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 |
AbstractAuthor's information |
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 |
AbstractAuthor's information |
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Court rejected the motion to establish the unconstitutionality of Section 6(4) and its annulment, since it was repealed on 18 June 2020.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 |
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 |
2021/15 The concept of ‘establishment’ in the context of collective redundancies (AT) |
Journal | European Employment Law Cases, Issue 2 2021 |
Keywords | Collective Redundancies |
Authors | Andreas Tinhofer and Markus Blatnig |
AbstractAuthor's information |
In the context of collective redundancies the term ‘establishment’ (Betrieb) must be interpreted in compliance with the Collective Redundancies Directive 98/59/EC (the ‘Directive’). The early warning mechanism of Section 45a of the Austrian Labour Market Promotion Act (Arbeitsmarktförderungsgesetz, ‘AMFG’) is only triggered if the number of the planned redundancies reaches a relevant threshold in an establishment. In the present case the stores in question were qualified as separate establishments within the meaning of Section 45a AMFG. |
Case Reports |
2021/18 Fixed-term singers not comparable to permanent singers at the Royal Danish Theatre (DK) |
Journal | European Employment Law Cases, Issue 2 2021 |
Keywords | Fixed-Term Work, Other Forms of Discrimination |
Authors | Christian K. Clasen |
AbstractAuthor's information |
In a recent case, the Danish Supreme Court addressed the question of what constitutes a comparable permanent employee in relation to discrimination against fixed-term employees. The Supreme Court ruled that even though the two groups of fixed-term and permanent singers at the Royal Opera Chorus of the Royal Danish Theatre performed almost the same tasks, their positions were not comparable as the singers’ qualifications and skills were different and, for this reason, the difference in terms and conditions was not discriminatory. |
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 |
2021/7 The termination of employment by mutual agreement or by resignation occurring on the employer’s initiative to be considered when establishing the actual number of employees collectively dismissed (RO) |
Journal | European Employment Law Cases, Issue 1 2021 |
Keywords | Collective Redundancies |
Authors | Andreea Suciu and Andreea Serban |
AbstractAuthor's information |
The Vaslui Tribunal has recently annulled an individual dismissal decision issued during the state of alert in Romania due to formalities which had not been observed by the employer. While the judge invested with determining the matter limited their analysis to the elements contained in the individual dismissal decision, the judicial assistant ascertained, within a competing opinion, that the dismissal decision should have been annulled for other reasons, namely for the fact that, in reality, the employer had implemented a collective redundancy process without observing the procedure and employees’ rights in the event of such dismissal. Relying on the provisions of Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies, the judicial assistant has made an exhaustive analysis of the conditions required for the existence of a collective dismissal. |
Case Reports |
2021/4 Budget considerations can justify indirect discrimination (UK) |
Journal | European Employment Law Cases, Issue 1 2021 |
Keywords | Discrimination General, Age Discrimination |
Authors | Carolyn Soakell |
AbstractAuthor's information |
If an employer has a policy which is indirectly discriminatory and the employer’s aim is no more than saving money, the Court of Appeal (CA) has ruled that this cannot justify the discrimination. However, needing to balance the books can potentially be a valid justification for indirect discrimination. |
Case Reports |
2021/9 AGET Iraklis: another belated victory for the employer (GR) |
Journal | European Employment Law Cases, Issue 1 2021 |
Keywords | Information & Consultation, Collective Redundancies |
Authors | Effie Mitsopoulou |
AbstractAuthor's information |
The Supreme Court of Greece has clarified that the validity of terminations is not affected by the lack of consultation with the employees’ representatives, as per Directive 2002/14/EC on a general framework for informing and consulting employees. In case of non-compliance with such obligation, alternative administrative or judicial measures can be provided by the Member States. It further reiterated that the expediency and necessity of the company’s business decision to suddenly interrupt its plant operation cannot be subject to judicial control. |
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 |
2021/8 High Court rules that ‘workers’ should be protected from health and safety detriment (UK) |
Journal | European Employment Law Cases, Issue 1 2021 |
Keywords | Health & Safety, Employment Status |
Authors | Shalina Crossley |
AbstractAuthor's information |
The UK failed properly to implement EU health and safety law by restricting protection from detriment on health and safety grounds to ‘employees’, the High Court (HC) ruled in a recent case. Such protection should be extended to the broader category of ‘workers’. Importantly, this ruling potentially increases employers’ exposure to Covid-19-related health and safety claims. |
Case Reports |
2021/12 Expiry of untaken annual leave and entitlement to compensation (SI) |
Journal | European Employment Law Cases, Issue 1 2021 |
Keywords | Paid Leave |
Authors | Petra Smolnikar and Tjaša Marinček |
AbstractAuthor's information |
Following ECJ case law, the Supreme Court of the Republic of Slovenia has ruled that a worker is entitled to compensation for unused annual leave in the event that the termination of employment has occurred 15 months after the end of the transfer period (i.e. the period for the transfer of the right to use annual leave) provided for in national legislation. The relevant transposition period is therefore three months longer than the transposition period set out in the Slovenian law. |
Case Reports |
2021/5 Upper age limit for entrance to police force found discriminatory (IR) |
Journal | European Employment Law Cases, Issue 1 2021 |
Keywords | Age Discrimination |
Authors | Orla O’Leary |
AbstractAuthor's information |
An adjudication officer of the Irish Workplace Relations Commission has ruled that an upper age limit for entrance to An Garda Síochána (the national police force) was discriminatory on the grounds of age. |
Case Reports |
2021/10 Employee’s right to a guaranteed payment arises after a court decision for opening of bankruptcy proceedings is published (BG) |
Journal | European Employment Law Cases, Issue 1 2021 |
Keywords | Insolvency |
Authors | Kalina Tchakarova |
AbstractAuthor's information |
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. |