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Case Reports

Access_open 2021/13 Equal Treatment Authority’s decision does not bind the court (HU)

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.


Zsofia Olah
Zsofia Olah is a partner at OPL Law Firm.

    The Bulgarian Supreme Administrative Court has ruled that an employee’s right to a guaranteed payment from the Guaranteed Receivables Fund arises only after a court decision for opening of bankruptcy proceedings has been issued and the decision has been published in the Commercial Register with the Registry Agency of the Republic of Bulgaria. Therefore, if this condition is not met, the employee is not entitled to such payment even if the employer is de facto insolvent.


Kalina Tchakarova
Kalina Tchakarova is a partner at Djingov, Gouginski, Kyutchukov and Velichkov.


Andreea Suciu
Andreea Suciu is Managing Partner at Suciu | The Employment Law Firm in Bucharest, Romania.

Teodora Manaila
Teodora Manaila is a Senior Associate at Suciu | The Employment Law Firm in Bucharest, Romania.
Case Reports

2020/34 Challenge to validity of Workplace Relations Act 2015 unsuccessful (IR)

Journal European Employment Law Cases, Issue 3 2020
Keywords Unfair Dismissal, Fair Trial, Miscellaneous
Authors Orla O’Leary
AbstractAuthor's information

    A recent challenge to the constitutionality of the Irish Workplace Relations Commission (WRC) has failed. The applicant in the case at hand argued that the WRC was unconstitutional for two reasons: (a) that the WRC carries out the administration of justice in breach of the general constitutional rule that only the courts may administer justice; and (b) several of the statutory procedures of the WRC were so deficient that they failed to vindicate the applicant’s personal constitutional rights. The High Court of Ireland dismissed both arguments.


Orla O’Leary
Orla O’Leary is a Senior Associate at Mason Hayes & Curran.

    The Finnish Supreme Court held that a transfer of undertaking had taken place in a situation where no contract of transfer was concluded.


Janne Nurminen
Janne Nurminen is a Senior Associate with Roschier, Attorneys Ltd in Helsinki, www.roschier.com

    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.


Orla O’Leary
Orla O’Leary is a Senior Associate at Mason Hayes & Curran.

    This case report concerns the lawfulness of a notified boycott against Holship Norge AS (‘Holship’) by the Norwegian Transport Workers’ Union (‘NTF’). In its decision, the Supreme Court considered whether the collective agreement exemption from competition law could be applied, and whether the boycott was unlawful pursuant to the right to freedom of establishment established by Article 31 of the EEA Agreement, cf. Article 101 of the Constitution and Article 11 of the European Convention on Human Rights.
    The boycott would prevent Holship’s staff from loading and unloading ships docked at the Port of Drammen. NTF’s purpose was to force Holship to enter into a collective agreement containing a priority of engagement clause, reserving loading and unloading work for dockworkers associated with the Administration Office for Dock Work in Drammen. The majority of the plenary Supreme Court found (10-7) that such boycott would be unlawful pursuant to section 2 of the Boycott Act. The dissent concerns the EEA rules.


Kurt Weltzien
Kurt Weltzien is a lawyer in NHO, which is the main representative organisation for Norwegian employers. He has a PhD on the thesis “Boycott in labour conflicts”. Kurt Weltzien also represented NHO in the Supreme Court in the case discussed in this case report.

Anne-Beth Engan
Anne-Beth Engan is an associate with Advokatfirmaet Selmer DA in Oslo.

    An ‘independent contractor’ working for a company in a subordinate relationship should be considered as a de facto employee. In such a situation, the company and its legal representatives can be held liable for ‘concealed work’ and be subject to criminal penalties.


Charles Mathieu
Charles Mathieu is a lawyer with Jeantet in Paris, www.jeantet.fr.

    A day care provider, Estro Groep B.V., (‘Estro’) went into pre-arranged (‘pre-pack’) receivership. Immediately afterwards, a large part of its business was taken over by another day care provider, Smallsteps B.V. (‘Smallsteps’). The latter did not offer employment to all of Estro’s employees, taking the position that the takeover did not constitute the transfer of an undertaking. This position was based on the fact that Estro was in receivership at the time of the takeover. According to the Dutch law transposing the Acquired Rights Directive, such takeovers are exempted from the rules on transfers of undertakings. A union and five of the employees whom Smallsteps had not offered jobs, relying on the wording of Article 5(1) of the Directive (“insolvency proceedings which have been instituted with a view to the liquidation of the assets”), claimed that they had become Smallsteps employees. The court referred questions to the ECJ for a preliminary ruling.


Peter Vas Nunes
Peter Vas Nunes is an advocaat with BarentsKrans in The Hague, www.barentskrans.nl.
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