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Case Law

2022/1 EELC’s review of the year 2021

Journal European Employment Law Cases, Issue 1 2022
Authors Niklas Bruun, Filip Dorssemont, Zef Even e.a.
Abstract

    Various of our academic board analysed employment law cases from last year.


Niklas Bruun

Filip Dorssemont

Zef Even

Ruben Houweling

Marianne Hrdlicka

Anthony Kerr

Attila Kun

Jean-Philippe Lhernould

Daiva Petrylaitė

Luca Ratti

Jan-Pieter Vos
Rulings

ECJ 13 January 2022, case C-514/20 (Koch Personaldienstleistungen), Paid Leave

DS – v – Koch Personaldienstleistungen GmbH, German case

Journal European Employment Law Cases, Issue 1 2022
Keywords Paid Leave
Abstract

    Periods of annual leave must be taken into account when calculating whether an employee reached the threshold to be entitled to overtime payments.

    The Federal Labour Court of Germany has continued to specify the requirements for the legality of age limits in employer-funded pension plans under German law. In this case, according to the Court, the employer could impose a maximum age of 55 as a requirement of entry to the company pension plan.


Othmar K. Traber
Othmar Traber is a partner at Ahlers & Vogel, Bremen.
Pending Cases

Case C-57/22, Paid Leave

YQ – v – DŘeditelství silnic a dálnic ČR, reference lodged by the Nejvyšší soud České republiky (Czech Republic) on 28 January 2022

Journal European Employment Law Cases, Issue 1 2022
Keywords Paid Leave
Case Reports

2022/7 Dismissal for violation of Covid-19 quarantine order (AT)

Journal European Employment Law Cases, Issue 1 2022
Keywords Unfair dismissal
Authors Andreas Tinhofer and Isabella Göschl
AbstractAuthor's information

    The Supreme Court has decided that the summary dismissal of an employee for violating a Covid-19 quarantine order by appearing at work is effective and justified.


Andreas Tinhofer
Andreas Tinhofer is a partner at ZFZ Zeiler Rechtsanwälte GmbH.

Isabella Göschl
Isabella Göschl is a junior associate at ZFZ Zeiler Rechtsanwälte GmbH.
Rulings

ECJ 24 February 2022, case C-262/20 (Glavna direktsia „Pozharna bezopasnost i zashtita na naselenieto”), Working Time

VB – v – Glavna direktsia „Pozharna bezopasnost i zashtita na naselenieto”, Bulgarian case

Journal European Employment Law Cases, Issue 1 2022
Keywords Working Time
Abstract

    It is not compulsory for the normal length of night work for firefighters to be shorter than the normal length of day work. It is allowed to provide for a maximum length of night work of 7 hours only for workers in the private sector and not for public-sector workers.

    On 1 December 2021, just prior to the transposition deadline for Directive (EU) 2019/1937 on the protection of persons who report breaches of Union law (the ‘Whistleblowing Directive’), the Irish Supreme Court delivered a judgment that may have an impact on the Protected Disclosures (Amendment) Bill, the piece of legislation intended to be enacted in order to comply with the Whistleblowing Directive. The judgment noted that, while the Oireachtas (the Irish parliament) had envisaged that most complaints for which whistleblower protection would be sought would concern matters of public interest, the actual definition of ‘protected disclosure’ in the Protected Disclosures Act 2014 (the ‘2014 Act’) extends further than that and can cover complaints in the context of employment which are personal to the reporting person. While Ireland has missed the deadline and has yet to enact the Protected Disclosures (Amendment) Bill, one of the intended amendments has been changed since this judgment was delivered.


Sarah O’Mahoney
Sarah O’Mahoney is a General Knowledge Lawyer at Mason, Hayes & Curran, Dublin.
Rulings

ECJ 7 April 2022, case C-236/20 (Ministero della Giustizia and Others (Status of Italian Magistrates)), Fixed-Term Work, Part Time Work, Paid Leave

PG – v – Ministero della Giustizia, CSM – Consiglio Superiore della Magistratura, Presidenza del Consiglio dei Ministri, Italian case

Journal European Employment Law Cases, Issue 1 2022
Keywords Fixed-Term Work, Part Time Work, Paid Leave
Abstract

    Peace judges must be treated like ordinary judges.

Pending Cases

Case C-30/22, Social Insurance

DV – v – Direktor na Teritorialno podelenie na Natsionalnia osiguritelen institut – Veliko Tarnovo, reference lodged by the Administrativen sad Veliko Tarnovo (Bulgaria) on 12 January 2022

Journal European Employment Law Cases, Issue 1 2022
Keywords Social Insurance

    The Iaşi Court of Appeal in Romania has upheld a decision issued by the Vaslui Tribunal which found that an employee cannot be the subject of disciplinary action for the refusal to perform work during their weekly rest notwithstanding that a working time schedule imposed by the employer was based on the applicability of an internal company policy.


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

Andreea Oprea
Andreea is an attorney-at-law at Suciu | The Employment Law Firm.

    Working as a rider for the Deliveroo platform is a professional activity that can be performed as a self-employed worker, the Labour Tribunal of Brussels has decided, which also ruled out the possibility of Deliveroo riders enjoying the fiscally beneficial status available for workers active on electronic platforms of the collaborative economy (or ‘sharing economy’).


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

    The Arnhem Court of Appeal has examined whether an employee was reasonably able to take leave, applying the ECJ’s Max Planck and Kreuziger judgments. According to the Court, the employer did not violate its obligation to inform the employee regarding the lapse of the right to paid annual leave. The Court stated that the employee was reasonably able to take leave, despite being incapacitated for work due to sickness. The Court ruled that the employee was not entitled to an allowance in lieu of untaken paid annual leave, as the right to such leave had lapsed.


Tessa van der Stel
Tessa van der Stel recently graduated from Erasmus School of Law, Rotterdam.

    An Employment Tribunal (ET) decision involving an advertising agency has highlighted the dangers for employers of taking an overly aggressive approach to reducing gender pay gaps. It also provides a reminder that all discrimination is unlawful, even where the victims are from a historically privileged group.


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

    Building upon the ECJ case law qualifying stand-by time with significant availability obligations of volunteer firefighters as working time, the Belgian Court of Cassation has upheld a system of compensation by which stand-by time pays less than regular working time.


Gautier Busschaert
Gautier Busschaert is an attorney-at-law at Van Olmen & Wynant, Brussels.
Case Reports

Access_open 2021/36 No discrimination of reduced hours employees (DK)

Journal European Employment Law Cases, Issue 4 2021
Keywords Disability Discrimination
Authors Christian K. Clasen
AbstractAuthor's information

    In four recent cases, the Danish Eastern High Court addressed the question of whether it was indirect disability discrimination to dismiss four reduced hours employees (fleksjobbere) as part of a cost-saving process because they lacked essential core skills. The High Court ruled in favour of the employer, stating that the employer was not required to maintain the employees’ employment as it would be incompatible with the new demands for qualifications caused by the cutbacks. Consequently, the dismissals did not constitute indirect disability discrimination.


Christian K. Clasen
Christian K. Clasen is a partner at Norrbom Vinding, Copenhagen.

    The Court of Appeal (CA) has allowed an appeal by HM Revenue & Customs (HMRC) against a decision that there was insufficient mutuality of obligation and control for football referees to be treated as employees for tax purposes.


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

    If a worker takes annual leave when he is incapacitated for work due to illness, he is entitled to his full salary rather than a reduced amount which he is entitled to during illness.

Rulings

ECJ 25 November 2021, case C-233/20 (job-medium), Paid Leave

WD – v – job-medium GmbH in liquidation, Austrian case

Journal European Employment Law Cases, Issue 4 2021
Keywords Paid Leave
Abstract

    Directive 2003/88 precludes provisions which deny a worker an allowance in lieu for untaken leave when his employment relationship ends, even if the employee terminated it without good cause.

Rulings

ECJ 11 November 2021, case C-214/20 (Dublin City Council), Working Time

MG – v – Dublin City Council, Irish case

Journal European Employment Law Cases, Issue 4 2021
Keywords Working Time
Abstract

    The Dolj Tribunal has ascertained that a former employee, while acting as school director, by not fulfilling her obligations to schedule the annual leave of school teachers, including herself, cannot claim against the school as the employer for not providing the opportunity to take the annual leave or to inform of the possibility of losing such right. Furthermore, such actions of the former director will lead to the loss of the right to request compensation in case of termination of employment.


Andreea Suciu
Andreea is Managing Partner of Suciu I The Employment Law Firm

Teodora Mănăilă
Teodora Mănăilă is an attorney-at-law at Suciu I The Employment Law Firm, Bucharest, Romania.
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