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Pending Cases

Case C-311/21, Temporary Agency Work

CM – v – TimePartner Personalmanagement GmbH, reference lodged by the Bundesarbeitsgericht (Germany) on 18 May 2021

Journal European Employment Law Cases, Issue 3 2021
Keywords Temporary Agency Work
Rulings

EFTA 15 July 2021, case E-11/20 (Eyjólfur Orri Sverrisson v The Icelandic State), Working Time

Eyjólfur Orri Sverrisson – v – The Islandic State, Islandic Case

Journal European Employment Law Cases, Issue 3 2021
Keywords Working Time
Abstract

    Necessary travel time outside working hours constitutes working time.

Case Reports

2021/32 Grand Chamber confirms no double punishment for illegal employment (SK)

Journal European Employment Law Cases, Issue 3 2021
Keywords Other Fundamental Rights
Authors Dušan Nitschneider and Danica Valentová
AbstractAuthor's information

    The Grand Chamber of the Slovakian Supreme Court has unanimously decided that employers cannot be penalised by two different agencies for one violation of employment law rules and that the ne bis in idem principle also applies to two administrative breaches of the law.


Dušan Nitschneider
Dušan Nitschneider is a partner at Nitschneider & Partners.

Danica Valentová
Danica Valentová is a senior associate at Nitschneider & Partners.

Zef Even

    Ryanair and Crewlink have finally been found in violation of Belgian mandatory provisions following the ruling of the ECJ in cases C-168/16 and C-169/16 (Nogueira and Others) and ordered to pay certain amounts to the employees involved by virtue of Belgian mandatory provisions. Yet, this trade union victory has a bitter taste for those employees, who were refused their main claim, i.e. to be paid normal remuneration for on-call time at the airport.


Gautier Busschaert
Gautier Busschaert is an Attorney at Van Olmen & Wynant.
Pending Cases

Case C-477/21, Working Time

IH – v – MÁV-START Vasúti Személyszállító Zrt., reference lodged by the Miskolci Törvényszék (Hungary) on 3 August 2021

Journal European Employment Law Cases, Issue 3 2021
Keywords Working Time
Rulings

ECJ 28 October 2021, case C-909/19 (Unitatea Administrativ Teritorială D.), Working Time

BX – v – Unitatea Administrativ Teritorială D., Romanian case

Journal European Employment Law Cases, Issue 3 2021
Keywords Working Time
Abstract

    Vocational training is working time.

    The Craiova Court of Appeal has ruled that a trade union that organized an illegal strike was civilly liable for the entire prejudice caused to the employer due to the interruption of its business activity. The compensation will be calculated based on the damage incurred by the employer, regardless of whether the strike took place for only two hours, as in the case at hand, if the activity of the unit was disrupted for a longer period of time due to such strike action.


Andreea Suciu
Andreea Suciu is Managing Partner of Suciu | The Employment Law Firm.

Andreea Oprea
Andreea Oprea is an Associate at Suciu | The Employment Law Firm.

    The UK’s Supreme Court (SC) has ruled that retail staff of the supermarket chain Asda can compare themselves under UK law to higher-paid distribution depot staff for the purposes of an equal pay claim. In a separate case against Tesco, the ECJ subsequently confirmed that the company’s shop workers can rely directly on EU law to compare themselves to distribution centre workers for the purposes of such a claim.


Carolyn Soakell
Carolyn Soakell is a partner at Lewis Silkin LLP.
Rulings

ECJ 15 July 2021, case C-742/19 (Ministrstvo za obrambo), Working Time

BK – v – Republika Slovenija (Ministrstvo za obrambo), Slovenian case

Journal European Employment Law Cases, Issue 3 2021
Keywords Working Time
Abstract

    In a limited number of security activities, military personnel are excluded from the scope of the Working Time Directive. The Directive does not prohibit stand-by periods and actual work to be remunerated differently.

    In a decision of 16 June 2021 (6 AZR 390/20 (A)), the German Federal Labour Court (Bundesarbeitsgericht, ‘BAG’) referred a question to the ECJ for a preliminary ruling that has been a controversial issue in Germany for some time. The question is whether the possibility of a permanent supply of temporary workers, which is referred to as ‘personnel supply’ (Personalgestellung) in the context of the collective agreement for the public sector, and the exemption from the scope of the German Temporary Employment Act (Arbeitnehmerüberlassungsgesetz, ‘AÜG’) pursuant to Section 1(3) No. 2b AÜG, which allows this provision in the collective agreement, violates the provisions of Directive 2008/104/EC on temporary agency work (the ‘Temporary Agency Work Directive’). Depending on the outcome of the ECJ’s decision, this could have a significant impact on staff leasing often practised in companies operating in the public sector.


Othmar K Traber
Othmar K. Traber is an attorney-at-law and a partner at Ahlers & Vogel Rechtsanwälte PartG mbB.
Rulings

ECJ 9 September 2021, case C-107/19 (Dopravní podnik hl. m. Prahy), Working Time

XR – v – Dopravní podnik hl. m. Prahy, akciová společnost, Czech case

Journal European Employment Law Cases, Issue 3 2021
Keywords Working Time
Abstract

    A stand-by shift with a required response within two minutes makes a break qualify as working time.

    In its decision rendered on 28 February 2019, the Luxembourg Court of Appeal (Cour d’appel de Luxembourg) examined under which circumstances on-call duty performed at the workplace qualifies as actual working time.
    The issue raised was whether the time spent at night by an employee (i.e. the presence of an employee at the workplace) performing the work of a live-in carer was to be considered as ‘actual working time’.
    The Court expressly referred to EU case law and decided that the concept of actual working time is defined by two criteria, namely (i) whether the employee during such a period must be at the employer’s disposal, and (ii) the interference with the employee’s freedom to choose their activities.
    In view of the working hours provided for in the employment contract and in the absence of evidence proving that the employee would not have been at the employer’s home during her working hours, the Court found that the employee stayed at the employer’s home at night and at the employer’s request. It was irrelevant in this respect whether it was for convenience or not. It was further established that the employee could not leave during the night and return to her home and go about her personal business, so that the hours she worked at night were to be considered as actual working time.
    Given that the employee’s objections regarding her salary were justified (as the conditions of her remuneration violated statutory provisions), the Court decided that the dismissal was unfair.


Michel Molitor
Michel Molitor is the managing partner of MOLITOR Avocats à la Cour SARL in Luxembourg, www.molitorlegal.lu.

    The Supreme Court (SC) has unanimously decided that drivers engaged by Uber are workers rather than independent contractors. It also decided that drivers are working when they are signed in to the Uber app and ready to work.


Colin Leckey
Colin Leckey is a partner at Lewis Silkin LLP.

    On 22 May 2020, fifty-two members of the Hungarian parliament petitioned the Constitutional Court which was requested to establish the unconstitutionality of Section 6(4) of Government Decree no. 47/2020 (III. 18), its conflict with an international treaty and to annul it with retroactive effect to the date of its entry into force. According to Section 6(4) of the Decree “in a separate agreement, the employee and the employer may depart from the provisions of the Labour Code” (i.e. ‘absolute dispositivity’). The petition, among other things, alleged the violation of equal treatment and the right to rest and leisure. The Constitutional Court rejected the motion to establish the unconstitutionality of Section 6(4) and its annulment, since it was repealed on 18 June 2020. The Constitutional Court may, as a general rule, examine the unconstitutionality of the legislation in force, however it was no longer possible to examine the challenged piece of legislation in the framework of a posterior abstract norm control.


Kristof Toth
Kristof Toth is PhD student at the Karoli Gaspar University in Hungary.
Case Reports

Access_open 2021/13 Equal Treatment Authority’s decision does not bind the court (HU)

Journal European Employment Law Cases, Issue 2 2021
Keywords Race, Nationality Discrimination, Discrimination General
Authors Zsofia Olah
AbstractAuthor's information

    This case involved an employee who claimed that her two consecutive employers breached the principle of equal treatment during their employment relationships in relation to her belonging to the Roma minority. The employee built her case on the decision of the Equal Treatment Authority, which declared that her employers discriminated against her. The Curia (the highest judicial authority in Hungary) found that the decision of another authority has no binding effect on a court according to Act III of 1952 on Civil Procedure and that in cases concerning equal treatment, the burden of proof lies on the defendant (employer) to prove that there is no link between the disadvantage suffered by the plaintiff (employee) and her protected characteristic. The Curia and regional courts also found that the employer fulfils this obligation if it successfully proves that it assessed the applicant’s qualifications, professional suitability and attitude towards work when it decided on the question of whom to employ.


Zsofia Olah
Zsofia Olah is a partner at OPL Law Firm.
Pending Cases

Case C-120/21, Paid Leave

LB – v – TO, reference lodged by the Bundesarbeitsgericht (Germany) on 26 February 2021

Journal European Employment Law Cases, Issue 2 2021
Keywords Paid Leave

    The German Federal Labour Court (Bundesarbeitsgericht, ‘BAG’) has ruled that the user of an online platform (‘crowdworker’) who takes on so-called ‘microjobs’ on the basis of a framework agreement concluded with the platform operator (‘crowdsourcer’) can be an employee of the crowdsourcer. This applies in a case where the framework agreement is aimed at a repeated acceptance of such microjobs. The decisive factor is whether the crowdworker performs work that is subject to instructions and is determined by third parties in the context of the actual performance of the contractual relationship. The name of the contract is irrelevant. One assumes an employment relationship if the crowdsourcer controls the collaboration via an online platform operated by them in such a way that the crowdworker cannot freely shape their activity in terms of place, time and content.


Katharina Gorontzi
Katharina Gorontzi, LLM, is a senior associate at Luther lawfirm in Dusseldorf, Germany.

Jana Voigt
Jana Voigt is a senior associate at Luther lawfirm in Dusseldorf, Germany.

    On 12 October 2020, the Labour Court of Appeal of Ghent ruled that there was no indirect discrimination in the case of Mrs. Achbita, because a policy of neutrality does not disadvantage Muslim women who want to wear a headscarf more than any other worker. The Labour Court of Appeal was also of the opinion that the employer should not examine alternative job positions.


Gautier Busschaert
Gautier Busschaert is an attorney-at-law at Van Olmen & Wynant.

    The Bucharest Tribunal has ruled that the time spent by employees in isolation at work during a Covid-19 pandemic state of emergency represents working time. However, the time spent in isolation at home following the period of isolation at work does not constitute rest time.


Andreea Suciu
Andreea Suciu is Managing Partner of Suciu | The Employment Law Firm.

Teodora Manaila
Teodora Manaila is a Senior Associate at Suciu | The Employment Law Firm, Bucharest, Romania.
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