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Case Reports

2016/55 New Supreme Court decision on the distinction between independent contractors and employees (NO)

Journal European Employment Law Cases, Issue 4 2016
Keywords Independent contractors, Employees
Authors Marianne Jenum Hotvedt and Anne-Beth Engan
AbstractAuthor's information

    EU employment protection is usually limited to “employees”, meaning that independent contractors are not covered. However, EU law often leaves it to Member States to determine the meaning of employee. The directives regulating transfers of undertakings, collective redundancies, written working conditions, information and consultation, part-time work, temporary agency workers etc. are all examples of protection covering only ‘employees’ as defined by each Member State.
    Consequently, the interpretation of ‘employee’ at the national level determines whether protection in EU law applies. This case report concerns the distinction between an independent contractor and employee. The question was whether a support worker for a child needing extra care and support should be considered as employed by Ålesund municipality. The majority (4-1) found that the support worker was an employee. The case illustrates how the notion of employee in Norwegian law adapts to new ways of organising work and may be of interest in other jurisdictions.


Marianne Jenum Hotvedt
Marianne Jenum Hotvedt is a postdoctoral fellow at the Department of Private law, University in Oslo. In 2015, she got her Ph.D. on the thesis ‘The Employer Concept’.

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

ECJ 14 September 2016, case C-596/14 (De Diego Porras), Fixed-term work

Ana de Diego Porras – v – Ministerio de Defensa

Journal European Employment Law Cases, Issue 4 2016
Keywords Fixed-term work
Abstract

    Fixed-term workers must be paid the same severance compensation as comparable permanent workers.

ECJ Court Watch

ECJ 14 September 2016, case C-16/15 (Pérez López), Fixed-term work

María Elena Pérez López – v – Servicio Madrileño de Salud (Comunidad de Madrid)

Journal European Employment Law Cases, Issue 4 2016
Keywords Fixed-term work
Abstract

    Successive fixed-term contracts cannot be justified by legal provisions allowing renewal in order to ensure the provision of certain services of a temporary, auxiliary or extraordinary nature when, in reality, there is no obligation to create additional permanent posts in order to bring an end to the structural use of fixed-term work to fill permanent posts.

ECJ Court Watch

ECJ 21 September 2016, case C-614/15 (Popescu), Fixed-term employment

Rodica Popescu – v – Directia Sanitar Veterinara si pentru Siguranta Alimentelor Gorj

Journal European Employment Law Cases, Issue 4 2016
Keywords Fixed-term work
Abstract

    The fact that veterinary health inspections are non-permanent in nature does not justify successive fixed-term contracts unless the renewal of those contracts is in fact aimed at covering a specific need in the relevant sector, without the underlying reason being budgetary considerations.

ECJ Court Watch

ECJ 21 September 2016, case C-631/15 (Alvarez Santirso), Fixed-term employment

Carlos Alvarez Santirso – v – Consejería de Educación, Cultura y Deporte del Principado de Asturias

Journal European Employment Law Cases, Issue 4 2016
Keywords Fixed-term work
Abstract

    Spanish law which reserves participation in evaluation plans for teachers contravenes Directive 1999/70.

ECJ Court Watch

Case C-443/16. Fixed-term employment

Francisco Rodrigo Sanz – v – Universidad Politécnica de Madrid, reference lodged by the Spanish Juzgado de lo Contencioso-Administrativo de Madrid on 8 August 2016

Journal European Employment Law Cases, Issue 4 2016
Keywords Fixed-term work

    The Austrian Supreme Court has ruled that the general prohibition of Muslim face veils by an employer does not constitute unlawful discrimination. In this landmark decision, Austria’s Supreme Court expresses the view that an uncovered face is a prerequisite to proper communication. Thus, termination of employment by reason of an employee’s refusal to come to work unless she can wear a face veil is not unlawful under the Austrian Equal Treatment Act. Whether this rule also applies to other religious clothing such as headscarves remains to be seen.


Hans Georg Laimer
Hans Georg Laimer is a partner at zeiler.partners Rechtsanwälte GmbH.

Lukas Wieser
Lukas Wieser is an attorney at law at zeiler.partners Rechtsanwälte GmbH.
ECJ Court Watch

ECJ 14 September 2016, joined cases C-184/15 (Martínez Andrés) and C-197/15 (Castrejana López), Fixed-term work

Florentina Matínez Andrés – v – Servicio Vasco de Salud and Juan Carlos Castrejana López – v – Ayuntamiento de Vitoria

Journal European Employment Law Cases, Issue 4 2016
Keywords Fixed-term work
Abstract

    The penalty for abuse of successive fixed-term contracts must be available to all victims of such abuse, including those employed under administrative, rather than employment, law. National law may not require a victim to bring a new action before a different court in order to determine the penalty.

ECJ Court Watch

Case C-158/16. Fixed-term employment

Margarita Isabel Vega González – v – Consejería de Hacienda y Sector Público de la Administración del Principado de Asturias, reference lodged by the Spanish Juzgado Contencioso-Administrativo No 1 de Oviedo on 16 March 2016

Journal European Employment Law Cases, Issue 3 2016
Keywords Fixed-term employment
Case Reports

2016/42 Court finds fixed-term employee eligible for contract of indefinite duration (CY)

Journal European Employment Law Cases, Issue 3 2016
Keywords Dismissal, conversion fixed term contracts
Authors Michalis Hadjigiovanni
AbstractAuthor's information

    Where an employee’s working time exceeds the 30 months prescribed by law, a fixed term contract will be converted into an indefinite term contract.


Michalis Hadjigiovanni
Michalis Hadjigiovanni is a lawyer with George Z. Georgiou & Associates LLC in Nicosia, www.gzg.com.cy.

    A company had leased some employees from a temporary work agency between 2008 and 2012 to work alongside its own employees on a continuous basis. The collective bargaining agreement that the company was bound by restricted the use of temporary agency workers to situations in which the work could not be performed by the company’s own staff. The trade union brought an action before the Labour Court claiming that the company had used temporary agency workers continuously to a greater extent than permitted by the collective bargaining agreement and that the employers’ association, of which the company was a member, had breached its supervisory duty. In a preliminary ruling, the ECJ held that the Temporary Agency Work Directive (2008/104/EC) does not oblige national courts to refuse to apply national law containing prohibitions or restrictions, even if those restrictions were not justified. Having confirmed that national restrictions may be applied, the Labour Court imposed a compensatory fine of € 3,000 on the company and € 4,000 on the employers’ association.


Kaj Swanljung

Janne Nurminen
Kaj Swanljung and Janne Nurminen are, respectively, Senior Counsel and Senior Associate, with Roschier in Helsinki, www.roschier.com.

    The Danish Supreme Court has ruled that a provision in a collective agreement allowing employers to pay reduced allowances for working in the evenings, on nights and at weekends to employees under the age of 25 in full-time education and working no more than 15 hours a week was not in conflict with the Danish Anti-Discrimination Act since it was justified by a legitimate aim.


Mariann Norrbom
Mariann Norrbom is a partner of Norrbom Vinding, Copenhagen, www.norrbomvinding.com.

    An employee challenged whether her employer’s refusal to provide childcare vouchers during maternity leave was discriminatory. The Employment Appeal Tribunal (EAT) determined, somewhat tentatively, that where childcare vouchers are provided through a salary sacrifice scheme, it is not discriminatory for employers to cease to provide childcare vouchers during maternity leave.


Catherine Hayes
Catherine Hayes is an Associate at Lewis Silkin LLP: www.lewissilkin.com.
ECJ Court Watch

Case C-631/15. Fixed-term work

Carlos Alvarez Santirso – v – Consejería de Educación, Cultura y Deporte del Principado de Asturias, reference lodged by the Spanish Juzgado Contencioso-Administrativo de Oviedo on 27 November 2015

Journal European Employment Law Cases, Issue 2 2016
Keywords Fixed-term work

    In businesses employing fewer than ten employees, the rules on unfair dismissal do not apply. However, those on discrimination do. This fact made it possible for the 63 year-old employee in this case to claim damages, effectively for unfair dismissal. She had been dismissed following a reduction in the available work. She was selected for redundancy because she was less qualified than her colleagues. However, her termination letter mentioned that she had become “eligible for retirement”. This remark created a presumption of age discrimination, which the employer was not able to rebut.


Paul Schreiner

Dagmar Hellenkemper
Paul Schreiner and Dagmar Hellenkemper are lawyers with Luther Rechtsanwaltsgesellschaft mbH, www.luther-lawfirm.com.

    The Supreme Court in this case establishes conditions to be met in order for the member of a Board of Directors to qualify as a self-employed “entrepreneur”. In light of these conditions, Directors must be considered to have the status of “individual contractor”, obligating them to pay increased social security contributions.


Marcin Wujczyk Ph.D.
Marcin Wujczyk, Ph.D., is a partner with Ksiazek & Bigaj in Krakow, www.ksiazeklegal.pl.

    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.
ECJ Court Watch

Case C-614/15. Fixed Term Work

Rodica Popescu –v– Directia Sanitar Veterinara si pentru Siguranta Alimentelor Gorj, reference lodged by the Romanian Curtea de Apel Craiova

Journal European Employment Law Cases, Issue 1 2016
Keywords fixed term work
Case Reports

2016/3 Supreme Court allows transferee to differentiate between ‘own’ and acquired employees (PL)

Journal European Employment Law Cases, Issue 1 2016
Keywords Differing the monthly wages after the workplace has been moved on to another employer
Authors Ph.D Marcin Wujczyk
AbstractAuthor's information

    Paying employees acquired by way of the transfer of an undertaking less than the transferee’s original staff not discriminatory. The Supreme Court recently came to this conclusion based on a rather daring interpretation of a provision of national law aimed at transposing an EU directive. Although Polish law obligates employers to treat employees who perform the same work equally regardless of personal characteristics, the provision at issue should be read more narrowly.


Ph.D Marcin Wujczyk
Marcin Wujczyk, Ph. D., is a partner with Ksiazek & Bigaj in Krakow, www.ksiazeklegal.pl.
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