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.

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.

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.

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.

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.

The Polish Supreme Court has held that a criterion of discrimination may also be a relationship of a social or familial nature that exists in the workplace and whose existence or absence on the part of the employee results in different treatment by the employer.

The author discusses the recent ECJ judgments in the cases Egenberger and IR on religious discrimination.

The Latvian Supreme Court recently used the ECJ Max Planck and Kreuziger judgments to explain how an employer can escape its obligation to compensate an employee for unused leave at the end of the employment relationship. The employer must prove that (a) it was possible for the employee to use the leave, and (b) the employer has in good time informed the employee that leave, if not used, might be lost and will not be compensated.

On 8 November 2018 the Italian Constitutional Court prohibited the reform of the protection against unfair dismissal introduced by the so-called Jobs Act (Legislative Decree no. 23 of 4 March 2015), insofar as it imposed a requirement on the judge to quantify the compensation due for unfair dismissal based on an employee’s seniority only. According to the Court, such a requirement violated not just internal constitutional norms, but also Article 24 of the (Revised) European Social Charter of 1996. This contribution focuses particularly on the EU law questions deriving from such an important judgment.

The Czech Supreme Court has ruled that the concept of good moral conduct must be taken into account when assessing whether an employee has breached his or her non-compete obligation and thus whether it is fair to demand that the employee pay a contractual penalty for the breach. The Court annulled the penalty.

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.

Recently, the Court of Amsterdam decided to ask preliminary questions to the ECJ about EU citizens’ rights of British nationals, anticipating Brexit. However, two weeks later, it allowed an appeal against this decision. It is therefore unclear if and when these questions will be asked.

The Court of Appeal held that disciplinary sanctions are subject to the general principles of criminal law and therefore must respect the principle of legality. Consequently, the wording of any collective agreement that is used as the legal basis of a sanction must be sufficiently clear and precise to enable the employee to understand the consequences of his or her misconduct.

On 6 December 2016, the Danish Supreme Court delivered its long-awaited judgment on the case of Ajos, addressing the issue of whether a private employer was entitled to refuse to make a redundancy payment in reliance on the former section 2a(3) of the Danish Salaried Employees Act or whether the general principle against discrimination on grounds of age needed to take precedence. It concluded that the employer was entitled to refuse to pay.

In one of the first high-profile cases under the Protected Disclosures Act 2014 (i.e. whistleblowing legislation), two employees have successfully secured an injunction in the Circuit Court which prevents their dismissal.

The French state was held liable by the Administrative Court of Clermont-Ferrand for failing to transpose Article 7§1 of EU Directive 2003/88/EC on working time.

A decision issued by the Constitutional Court on 3 March 2016 upholds a High Court decision on whether evidence obtained through video surveillance at the work place without previously informing the employee or the works council of the recording infringes employees’ privacy. The existence of cameras in the workplace was only made known via a sticker on the shop window, but the Constitutional Court found that it provided sufficient information to employees. The Court found that, as there was a prior suspicion of theft by the employee, temporary recording of the cashier area was lawful and did not require prior consent. The judgment sets out the criteria to be used to determine a fair balance between the competing interests of employee privacy and the employer’s right to compliance.

Following the latest case law of the Supreme Court of Lithuania, it is not enough to state that an employee cannot work for a competitor during their employment. It is necessary to pay compensation in order for the non-compete obligation to be legally enforceable, because of the onerous nature of the obligation.

A general prohibition against displaying religious, political and philosophical symbols constitutes indirect discrimination which fails to meet the proportionality requirement. In this case the court took account of the fact that it was possible for the employer to distinguish between back-office and front-office work (the claimant worked in a back office position) and also because of the absence of complaints by colleagues or clients and the absence of any attempt by the claimant to encourage other women to wear a headscarf.

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.