywords | Transfer of Undertakings, Employees who Transfer/Refuse to Transfer |
Authors | Amy Cooper |
AbstractAuthor's information |
In the case of a ‘service provision change’ under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE), where a service is outsourced or re-tendered, the Employment Appeal Tribunal (EAT) has ruled that an employee’s contract can be split so they go from working full-time for one employer to working part-time for two or more employers. |
Case Reports |
2021/6 Conclusion of the ECJ case on whether obesity may constitute a disability (DK) |
Journal | European Employment Law Cases, Issue 1 2021 |
Keywords | Disability Discrimination |
Authors | Christian K. Clasen |
AbstractAuthor's information |
In 2014, the ECJ was presented with a preliminary reference from the District Court in Kolding on the matter of whether EU law provides protection against discrimination on grounds of obesity with regard to employment and occupation. Following the ECJ’s ruling, first the District Court and later the High Court found that an employee’s obesity as such did not constitute a disability within the meaning of Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation since his obesity had not constituted a limitation or inconvenience in the performance of his job. |
Case Reports |
2021/3 Application of a collective agreement and discrimination based on membership (non-membership) of a trade union (LT) |
Journal | European Employment Law Cases, Issue 1 2021 |
Keywords | Collective Agreements, Other Forms of Discrimination |
Authors | Vida Petrylaitė |
AbstractAuthor's information |
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. |
Case Reports |
2021/11 Expiration of leave only with prior information from the employer, even if the employee was not able to take the leave due to illness, a reduction of work capacity or an incapacity for work? (GE) |
Journal | European Employment Law Cases, Issue 1 2021 |
Keywords | Paid Leave |
Authors | Katharina Gorontzi, Nina Stephan and Jule Rosauer |
AbstractAuthor's information |
According to German law, leave entitlements of an employee shall in principle expire at the end of the calendar year or a permissible carryover period. However, based on the case law of the ECJ, this shall only apply if the employer has previously enabled and summoned the employee to take leave and the employee has nevertheless not taken it. But what happens if an employee is incapacitated for work for a longer period of time and therefore is unable to take his or her annual leave? Does the employer also have to inform this employee about their leave entitlement? The Federal Labour Court (Bundesarbeitsgericht, ‘BAG’) recently had to deal with this question in two cases and now the ECJ will have to address this matter. This is because the BAG has asked the ECJ to decide whether and when an employee’s entitlement to paid leave can expire if an employee loses their ability to work during the course of the leave year, while the employee could have taken at least part of the annual leave before becoming incapacitated for work, but the employee was not properly informed by the employer about their leave entitlement. |
Case Reports |
2021/2 Warning strike timing (HU) |
Journal | European Employment Law Cases, Issue 1 2021 |
Keywords | Collective Agreements, Unions, Other Fundamental Rights |
Authors | Zsófia Oláh and Ildikó Rácz |
AbstractAuthor's information |
This case involved an employer who claimed that a trade union organised an unlawful warning strike. The Curia (the highest judicial authority in Hungary) found that the trade union violated its obligation to cooperate with the employer according to Act No. 7 of 1989 on Strikes. The Curia and also the Regional Courts made some clear points on the question of the timing of a warning strike. The employer must be notified of a planned strike in sufficient time, which requirement also applies in the case of warning strikes. The time can be considered as sufficient if the employer is able to fulfil its rights to protect its property, prevent damage resulting from the strike, to carry out its duties to protect life and property, and to organise work accordingly. Failing this obligation, the warning strike is unlawful. The notice shall state the date and time that such action will commence. |
Case Reports |
2020/52 An employer cannot compel an employee, without notice, to take deferred annual leave (FR) |
Journal | European Employment Law Cases, Issue 4 2020 |
Keywords | Paid Leave |
Authors | Claire Toumieux and Susan Ekrami |
AbstractAuthor's information |
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Case Reports |
2020/49 Employing the former employees of a former service provider represents transfer of undertakings (RO) |
Journal | European Employment Law Cases, Issue 4 2020 |
Keywords | Transfer of Undertakings |
Authors | Andreea Suciu and Teodora Manaila |
AbstractAuthor's information |
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Case Reports |
2020/50 Transfer-related contractual changes void even if beneficial for employees (UK) |
Journal | European Employment Law Cases, Issue 4 2020 |
Keywords | Transfer of Undertakings, Employment Terms |
Authors | Lisa Dafydd |
AbstractAuthor's information |
The Employment Appeal Tribunal (EAT) has ruled that the provision under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) which renders changes to employees’ terms and conditions void if they are made because of the transfer applies to changes that are advantageous as well as detrimental to employees. On the facts of the case, this meant that owner-directors who had made significant improvements to their own employment terms before a TUPE transfer could not enforce these against the transferee employer. |
Case Reports |
2020/45 Non-Seafarers Work Clause: contributing to better employment conditions or not? (NL) |
Journal | European Employment Law Cases, Issue 4 2020 |
Keywords | Unions, Miscellaneous |
Authors | Erick Hagendoorn |
AbstractAuthor's information |
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. |
Case Reports |
2020/51 Compensating untaken leave in case of termination without good cause – preliminary questions asked (AT) |
Journal | European Employment Law Cases, Issue 4 2020 |
Keywords | Paid Leave |
Authors | Maria Schedle |
AbstractAuthor's information |
The Austrian Supreme Court has asked preliminary questions about the lawfulness of Section 10(2) of the Austrian Law on Annual Leave which stipulates that an employee is not entitled to an allowance in lieu of annual leave in respect to the current (last) working year if they terminate the employment relationship prematurely without good cause. |
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. |