On 16 December 2020, the Supreme Court of Lithuania (Cassation Court) delivered a ruling in a case where an employee claimed that the employer, JSC ‘Lithuanian Railways’, did not apply the regulations of the company’s employer-level collective agreement and did not pay a special bonus – an anniversary benefit (i.e. a benefit paid to employees on reaching a certain age) – because the employee was not a member of the trade union which had signed the collective agreement. According to the employee, she was discriminated against because of her membership of another trade union, i.e membership of the ‘wrong’ trade union. |
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Case Reports |
2021/3 Application of a collective agreement and discrimination based on membership (non-membership) of a trade union (LT) |
Journal | European Employment Law Cases, Issue 1 2021 |
Keywords | Collective Agreements, Other Forms of Discrimination |
Authors | Vida Petrylaitė |
AbstractAuthor's information |
Case Law |
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Journal | European Employment Law Cases, Issue 1 2021 |
Authors | Ruben Houweling, Daiva Petrylaitė, Marianne Hrdlicka e.a. |
Abstract |
Various of our academic board analysed employment law cases from last year. However, first, we start with some general remarks. |
Case Reports |
2020/45 Non-Seafarers Work Clause: contributing to better employment conditions or not? (NL) |
Journal | European Employment Law Cases, Issue 4 2020 |
Keywords | Unions, Miscellaneous |
Authors | Erick Hagendoorn |
AbstractAuthor's information |
In a summary proceeding, the Court of Rotterdam has held that it is not clear whether the Non-Seafarers Work Clause, prohibiting lashing work on board of container ships being carried out by the crew, does indeed contribute to better employment and/or working conditions of seafarers. As a result of which the Clause – at this time – cannot be held to be outside the scope of competition law and the claim for compliance with the provision has been rejected. In the media, unions have stated that they will continue to enforce compliance with the Non-Seafarers Work Clause. It remains to be seen whether a court in main proceedings will reach a similar verdict. |
Article |
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Journal | European Employment Law Cases, Issue 4 2020 |
Keywords | Applicable Law, Posting of Workers |
Authors | Gautier Busschaert and Pieter Pecinovsky |
AbstractAuthor's information |
This article focuses on the posting of workers in the aviation industry. The main problem is that it is not clear in which situations the Posting of Workers Directive should be applied to aircrew (i.e. cabin crew and pilots). The aviation sector is characterised by a very mobile workforce in which it is possible for employees to provide services from different countries in a very short timeframe. This makes it, to a certain extent, easier for employers to choose the applicable social legislation, which can lead to detrimental working conditions for their aircrew. This article looks into how the Posting of Workers Directive can prevent some air carriers from unilaterally determining the applicable social legislation and makes some suggestions to end unfair social competition in the sector. This article is based on a research report which the authors drafted in 2019 with funding from the European Commission (hereafter the ‘Report’) |
Case Reports |
2020/48 Norwegian parental benefits provisions disadvantaging men found outside the scope of Equal Treatment Directive (NO) |
Journal | European Employment Law Cases, Issue 4 2020 |
Keywords | Parental Leave, Gender Discrimination |
Authors | Jonas Thorsdalen Wik and Dag Sørlie Lund |
AbstractAuthor's information |
On 13 December 2019 the European Free Trade Association (EFTA) Court held that a national provision that renders a father’s entitlement to parental benefits during a shared period of leave dependent on the mother’s situation, but not vice versa, fell outside the scope of Directive 2006/54/EC (the Equal Treatment Directive) since it did not concern “employment and working conditions” within the meaning of Article 14(1)(c) of that Directive. The action brought by the EFTA Surveillance Authority (ESA) was thus dismissed. The Court consequently did not consider whether the Norwegian rules amounted to unlawful discrimination under the Directive. Furthermore, no assessment was made as to the potential breach with the general principle of equality of gender under EEA law, as this had not been pleaded by ESA. |
Article |
2020/29 Legal status of electronic forms of employment |
Journal | European Employment Law Cases, Issue 3 2020 |
Keywords | Employment status |
Authors | Andrzej Świątkowski |
AbstractAuthor's information |
The UK Employment Tribunals and England and Wales Court of Appeal (case [2018] EWCA Civ 2748) have ruled that any Uber driver who has the Uber App switched on, is in the territory where he/she is authorised to work, and is able and willing to accept assignments, is working for Uber under a worker contract. The UK courts disregarded some of the provisions of Uber’s driver agreement. They had been entitled to do so because the relevant provisions of the driver agreement did not reflect the reality of the bargain made between the parties. The fact that Uber interviews and recruits drivers, controls the key information, requires drivers to accept trips, sets the route, fixes the fare, imposes numerous conditions on drivers, determines remuneration, amends the driver’s terms unilaterally, and handles complaints by passengers, makes it a transportation or passenger carrier, not an information and electronic technology provider. Therefore the UK courts resolved the central issue of for whom (Uber) and under a contract with whom (Uber), drivers perform their services. Uber is a modern business phenomenon. Regardless of its special position in business, Uber is obliged to follow the rules according to which work is neither a commodity nor an online technology. |
Case Reports |
2020/33 The concept of ‘maternity’ does not include, and therefore does not protect, mothers regarding discrimination related to ‘childcare’ (BE) |
Journal | European Employment Law Cases, Issue 3 2020 |
Keywords | Gender Discrimination, Other Forms of Discrimination |
Authors | Gautier Busschaert |
AbstractAuthor's information |
The Brussels Labour Court of Appeal, in a judgment of 10 September 2019, has ruled that the notion of ‘maternity’ contained in the Belgian Gender Act does not go as far as protecting mothers against discrimination with regards to childcare, since this would confirm a patriarchal role pattern. However, a recent legislative change introducing ‘paternity’ as a protected ground might cast doubt on the relevance of this ruling for the future. |
Case Law |
2020/1 EELC’s review of the year 2019 |
Journal | European Employment Law Cases, Issue 1 2020 |
Authors | Ruben Houweling, Daiva Petrylaitė, Peter Schöffmann e.a. |
Abstract |
Various of our academic board analysed employment law cases from last year. However, first, we start with some general remarks. |
Case Reports |
2020/5 An undefined number of consecutive fixed-term contracts for the duration of 12 years does not necessarily violate EU law (AT) |
Journal | European Employment Law Cases, Issue 1 2020 |
Keywords | Fixed-term work, Part-time work, Gender discrimination |
Authors | Ines Kager |
AbstractAuthor's information |
On 3 October 2019, in case C-274/18 (Schuch-Ghannadan), the ECJ held that a national regulation, which provides for different maximum total durations of successive fixed-term employment contracts for part-time workers on the one hand and full-time workers on the other, could result in a discrimination of part-time workers and an indirect discrimination of women. |
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. |
Case Reports |
2019/12 Dismissal on grounds of sickness – Discrimination on grounds of disability? (AT) |
Journal | European Employment Law Cases, Issue 2 2019 |
Keywords | Disability discrimination |
Authors | Peter C. Schöffmann |
AbstractAuthor's information |
Austrian courts have to deal with an increasing number of cases concerning dismissal on grounds of (alleged) discrimination. The particular challenge is to a draw a conclusive distinction between the concepts of disability and sickness. |
Law Review |
2019/1 EELC’s review of the year 2018 |
Journal | European Employment Law Cases, Issue 1 2019 |
Authors | Ruben Houweling, Catherine Barnard, Filip Dorssemont e.a. |
Abstract |
For the second time, various of our academic board analysed employment law cases from last year. However, first, we start with some general remarks. |
Case Reports |
2018/22 What is a collective agreement? Part two (DK) |
Journal | European Employment Law Cases, Issue 3 2018 |
Keywords | Collective agreements |
Authors | Christian K. Clasen |
AbstractAuthor's information |
The Danish Supreme Court has upheld the decision from the Danish Eastern High Court (reported in EELC 2017/26) on the implementation of the Working Time Directive to the effect that an ‘intervention act’ can be deemed to be a collective agreement within the meaning of Article 18 of the Working Time Directive. |
Law Review |
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Journal | European Employment Law Cases, Issue 1 2018 |
Authors | Ruben Houweling, Catherine Barnard, Zef Even e.a. |
Abstract |
This is the first time we have produced a review of employment law cases from the previous year, based on analysis by various of our academic board members. But before looking at their findings, we would first like to make some general remarks. |
ECJ Court Watch |
ECJ 5 July 2017, case C-190/16 (Fries), Age discriminationWerner Fries – v – Lufthansa CityLine GmbH, German case |
Journal | European Employment Law Cases, Issue 1 2018 |
Keywords | Age discrimination |
Abstract |
The non-discrimination principle and the freedom of occupation, as provided for in the Charter of Fundamental Rights of the European Union, do not prevent the EU from setting an age limit for pilots involved in commercial air transport, provided that this is done in accordance with Article 52(1) of the Charter. |
ECJ Court Watch |
ECJ 14 September 2017, case C-168/16 and C-169/16 (Ryanair), Private international lawSandra Nogueira and Others – v – Crewlink Ireland Ltd and Miguel José Moreno Osacar – v – Ryanair Designated Activity Company |
Journal | European Employment Law Cases, Issue 4 2017 |
Keywords | Private international law |
Abstract |
When determining the place from which airline cabin crewmembers habitually carry out their work, the concept of ‘home base’ is a significant indicator. |
Case Reports |
2017/52 Greek austerity bills do not apply to Greek citizens employed in Germany (GE) |
Journal | European Employment Law Cases, Issue 4 2017 |
Keywords | Fundamental rights |
Authors | Othmar K. Traber |
AbstractAuthor's information |
The highest administrative court in the Netherlands has delivered a razor-sharp ruling on the intra-community service provision set out in Articles 56 and 57 of the Treaty on the Functioning of the European Union). This concerns ‘new’ EU-nationals who are still under transitional measures with regard to access to the labour markets of ‘old’ EU Member States. The judgment was preceded by a request from the Chairman to a State Councillor Advocate General to deliver his opinion on various aspects of punitive administrative law practice in the Netherlands. Both the opinion and the judgment are a welcome clarification and addition (or even correction) on the practice. |
Case Reports |
2017/29 Policy requiring employees to speak English at work justifiable (IR) |
Journal | European Employment Law Cases, Issue 3 2017 |
Keywords | Nationality discrimination |
Authors | Orla O’Leary |
AbstractAuthor's information |
A recent decision by the Labour Court found that a policy requiring employees to speak English in the workplace constituted discrimination on grounds of national origin but was objectively justifiable. |
ECJ Court Watch |
ECJ 26 July 2017, case C-175/16 (Hälvä), Working timeHannele Hälvä and Others – v – SOS-Lapsikylä ry, Finish case |
Journal | European Employment Law Cases, Issue 3 2017 |
Keywords | Working time |
Abstract |
Relief workers who look after children in a family environment for SOS-Lapsikyläry, so relieving the children’s foster carers, do not fall within the scope of the exception provided for in Article 17(1) of the Working Time Directive. |
Case Reports |
2017/36 A Dutch insight into the applicability of the Posted Workers Directive on international road transport. But still: a long and winding road ahead? (NL) |
Journal | European Employment Law Cases, Issue 3 2017 |
Keywords | Private International Law |
Authors | Zef Even and Amber Zwanenburg |
AbstractAuthor's information |
In an international road transport case the Dutch Appellate Court held that working from a given place is not relevant when applying the Posted Workers Directive. |