According to German law, every employee is entitled to paid annual leave. The amount of pay is generally calculated based on the current salary (known as the “principle of loss of pay”) but a reduction of working hours during the year does not lead to a reduction of entitlement to holiday pay for previously acquired holiday entitlements. If the entitlement was already acquired before the reduction of working time (which can happen because in Germany holiday entitlement is acquired at the beginning of the calendar year), pay during leave will be based on the salary agreed between the employer and employee when the holiday entitlement was acquired and thus, based on the ‘old’ salary. |
Pending cases |
Case C-274/18, Gender discrimination, Fixed-term workMinoo Schuch-Ghannadan – v – Medizinische Universität Wien, reference lodged by the Arbeits- und Sozialgericht Wien (Austria) on 23 April 2018 |
Journal | European Employment Law Cases, Issue 4 2018 |
Case Reports |
EELC 2018/42 No reduction of vacation pay for already accrued vacation entitlement in the case of a reduction of weekly working hours later on (GE) |
Journal | European Employment Law Cases, Issue 4 2018 |
Keywords | Paid leave |
Authors | Nina Stephan and Paul Schreiner |
AbstractAuthor's information |
Editorial |
A Christmas Carol |
Journal | European Employment Law Cases, Issue 4 2018 |
Authors | Zef Even |
Case Reports |
EELC 2018/35 Employees who lose their jobs upon retirement are not entitled to statutory severance compensation (NL) |
Journal | European Employment Law Cases, Issue 4 2018 |
Keywords | Age discrimination |
Authors | Peter C. Vas Nunes |
AbstractAuthor's information |
A provision of Dutch law, according to which employees who lose their jobs upon retirement are excluded from the right to statutory severance compensation, is not in breach of the Framework Directive. |
Pending cases |
Case C-429/18, Fixed-term workBerta Fernández Álvarez, BMM, TGV, Natalia Fernández Olmos, María Claudia Téllez Barragán – v – Consejería de Sanidad de la Comunidad de Madrid, reference lodged by the Juzgado de lo Contencioso-Administrativo de Madrid (Spain) on 28 June 2018 |
Journal | European Employment Law Cases, Issue 4 2018 |
Case Reports |
EELC 2018/39 Supreme Court decision on part-time work and fixed-term employment (DK) |
Journal | European Employment Law Cases, Issue 4 2018 |
Keywords | Part-time work, Fixed-term work |
Authors | Christian K. Clasen |
AbstractAuthor's information |
The Danish Supreme Court has held there was no discrimination against four part-time teachers at a university in that they did not receive pension contributions. Their positions could not be compared to those of full-time teachers, who were entitled to pension contributions. However, it did constitute a violation of the Danish rules on fixed-term work that the teachers had, for a number of years, been employed on several fixed-term contracts, as they had, in effect, been continuously employed in the same position. Consequently, the teachers were awarded compensation. |
Pending cases |
Case C-72/18, Fixed-term workDaniel Ustariz Aróstegui – v – Consejería de Educación del Gobierno de Navarra, reference lodged by the Juzgado de lo Contencioso-Administrativo No 1 de Pamplona (Spain) on 5 February 2018 |
Journal | European Employment Law Cases, Issue 4 2018 |
Rulings |
ECJ 21 November 2018, case C-245/17 (Viejobueno Ibáñez and De la Vara González), Fixed-term work, Paid leavePedro Viejobueno Ibáñez, Emilia de la Vara González – v – Consejería de Educación de Castilla-La Mancha, Spanish case |
Journal | European Employment Law Cases, Issue 4 2018 |
Keywords | Fixed-term work, Paid leave |
Abstract |
The sole fact that fixed-term employment relationships terminate, whereas permanent relationships do not, does not constitute discrimination. Nevertheless, fixed-term teachers should receive an allowance in lieu of untaken leave. |
Rulings |
ECJ 25 October 2018, case C-331/17 (Sciotto), Fixed-term workMartina Sciotto – v – Fondazione Teatro dell’Opera di Roma, Italian case |
Journal | European Employment Law Cases, Issue 4 2018 |
Keywords | Fixed-term work |
Abstract |
The Framework Agreement to protect the misuse of successive fixed-term employment contracts or relationships precludes legislation, which disapplies rules aimed against such misuse, when there is no other effective penalty. |
Pending cases |
Case C-44/18, Fixed-term workCobra Servicios Auxiliares, S.A. – v – FOGASA, Jesus Valiño Lopez en Incatema, S.L., reference lodged by the Tribunal Superior de Justicia de Galicia (Spain) on 24 January 2018 |
Journal | European Employment Law Cases, Issue 4 2018 |
Case Reports |
EELC 2018/37 Supreme Court rules on discrimination for being overweight (FI) |
Journal | European Employment Law Cases, Issue 4 2018 |
Keywords | Disability discrimination |
Authors | Janne Nurminen |
AbstractAuthor's information |
The Finnish Supreme Court has held that an employer discriminated against an employee by not renewing his employment at the end of a fixed-term contract because he was overweight. |
Case Reports |
EELC 2018/44 Travelling time from home to customers is working time in the absence of a fixed work place (BE) |
Journal | European Employment Law Cases, Issue 4 2018 |
Keywords | Working time |
Authors | Dr. Pieter Pecinovsky |
AbstractAuthor's information |
For workers without a fixed workplace, travelling time between their place of residence and the first customer and travelling time between the last customer and the place of residence constitutes working time. |
Case Reports |
EELC 2018/45 The limits to checking emails out of business hours (IR) |
Journal | European Employment Law Cases, Issue 4 2018 |
Keywords | Working time |
Authors | Lucy O’Neill |
AbstractAuthor's information |
In a recent decision, the Labour Court awarded an employee € 7,500 for working in excess of 48 hours a week, contrary to working time legislation. The complainant allegedly regularly checked and responded to emails outside of business hours, occasionally after midnight. The Labour Court reiterated it is the employer’s responsibility to ensure that employees are not permitted to work beyond the statutory maximum period and that if an employer is aware that an employee is working excessive hours, must take steps to curtail this. |
Pending cases |
Case C-103/18, Fixed-term workDomingo Sánchez Ruiz – v – Comunidad de Madrid (Servicio Madrileño de Salud), reference lodged by the Juzgado de lo Contencioso-Administrativo No 8 de Madrid (Spain) on 13 February 2018 |
Journal | European Employment Law Cases, Issue 4 2018 |
Pending cases |
Case C-293/18, Fixed-term workSindicato Nacional de CCOO de Galicia – v – Unión General de Trabajadores de Galicia (UGT), Universidad de Santiago de Compostela, Confederación Intersindical Gallega, reference lodged by the Tribunal Superior de Justicia de Galicia (Spain) on 26 April 2018 |
Journal | European Employment Law Cases, Issue 4 2018 |
Case Reports |
2018/32 When is travelling time working time? (NO) |
Journal | European Employment Law Cases, Issue 3 2018 |
Keywords | Working time |
Authors | Marianne Jenum Hotvedt and Anne-Beth Engan |
AbstractAuthor's information |
The Norwegian Supreme Court concludes that time spent on a journey ordered by the employer, to and from a place other than the employee’s fixed or habitual place of work, should be considered working time within the meaning of the statutory provisions implementing the Working Time Directive (2003/88/EC). This ruling takes into account the Advisory Opinion of the EFTA Court. |
Rulings |
ECJ 20 September 2018, case C-466/17 (Motter), Fixed-term work, other forms of discriminationChiara Motter – v – Provincia autonoma di Trento, Italian case |
Journal | European Employment Law Cases, Issue 3 2018 |
Keywords | Fixed-term work, Other forms of discrimination |
Abstract |
A system, as exists in Italy, that only-partially counts service under fixed-term contracts for the purpose of classifying staff in grades, is compatible with the Framework Agreement on fixed-term work, as there was an objective justification. |
Case Reports |
2018/33 Availability periods: working hours or rest periods? (PO) |
Journal | European Employment Law Cases, Issue 3 2018 |
Keywords | Working time |
Authors | Dora Joana |
AbstractAuthor's information |
The Oporto Court of Appeal held that the employee’s availability 24 hours per day, 6 days per week, breaches the employee’s right to rest. However, such breach does not qualify the availability periods as overtime. The Court also found that the continuous use of a GPS system breached the employee’s right to privacy. |
Editorial |
Welcome EELA Members |
Journal | European Employment Law Cases, Issue 3 2018 |
Case Reports |
2018/30 Harmonising terms of employment following a transfer is no simple matter (NL) |
Journal | European Employment Law Cases, Issue 3 2018 |
Keywords | Transfer, Employment terms |
Authors | Shamy Sripal |
AbstractAuthor's information |
The transferee in this case attempted to replace the transferred employees’ salaries with lower in accordance with its collective agreement, compensating for the reduction by means of a ‘personal allowance’, which it then proceeded to reduce by a set percentage based on the age of the employees each time there was a wage increase. The court held that this ‘basket comparison’ method of harmonising the wages of old and new staff was at odds with Directive 2001/23, rejecting the transferee’s argument that the ‘ETO’ provision in that directive permits such an amendment of the terms of employment. |