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    The Arnhem Court of Appeal has examined whether an employee was reasonably able to take leave, applying the ECJ’s Max Planck and Kreuziger judgments. According to the Court, the employer did not violate its obligation to inform the employee regarding the lapse of the right to paid annual leave. The Court stated that the employee was reasonably able to take leave, despite being incapacitated for work due to sickness. The Court ruled that the employee was not entitled to an allowance in lieu of untaken paid annual leave, as the right to such leave had lapsed.


Tessa van der Stel
Tessa van der Stel recently graduated from Erasmus School of Law, Rotterdam.

Zef Even

    An Employment Tribunal (ET) decision involving an advertising agency has highlighted the dangers for employers of taking an overly aggressive approach to reducing gender pay gaps. It also provides a reminder that all discrimination is unlawful, even where the victims are from a historically privileged group.


Colin Leckey
Colin Leckey is a partner at Lewis Silkin LLP.
Rulings

ECtHR 7 December 2021, app. no. 29582/09 (Yakut Republican Trade-Union Federation – v – Russia), Unions

Yakut Republican Trade-Union Federation – v – Russia, Russian case

Journal European Employment Law Cases, Issue 4 2021
Keywords Unions
Abstract

    A court’s order to a trade-union federation to expel a grassroots union of working prisoners because of a statutory ban on their unionization did not violate article 11-1 of the Charter.

    Building upon the ECJ case law qualifying stand-by time with significant availability obligations of volunteer firefighters as working time, the Belgian Court of Cassation has upheld a system of compensation by which stand-by time pays less than regular working time.


Gautier Busschaert
Gautier Busschaert is an attorney-at-law at Van Olmen & Wynant, Brussels.
Pending Cases

Case C-560/21, Privacy

ZS – v – Zweckverband ‘Kommunale Informationsverarbeitung Sachsen’ KISA, a body governed by public law, reference lodged by the Bundesarbeitsgericht (Germany) on 13 September 2021

Journal European Employment Law Cases, Issue 4 2021
Keywords Privacy
Rulings

ECtHR 9 November 2021, app. no. 31549/18 (Špadijer v. Montenegro), Privacy, Whistleblowing

Ms. Špadijer – v – Montenegro, Montenegro case

Journal European Employment Law Cases, Issue 4 2021
Keywords Privacy, Whistleblowing
Abstract

    States must protect the physical and psychological integrity of individuals from others, including setting up a legal framework with that aim in an adequate way.

Pending Cases

Case C-650/21, Age Discrimination

FW, CE, reference lodged by the Verwaltungsgerichtshof (Austria) on 27 October 2021

Journal European Employment Law Cases, Issue 4 2021
Keywords Age Discrimination
Pending Cases

Cases C-524/21 and C-525/21, Insolvency

IG – v – Agenția Județeană de Ocupare a Forței de Muncă Ilfov and Agenția Județeană de Ocupare a Forței de Muncă Ilfov – v – IM, reference lodged by the Curtea de Apel București (Romania) on 24 August 2021

Journal European Employment Law Cases, Issue 4 2021
Keywords Insolvency
Pending Cases

Case C-681/21, Age Discrimination, Pension

Versicherungsanstalt öffentlich Bediensteter, Eisenbahnen und Bergbau, B, reference lodged by the Verwaltungsgerichtshof (Austria) on 11 November 2021

Journal European Employment Law Cases, Issue 4 2021
Keywords Age Discrimination, Pension
Case Reports

Access_open 2021/36 No discrimination of reduced hours employees (DK)

Journal European Employment Law Cases, Issue 4 2021
Keywords Disability Discrimination
Authors Christian K. Clasen
AbstractAuthor's information

    In four recent cases, the Danish Eastern High Court addressed the question of whether it was indirect disability discrimination to dismiss four reduced hours employees (fleksjobbere) as part of a cost-saving process because they lacked essential core skills. The High Court ruled in favour of the employer, stating that the employer was not required to maintain the employees’ employment as it would be incompatible with the new demands for qualifications caused by the cutbacks. Consequently, the dismissals did not constitute indirect disability discrimination.


Christian K. Clasen
Christian K. Clasen is a partner at Norrbom Vinding, Copenhagen.
Pending Cases

Case C-574/21, Miscellaneous

QT – v – Czech Republic a.s., reference lodged by the Nejvyšší soud České republiky (Czech Republic) on 20 September 2021

Journal European Employment Law Cases, Issue 4 2021
Keywords Miscellaneous

    A (host) Member State cannot make the exclusion of pension rights from bankruptcy estate dependent on obtaining prior tax approval in that country, if the scheme has already been tax approved in the home Member State, unless there is an overriding reason of public interest to do so. The ECJ’s summary of the case is available on: https://curia.europa.eu/jcms/upload/docs/application/pdf/2021-11/cp210200en.pdf.

    The Court of Appeal (CA) has allowed an appeal by HM Revenue & Customs (HMRC) against a decision that there was insufficient mutuality of obligation and control for football referees to be treated as employees for tax purposes.


Colin Leckey
Colin Leckey is a partner at Lewis Silkin LLP.

    The Irish High Court has determined that, pursuant to the definitions of ‘employment contract’ and ‘fixed-term employee’ in the Protection of Employees (Fixed-Term Work) Act 2003 (the ‘2003 Act’), a permanent employee temporarily upgrading to a more senior role on a fixed-term basis, was entitled to protection under the 2003 Act as a fixed-term employee despite the fact that he had the right to revert to his substantive terms and conditions as a permanent employee. The Court held that Council Directive 1999/70/EC on fixed-term work (the ‘Directive’) was not only concerned with an employee’s entitlement to continued employment, but also the nature, quality and terms and conditions of that employment. While Member States have the discretion to provide more favourable treatment to a broader category of employees than the Directive required, they could not define terms left undefined in the Directive or framework agreement on fixed-term contracts so as to arbitrarily exclude certain categories of workers from protection as ‘fixed-term workers’.


Sarah O’Mahoney
Sarah O’Mahoney is a General Knowledge Lawyer at Mason Hayes & Curran.
Rulings

ECJ 11 November 2021, case C-948/19 (Manpower Lit), Temporary Agency Work

UAB “Manpower Lit” – v – ES, ML, MP, VV, RV and EIGE (as joining party), Lithuanian case

Journal European Employment Law Cases, Issue 4 2021
Keywords Temporary Agency Work
Abstract

    Directive 2008/104 also applies if employees are assigned to the European Institute for Equality between Men and Women (EIGE), an EU institution. Unfortunately, no English translation of the case is available yet.

Pending Cases

Cases C-583/21 - C-586/21, Transfer

Various parties, reference lodged by the Juzgado de lo Social n.º 1 de Madrid (Spain) on 20 September 2021

Journal European Employment Law Cases, Issue 4 2021
Keywords Transfer

    If a worker takes annual leave when he is incapacitated for work due to illness, he is entitled to his full salary rather than a reduced amount which he is entitled to during illness.

    The court settles various technicalities on the interpretation of Regulation 883/2004.

Pending Cases

Case C-667/21, Privacy

ZQ – v – Medizinischer Dienst der Krankenversicherung Nordrhein, a body governed by public law, reference lodged by the Bundesarbeitsgericht (Germany) on 8 November 2021

Journal European Employment Law Cases, Issue 4 2021
Keywords Privacy
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