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Case Law

Access_open 2021/1 EELC’s review of the year 2020

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.


Ruben Houweling

Daiva Petrylaitė

Marianne Hrdlicka

Attila Kun

Luca Calcaterra

Francesca Maffei

Jean-Philippe Lhernould

Niklas Bruun

Jan-Pieter Vos

Luca Ratti

Andrej Poruban

Anthony Kerr

Filip Dorssemont
Pending Cases

Case C-634/20, Work and Residence Permit

A – v – Sosiaali- ja terveysalan lupa- ja valvontavirasto, reference lodged by the Korkein hallinto-oikeus (Finland) on 25 November 2020

Journal European Employment Law Cases, Issue 1 2021
Keywords Work and Residence Permit

    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.


Andrzej Świątkowski
Andrzej Marian Świątkowski is a professor at Jesuit University Ignatianum in Krakow. ((ORCID: 0000-0003-1753-7810))

Rulings

ECJ 21 November 2019, joined cases C-203/18 and C-374/18, Working time, Miscellaneous

Deutsche Post AG, Klaus Leymann – v – Land Nordrhein-Westfalen; UPS Deutschland Inc. & Co. OHG, DPD Dynamic Parcel Distribution GmbH & Co. KG, Bundesverband Paket & Expresslogistik eV – v – Deutsche Post AG, German cases

Journal European Employment Law Cases, Issue 4 2019
Keywords Working time, Miscellaneous
Abstract

    The Polish Supreme Court has held that a criterion of discrimination may also be a relationship of a social or familial nature that exists in the workplace and whose existence or absence on the part of the employee results in different treatment by the employer.


Marcin Wujczyk
Marcin Wujczyk is an attorney at law at Wardyński & Partners, Poland (https://www.wardynski.com.pl).
Rulings

ECJ 11 April 2019, joined cases C-29/18, C-30/18 and C-44/18 (Cobra Servicios Auxiliares), fixed-term work

Cobra Servicios Auxiliares, S.A. – v – José David Sánchez Iglesias, José Ramón Fiuza Asorey, Jesús Valiño López, Fogasa, Incatema, S.L., Spanish case

Journal European Employment Law Cases, Issue 2 2019
Keywords fixed-term work
Abstract

    It is objectively justified to grant fixed-term workers a lower severance payment than indefinite term workers, if the payment has other aims and is paid in a different context.

Rulings

ECJ 6 December 2018, case C-675/17 (Preindl), Free movement, Other forms of free movement

Ministero della Salute – v – Hannes Preindl, Italian case

Journal European Employment Law Cases, Issue 1 2019
Keywords Free movement, Other forms of free movement
Abstract

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.


Ruben Houweling

Catherine Barnard

Filip Dorssemont

Jean-Philippe Lhernould

Francesca Maffei

Niklas Bruun

Anthony Kerr

Jan-Pieter Vos

Luca Ratti

Daiva Petrylaite

Andrej Poruban

Stein Evju
Rulings

ECJ 20 September 2018, case C-466/17 (Motter), Fixed-term work, other forms of discrimination

Chiara 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.

Rulings

ECJ 5 June 2018, C-574/16 (Grupo Norte), Fixed-term work

Grupo Norte Facility SA – v – Angel Manuel Moreira Gómez, Spanish case

Journal European Employment Law Cases, Issue 2 2018
Keywords Fixed-term work
Abstract

    Differences in compensation at the end of employment between fixed-term and permanent workers is found non-discriminatory, as the different types of compensation meet different objectives.

Rulings

ECJ 5 June 2018, C-677/16 (Montero Mateos), Fixed-term work

Lucía Montero Mateos – v – Agencia Madrileña de Atención Social de la Consejería de Políticas Sociales y Familia de la Comunidad Autónoma de Madrid, Spanish case

Journal European Employment Law Cases, Issue 2 2018
Keywords Fixed-term work
Abstract

    Not granting compensation to fixed-term workers at the end of employment is not discriminatory as the end of the contract is foreseeable from the start, whereas the main objective of compensation for objective reasons, which generally applies to permanent workers, is to recompense them for the fact that termination of the contract is not knowable in advance.

ECJ Court Watch

ECJ 20 December 2017, case C-158/16 (Vega González), Fixed-term work, Other forms of discrimination

Margarita Isabel Vega González – v – Consejería de Hacienda y Sector Público del Gobierno del Principado de Asturias, Spanish case

Journal European Employment Law Cases, Issue 1 2018
Keywords Fixed-term work, Other forms of discrimination
Abstract

    A fixed-term worker elected to a parliamentary role must be able to benefit from the same special leave granted to a permanent civil servant, to enable them to hold a public office.

Case Reports

2017/31 Lawful positive discrimination in favour of women (FR)

Journal European Employment Law Cases, Issue 3 2017
Keywords Discrimination (other), Positive discrimination
Authors Claire Toumieux and Susan Ekrami
AbstractAuthor's information

    Company agreement provisions granting a half-day of leave to female employees on International Women’s Day constitute lawful positive discrimination in favour of women.


Claire Toumieux
Claire Toumieux is a partner with Allen & Overy LLP in Paris (www.allenovery.com).

Susan Ekrami
Susan Ekrami is a senior associate with Allen & Overy LLP in Paris (www.allenovery.com).
Case Reports

2017/1 Early retirement pension cannot justify age discrimination (AU)

Journal European Employment Law Cases, Issue 1 2017
Keywords Age discrimination
Authors Peter C. Schöffmann and Andreas Tinhofer
AbstractAuthor's information

    The Austrian Supreme Court has held that the selection of employees for redundancy because of their entitlement to an early retirement pension constitutes unfair dismissal on grounds of direct age discrimination. Although it was accepted that individual employers (here the Austrian Broadcasting Corporation) can pursue a legitimate aim within the meaning of Article 6(1) of Directive 2000/78/EC, the means to achieve that aim were not considered appropriate and necessary. The Court stressed that a balance must be struck between the interests of older and younger employees, taking into account that it is generally easier for younger employees to find a new job. In the case at hand, however, the employer had not managed to show that its redundancy selection programme met that requirement.


Peter C. Schöffmann
Peter C. Schöffmann and Andreas Tinhofer are respectively an associate and partner at MOSATI Rechtsanwälte, www.mosati.at.

Andreas Tinhofer
Peter C. Schöffmann and Andreas Tinhofer are respectively an associate and partner at MOSATI Rechtsanwälte, www.mosati.at.
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 17 November 2016, case C-216/15 (Ruhrlandklinik), Temporary agency work

Betriebsrat der Ruhrlandklinik gGmbH – v – Ruhrlandklinik gGmbH

Journal European Employment Law Cases, Issue 4 2016
Keywords Temporary agency work
Abstract

    The definition of ‘worker’ in Directive 2008/104 on temporary agency work includes those who are similar to employees, without having employee status under domestic law.

    The Employment Appeal Tribunal (‘EAT’) has upheld an Employment Tribunal’s (‘ET’s’) finding that Article 8 of the European Convention on Human Rights (‘ECHR’) was not engaged when an employer used private material obtained by the police during a criminal investigation as part of an internal disciplinary investigation into one of its employees. This material had been taken from the claimant’s phone by the police, who then provided it to the employer (stating that it could be used for the purposes of their investigation). The facts in this case were unusual. Whether or not an employee has a reasonable expectation of privacy in similar circumstances will depend on all the facts, including the source of the information, whether the employee has expressly objected to its use, and whether the relevant conduct took place in, or was brought into, the workplace.


Anna Bond
Anna Bond is an associate at Lewis Silkin LLP: www.lewissilkin.com.
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