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Case Reports

2019/10 Employee’s right of choice between transferor and transferee in the event of a business transfer (NO)

Journal European Employment Law Cases, Issue 1 2019
Keywords Transfer of undertakings, Employees who transfer/refuse to transfer
Authors Bernard Johann Mulder
AbstractAuthor's information

    As a result of a transfer of an undertaking an employee lost her pension scheme rights. The transferor was bound by the pension scheme covering the employee which had been agreed upon in a collective agreement. However, the transferee company gave notification that it did not want to be bound by the collective agreement and, thus, the pension scheme. The Norwegian Supreme Court (Høyesterett) considered this loss a material negative change to the employment relationship. Therefore, the employee had the right to make use of the non-statutory exception rule of the right to insist upon continuation of the employment with the transferor, a non-statutory right of choice.


Bernard Johann Mulder
Bernard Johann Mulder is a professor at University of Oslo, Faculty of Law, Department of Private Law.

    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.


Andrea Pilati
Andrea Pilati is an Associate Professor of Labour Law at the University of Verona, Italy.
Case Reports

2018/9 Uber’s work status appeal rejected (UK)

Journal European Employment Law Cases, Issue 1 2018
Keywords Miscellaneous, Employment status
Authors Laetitia Cooke
AbstractAuthor's information

    Following an appeal by Uber against an employment tribunal (ET) finding last year, which was featured in EELC 2017/10, that its drivers are ‘workers’ and not self-employed contractors (reported in EELC 2017-1), the Employment Appeal Tribunal (EAT) has now upheld the ET’s original decision. The EAT rejected Uber’s arguments that it was merely a technology platform, as well as its statement that it did not provide transportation services. This decision is important as it means that Uber drivers are entitled to certain rights under UK law, such as the right to holiday pay, to the national minimum wage (NMW) and protection against detrimental treatment for ‘blowing the whistle’ against malpractice. Uber has approximately 40,000 drivers (and about 3.5 million users of its mobile phone application in London alone) and so this decision has potentially significant financial consequences for the company.


Laetitia Cooke
Laetitia Cooke is an Associate at Lewis Silkin LLP.

    The UK Supreme Court has held that the mistreatment of two Nigerian employees based on their vulnerable immigration status, did not amount to direct or indirect discrimination. The question for the Court was whether the employees had been discriminated against on the basis of their nationality. The Court accepted that immigration status is a function of nationality, but that it is not the same thing.


Hayley Band
Hayley Band is a Paralegal at Lewis Silkin LLP, www.lewissilkin.com.

    The Belgian Labour Court decided in this case that the attitude/behaviour of an employer towards an employee constitutes harassment and discrimination, as the behaviour was such that the employee could have had the impression that he could lose his job because of his state of health. The employee resumed work after long-term incapacity owing to heart disease, but only on a part-time basis.
    The Court considered that the successive actions of the employer towards his employee were aimed at ending his employment rather than actively promoting reintegration. Such behaviour, on the facts, could be considered as harassment and discrimination.
    Moreover, the Court specified that the health of the employee, who had partially resumed work after being off sick for heart disease, could be regarded as a disability in accordance with EU Directive 2000/78. The Court explicitly referred to the ECJ HK Danmark case.


Isabel Plets

Karl Goethals
Isabel Plets and Karl Goethals are lawyers with Lydian in Brussels, www.lydian.be.
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