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Case Reports

2016/55 New Supreme Court decision on the distinction between independent contractors and employees (NO)

Journal European Employment Law Cases, Issue 4 2016
Keywords Independent contractors, Employees
Authors Marianne Jenum Hotvedt and Anne-Beth Engan
AbstractAuthor's information

    EU employment protection is usually limited to “employees”, meaning that independent contractors are not covered. However, EU law often leaves it to Member States to determine the meaning of employee. The directives regulating transfers of undertakings, collective redundancies, written working conditions, information and consultation, part-time work, temporary agency workers etc. are all examples of protection covering only ‘employees’ as defined by each Member State.
    Consequently, the interpretation of ‘employee’ at the national level determines whether protection in EU law applies. This case report concerns the distinction between an independent contractor and employee. The question was whether a support worker for a child needing extra care and support should be considered as employed by Ålesund municipality. The majority (4-1) found that the support worker was an employee. The case illustrates how the notion of employee in Norwegian law adapts to new ways of organising work and may be of interest in other jurisdictions.


Marianne Jenum Hotvedt
Marianne Jenum Hotvedt is a postdoctoral fellow at the Department of Private law, University in Oslo. In 2015, she got her Ph.D. on the thesis ‘The Employer Concept’.

Anne-Beth Engan
Anne-Beth Engan is an associate with Advokatfirmaet Selmer DA in Oslo.
ECJ Court Watch

Case C-306/16. Working time

António Fernando Maio Marques da Rosa – v – Varzim Sol – Turismo, Jogo e Animação, S, reference lodged by the Portuguese Tribunal da Relação do Porto on 30 May 2016

Journal European Employment Law Cases, Issue 4 2016
Keywords Working time

    The Court of Appeal has given guidance on how to determine employment status in discrimination cases where the claimant is engaged on a case-by-case basis. The judgment confirms that the lack of mutual obligations between the putative employer and employee between assignments can be a relevant factor. If an individual is engaged on an assignment-by-assignment basis, with the freedom to turn down work when it is offered, this may imply a lack of subordination during the periods of work. The absence of an overarching ‘umbrella’ contract between assignments may therefore be relevant when determining whether an individual is protected by discrimination law.


Tom McEvoy
Tom McEvoy is a Trainee Solicitor at Lewis Silkin LLP: www.lewissilkin.com.
ECJ Court Watch

ECJ 14 September 2016, case C-16/15 (Pérez López), Fixed-term work

María Elena Pérez López – v – Servicio Madrileño de Salud (Comunidad de Madrid)

Journal European Employment Law Cases, Issue 4 2016
Keywords Fixed-term work
Abstract

    Successive fixed-term contracts cannot be justified by legal provisions allowing renewal in order to ensure the provision of certain services of a temporary, auxiliary or extraordinary nature when, in reality, there is no obligation to create additional permanent posts in order to bring an end to the structural use of fixed-term work to fill permanent posts.

ECJ Court Watch

ECJ 21 September 2016, case C-631/15 (Alvarez Santirso), Fixed-term employment

Carlos Alvarez Santirso – v – Consejería de Educación, Cultura y Deporte del Principado de Asturias

Journal European Employment Law Cases, Issue 4 2016
Keywords Fixed-term work
Abstract

    Spanish law which reserves participation in evaluation plans for teachers contravenes Directive 1999/70.

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.

ECJ Court Watch

Case C-415/16. Working time

David Fernando Leal da Fonseca – v – Varzim Sol – Turismo, Jogo e Animação, SA, reference lodged by the Portuguese on 27 July 2016

Journal European Employment Law Cases, Issue 4 2016
Keywords Working time

    The Industrial Disputes Court considered certain substantive and procedural issues in the context of a claim for sexual harassment and victimisation. This case provides a good illustration of the principles the tribunals apply when examining sexual harassment cases and how these are interpreted by Cypriot employment courts.


Anna Praxitelous
Anna Praxitelous is a lawyer with George Z. Georgiou & Associates LLC, www.gzg.com.cy. This article was originally edited by, and first published on, www.internationallawoffice.com.

    The Austrian Supreme Court has ruled that the general prohibition of Muslim face veils by an employer does not constitute unlawful discrimination. In this landmark decision, Austria’s Supreme Court expresses the view that an uncovered face is a prerequisite to proper communication. Thus, termination of employment by reason of an employee’s refusal to come to work unless she can wear a face veil is not unlawful under the Austrian Equal Treatment Act. Whether this rule also applies to other religious clothing such as headscarves remains to be seen.


Hans Georg Laimer
Hans Georg Laimer is a partner at zeiler.partners Rechtsanwälte GmbH.

Lukas Wieser
Lukas Wieser is an attorney at law at zeiler.partners Rechtsanwälte GmbH.
ECJ Court Watch

Case 89/16. Social security

Radosław Szoja – v – Sociálna poisťovňa, reference lodged by the Slovakian Najvyšší súd Slovenskej republiky on 15 February 2016

Journal European Employment Law Cases, Issue 3 2016
Keywords Social security

James Davies
James Davies is Joint Head of Employment team at Lewis Silkin LLP in London, www.lewissilkin.com.
Case Reports

2016/45 Supreme Court rules on social security legislation applicable to temps posted abroad (PL)

Journal European Employment Law Cases, Issue 3 2016
Keywords Free movement, social security and temporary agency workers
Authors Marcin Wujczyk PhD
AbstractAuthor's information

    Temporary agency workers employed by a Polish agency and posted temporarily to France to work there under the direction of a French client are entitled to A1 certificates and, therefore, to remain governed by exclusively Polish social security legislation while working in France.


Marcin Wujczyk PhD
Marcin Wujczyk, PhD., is a partner with Ksiazek Bigaj Wujczyk in Krakow, www.ksiazeklegal.pl.
ECJ Court Watch

Case C-175/16. Working time

Hannele Hälvä, Sari Naukkarinen, Pirjo Paajanen, Satu Piik – v – SOS-Lapsikylä ry, reference lodged by the Finnish Korkein oikeus on 29 March 2016

Journal European Employment Law Cases, Issue 3 2016
Keywords Working time
ECJ Court Watch

Case C-97/16. Working time

José María Pérez Retamero – v – TNT Express Worldwide, S.L., Transportes Sapirod, S.L. and Fondo de Garantía Salarial (Fogasa), reference lodged by the Spanish Juzgado de lo Social No 3 de Barcelona on 17 February 2016

Journal European Employment Law Cases, Issue 3 2016
Keywords Working time
ECJ Court Watch

ECJ 20 July 2016, case C-341/15 (Maschek), Paid leave

Hans Maschek – v – Magistratsdirektion de Stadt Wien – Personalstelle Wiener Stadtwerke

Journal European Employment Law Cases, Issue 3 2016
Keywords Paid leave
Abstract

    The fact that a worker retires voluntarily does not deprive him of the right to payment in lieu of paid annual leave he was unable to use up on account of sickness.

    If a collective agreement grants older employees a higher vacation claim solely because of their age, a younger employee is entitled to the same number of days of leave.


Paul Schreiner
Paul Schreiner and Jana Hunkemöller are, respectively, a partner in Essen and an associate in Düsseldorf with Luther Rechtsanwaltgesellschaft mbH, www.luther-lawfirm.com.

Jana Hunkemöller
Case Reports

2016/48 Establishment of the European Work Council (SK)

Journal European Employment Law Cases, Issue 3 2016
Keywords Work Council, establishment of the European Work Council
Authors Gabriel Havrilla and Dominika Šlesárová
AbstractAuthor's information

    Council Directive 94/45/EC (the ‘Directive’) determines the conditions for setting up a European Works Council or other means of providing information to employees in relation to employers that operate in more than one EU Member State. The aim of the Directive is to ensure employees are properly informed about their own employer and the company group operating in the EU, under their right to transnational information. In the case at hand, the courts needed to determine what conditions had to be met to set up a European Work Council and when a European Work Council would be established by operation of law.


Gabriel Havrilla
Gabriel Havrilla is a partner with Legal Counsels s.r.o., www.legalcounsels.sk.

Dominika Šlesárová
Dominika Šlesárová is a junior associate with Legal Counsels s.r.o., www.legalcounsels.sk.
Case Reports

2016/42 Court finds fixed-term employee eligible for contract of indefinite duration (CY)

Journal European Employment Law Cases, Issue 3 2016
Keywords Dismissal, conversion fixed term contracts
Authors Michalis Hadjigiovanni
AbstractAuthor's information

    Where an employee’s working time exceeds the 30 months prescribed by law, a fixed term contract will be converted into an indefinite term contract.


Michalis Hadjigiovanni
Michalis Hadjigiovanni is a lawyer with George Z. Georgiou & Associates LLC in Nicosia, www.gzg.com.cy.

    The French state was held liable by the Administrative Court of Clermont-Ferrand for failing to transpose Article 7§1 of EU Directive 2003/88/EC on working time.


Claire Toumieux
Claire Toumieux and Susan Ekrami are a partner and associate with Allen & Overy LLP in Paris, www.allenovery.com.

Susan Ekrami
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