This was a case alleging detrimental treatment for whistleblowing brought by an employee working outside the UK against two co-workers also working abroad in the same location. The Court of Appeal (CA) ruled that there was no jurisdiction for the Employment Tribunal (ET) to hear the claim in relation to personal liability of the co-workers because they were outside the scope of UK employment law. The CA’s judgment potentially has implications for other types of claim brought by UK employees posted abroad where similar personal liability provisions apply, such as discrimination and harassment. |
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Case Reports |
2019/38 Liability of overseas co-workers for whistleblowing detriment (UK) |
Journal | European Employment Law Cases, Issue 3 2019 |
Keywords | Miscellaneous |
Authors | Richard Lister |
AbstractAuthor's information |
Pending Cases |
Case C-314/19, Transfer of undertakingsR.C.C. – v – M.O.L., reference lodged by the Tribunal Superior de Justicia de Castilla-La Mancha (Spain) on 16 April 2019 |
Journal | European Employment Law Cases, Issue 3 2019 |
Keywords | Transfer of undertakings |
Abstract |
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Pending Cases |
Case C-310/19 (P), MiscellaneousBoudewijn Schokker – v – European Aviation Safety Agency (EASA), Appeal against the order of the General Court (Eighth Chamber) on 8 February 2019 in Case T-817/17 |
Journal | European Employment Law Cases, Issue 3 2019 |
Keywords | Miscellaneous |
Abstract |
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Case Reports |
2019/35 Repairing past mistakes in holiday pay: two cases, two different outcomes (NL) |
Journal | European Employment Law Cases, Issue 3 2019 |
Keywords | Paid Leave |
Authors | Jan-Pieter Vos |
AbstractAuthor's information |
A number of collective labour agreements unjustifiably have excluded allowances from holiday pay. Recently, social partners have had difficulties in repairing these flaws. Two recent cases demonstrate this, both similar claims but with different outcomes. This leaves social partners with the problem of how to proceed. |
Case Reports |
2019/31 Failing to enhance pay for shared parental leave to the level of maternity pay is not sex discrimination (UK) |
Journal | European Employment Law Cases, Issue 3 2019 |
Keywords | Sex Discrimination |
Authors | Richard Lister |
AbstractAuthor's information |
In two appeal cases considered jointly, the Court of Appeal (CA) has ruled that it is not direct or indirect sex discrimination, nor a breach of equal pay rights, to provide enhanced pay for maternity leave and statutory pay only for shared parental leave (SPL). |
Case Reports |
2019/30 The religious ethos and differences of treatment in employment on grounds of belief (EU) |
Journal | European Employment Law Cases, Issue 3 2019 |
Keywords | Religious discrimination |
Authors | Andrzej Marian Świątkowski |
AbstractAuthor's information |
The author discusses the recent ECJ judgments in the cases Egenberger and IR on religious discrimination. |
Case Reports |
2019/34 Reduction of annual leave during parental leave is lawful (GE) |
Journal | European Employment Law Cases, Issue 3 2019 |
Keywords | Maternity and parental leave |
Authors | Nina Stephan and David Meyer |
AbstractAuthor's information |
The Higher Labour Court of Berlin-Brandenburg (Landesarbeitsgericht (LAG)) has held that the pro rata reduction of annual leave depending on the period of parental leave is lawful. In general, statutory holiday entitlement also exists for the period of parental leave. However, the employer has the right to reduce leave pro rata for each full month of parental leave according to Section 17 paragraph 1 sentence 1 of the Federal Parental Allowances and Parental Leave Act (Bundeselterngeld- und Elternzeitgesetz (BEEG)). The proportional reduction is in line with European law. |
Case Reports |
2019/36 Are professional foster parents excluded from the right to request payment in lieu of untaken annual leave? (RO) |
Journal | European Employment Law Cases, Issue 3 2019 |
Keywords | Paid Leave |
Authors | Andreea Suciu and Gabriela Ion |
AbstractAuthor's information |
The decision pronounced by the first instance court related to the right of professional foster parents to request payment in lieu of untaken annual leave based on ECJ case law has been overruled by the Court of Appeal by making reference to a different ECJ ruling. |
Case Reports |
2019/37 The non-competition duties of a dismissed employee exempted from work during the notice period (LU) |
Journal | European Employment Law Cases, Issue 3 2019 |
Keywords | Miscellaneous |
Authors | Michel Molitor and Régis Muller |
AbstractAuthor's information |
The Luxembourg Court of Appeal (Cour d’appel de Luxembourg) confirmed that an employee dismissed with notice and exempted from performing their work during the notice period is no longer bound by the non-competition duties arising from their loyalty obligation and can therefore engage in an employment contract with a direct competitor of their former employer during that exempted notice period. However, the Court of Appeal decided that, even if the former employee is in principle entitled to use the know-how and knowledge they acquired with their former employer, the poaching of clients during the notice period must, due to the facts and circumstances and in the light of the rules applicable in the financial sector, be considered as an unfair competition act and therefore constitutes serious misconduct justifying the termination of the employment contract with immediate effect. |
Pending Cases |
Case C-326/19, Fixed-term workEB – v – Presidenza del Consiglio dei Ministri and Others, reference lodged by the Tribunale Amministrativo Regionale per il Lazio (Italy) on 23 April 2019 |
Journal | European Employment Law Cases, Issue 3 2019 |
Keywords | Fixed-term work |
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Case Reports |
2019/27 No additional public holiday pay for working on Good Friday – Discrimination based on religion? (AT) |
Journal | European Employment Law Cases, Issue 3 2019 |
Keywords | Religious discrimination |
Authors | Dr. Jana Eichmeyer LL.M and Dr. Karolin Andréewitch |
AbstractAuthor's information |
Under a former Austrian law effective until February 2019, Good Friday was a public holiday only for a minority belonging to certain Christian Evangelical churches. In the case at hand, Austrian courts had to assess if this regulation and its legal consequences were valid under European Union law, or if they constituted discrimination. |
Case Reports |
2019/28 An employer may impose a ban on the wearing of any visible sign of political, philosophical or religious beliefs on employees in contact with customers (FR) |
Journal | European Employment Law Cases, Issue 3 2019 |
Keywords | Religious discrimination |
Authors | Claire Toumieux and Thomas Robert |
AbstractAuthor's information |
Both the French Supreme Court and the Versailles Court of Appeal held that an employer, who must ensure that liberties and fundamental rights of each employee are respected in the working community, may lawfully prohibit the wearing of any visible sign of political, philosophical or religious beliefs in the workplace, provided that the rule contained in the company rules and regulations applies without distinction to employees in direct contact with the customers of the company only. But in the absence of such rules, sanctioning an employee who refuses to remove her Islamic veil based on the wish of a customer, which does not qualify as a genuine and determining occupational requirement, amounts to an unlawful direct discrimination and should consequently be held null and void. |
Case Reports |
2019/25 Dismissal of an employee with a reduced-hours job who reached the statutory retirement age did not constitute unlawful discrimination (DK) |
Journal | European Employment Law Cases, Issue 3 2019 |
Keywords | Age discrimination |
Authors | Christian K. Clasen |
AbstractAuthor's information |
In a recent judgment, the Danish Supreme Court has established that it does not constitute unlawful discrimination under the Anti-Discrimination Act when a disabled employee is dismissed. The employee had a publicly funded reduced-hours job, but reached the statutory retirement age for which reason the public funding lapsed, and that was the reason for the dismissal. |
Pending Cases |
Case C-537/18, Age Discrimination, General DiscriminationYV – v – Krajowa Rada Sądownictwa, reference lodged by the Sąd Najwyższy (Poland) on 17 August 2018 |
Journal | European Employment Law Cases, Issue 2 2019 |
Case Reports |
2019/20 How to interpret the Posting of Workers Directive in the cross-border road transport sector? Dutch Supreme Court asks the ECJ for guidance (NL) |
Journal | European Employment Law Cases, Issue 2 2019 |
Keywords | Private International Law, Posting of Workers and Expatriates, Applicable Law |
Authors | Zef Even and Amber Zwanenburg |
AbstractAuthor's information |
In this transnational road transport case, the Dutch Supreme Court had to elaborate on the ECJ Koelzsch and Schlecker cases and asks for guidance from the ECJ on the applicability and interpretation of the Posting of Workers Directive. |
Pending Cases |
Case C-668/18, Age Discrimination, MiscellaneousBP – v – UNIPARTS sàrl, reference lodged by the Sąd Najwyższy (Poland) on 26 October 2018 |
Journal | European Employment Law Cases, Issue 2 2019 |
Case Reports |
2019/19 Employer liable for wrongful disclosure of data by ‘rogue’ employee (UK) |
Journal | European Employment Law Cases, Issue 2 2019 |
Keywords | Privacy |
Authors | Sean Illing |
AbstractAuthor's information |
The German Federal Labour Court (Bundesarbeitsgericht, the ‘BAG’) has held that pre-employment as a freelancer must be taken into account in relation to the number of years having been with a firm as a freelancer when assessing the legality of a fixed-term contract due to the character of the specific deployment. |
Case Reports |
2019/18 Consideration of pre-employment as a freelancer in terms of checking fixed-term contracts by courts (GE) |
Journal | European Employment Law Cases, Issue 2 2019 |
Keywords | Fixed-Term Work |
Authors | Othmar Traber and Daniel Hilmer |
AbstractAuthor's information |
The German Federal Labour Court (Bundesarbeitsgericht, the ‘BAG’) has held that pre-employment as a freelancer must be taken into account in relation to the number of years having been with a firm as a freelancer when assessing the legality of a fixed-term contract due to the character of the specific deployment. |
Pending Cases |
Case C-177/18, Fixed-Term WorkAlmudena Baldonedo Martín – v – Almudena Baldonedo Martín, reference lodged by the Juzgado de lo Contencioso-Administrativo de Madrid (Spain) on 7 March 2018 |
Journal | European Employment Law Cases, Issue 2 2019 |
Case Reports |
2019/15 Uniform minimum body height standards in the police service do not constitute indirect gender discrimination on grounds of sex (DE) |
Journal | European Employment Law Cases, Issue 2 2019 |
Keywords | Gender discrimination |
Authors | Paul Schreiner and Nina Stephan |
AbstractAuthor's information |
The Higher Administrative Court of Münster (Oberverwaltungsgericht, the ‘OVG’) has held that a minimum body height of 163 cm for applicants to the police service, irrespective of gender, is lawful. At least, this shall apply if the determination of a minimum body height standard is a suitability criterion for access to the police service. Minimum standards solely serve the purpose of ensuring fitness for service and result from a comprehensive investigation. The investigation in this case established that suitability for the police service can only be guaranteed from a height of 163 cm upwards. |