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Case Reports |
2020/52 An employer cannot compel an employee, without notice, to take deferred annual leave (FR) |
Journal | European Employment Law Cases, Issue 4 2020 |
Keywords | Paid Leave |
Authors | Claire Toumieux and Susan Ekrami |
AbstractAuthor's information |
Case Reports |
2020/49 Employing the former employees of a former service provider represents transfer of undertakings (RO) |
Journal | European Employment Law Cases, Issue 4 2020 |
Keywords | Transfer of Undertakings |
Authors | Andreea Suciu and Teodora Manaila |
AbstractAuthor's information |
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Case Reports |
2020/50 Transfer-related contractual changes void even if beneficial for employees (UK) |
Journal | European Employment Law Cases, Issue 4 2020 |
Keywords | Transfer of Undertakings, Employment Terms |
Authors | Lisa Dafydd |
AbstractAuthor's information |
The Employment Appeal Tribunal (EAT) has ruled that the provision under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) which renders changes to employees’ terms and conditions void if they are made because of the transfer applies to changes that are advantageous as well as detrimental to employees. On the facts of the case, this meant that owner-directors who had made significant improvements to their own employment terms before a TUPE transfer could not enforce these against the transferee employer. |
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 |
2020/51 Compensating untaken leave in case of termination without good cause – preliminary questions asked (AT) |
Journal | European Employment Law Cases, Issue 4 2020 |
Keywords | Paid Leave |
Authors | Maria Schedle |
AbstractAuthor's information |
The Austrian Supreme Court has asked preliminary questions about the lawfulness of Section 10(2) of the Austrian Law on Annual Leave which stipulates that an employee is not entitled to an allowance in lieu of annual leave in respect to the current (last) working year if they terminate the employment relationship prematurely without good cause. |
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. |
Rulings |
ECJ 4 June 2020, case C-588/18 (Fetico and others), Working Time, Paid LeaveFederación de Trabajadores Independientes de Comercio (Fetico), Federación Estatal de Servicios, Movilidad y Consumo de la Unión General de Trabajadores (FESMC-UGT), Federación de Servicios de Comisiones Obreras (CCOO) – v – Grupo de Empresas DIA SA, Twins Alimentación SA, Spanish case |
Journal | European Employment Law Cases, Issue 2 2020 |
Keywords | Working Time, Paid Leave |
Abstract |
Articles 5 and 7 of Directive 2003/88 do not apply to national rules providing for special leave on days when workers are required to work, when these days occur during weekly rest periods or paid annual leave. |
Case Reports |
2020/23 The Supreme Court reiterates the importance of retention of an organizational and functional link between the business factors transferred, a prerequisite in the existence of a transfer of undertaking (GR) |
Journal | European Employment Law Cases, Issue 2 2020 |
Keywords | Transfer of undertakings, Transfer |
Authors | Effie Mitsopoulou |
AbstractAuthor's information |
The Greek Supreme Court, in a case about the transfer of a business and the obligation on the transferee to continue employing the transferred employees, underlined the importance of a thorough and genuine control on all factors to be taken into consideration in order to conclude on the existence of a transfer of undertaking or not: the business transferred must retain an autonomous economic identity, in the sense that the functional link between the different factors transferred is retained, thus allowing the new entity to use them in order to exercise an economic activity identical or similar to the previous one. |
Case Reports |
2020/18 Prohibition of dismissal of pregnant employee (RO) |
Journal | European Employment Law Cases, Issue 2 2020 |
Keywords | Gender discrimination |
Authors | Andreea Suciu and Teodora Mănăilă |
AbstractAuthor's information |
Analysing the national legal framework in relation to the protection of pregnant employees and employees who have recently given birth or are breastfeeding, provisions which transposed the regulations of Directive 92/85/EEC and of the conclusions in case C-103/16, Jessica Porras Guisado – v – Bankia S.A. and Others, the Constitutional Court of Romania ascertained that the dismissal prohibition of a pregnant employee is strictly restricted to reasons that have a direct connection with the employee’s pregnancy status. As for other cases where the termination of the employment contract is the result of disciplinary misconduct, unexcused absence from work, non-observance of labour discipline, or termination of employment for economic reasons or collective redundancies, the employer must submit in writing well-reasoned grounds for dismissal. |
Rulings |
ECJ 7 May 2020, case C-96/19 (Bezirkhauptmannschaft Tulln), Working Time, MiscellaneousVO – v – Bezirkshauptmannschaft Tulln, Austrian case |
Journal | European Employment Law Cases, Issue 2 2020 |
Keywords | Working Time, Miscellaneous |
Abstract |
A Member State can require a driver of a vehicle with a digital tachograph, if both automatic and manual entry are lacking, to present a statement which his employer has drawn up according to the form annexed to Decision 2009/959/EU on a form concerning social legislation relating to road transport activities. |
Case Reports |
2020/26 Entitlement to allowance in lieu of untaken paid annual leave had lapsed because of garden leave (NL) |
Journal | European Employment Law Cases, Issue 2 2020 |
Keywords | Paid Leave |
Authors | Lisa de Vries and Jan-Pieter Vos |
AbstractAuthor's information |
Applying the ECJ’s Maschek judgment, the Zutphen subdistrict court has found that an employee was not entitled to an allowance in lieu of untaken paid annual leave at the end of the employment relationship, as she had already received special leave. Moreover, the obligation to inform the employee concerning the right to (exercise) paid annual leave did not rest upon the employer. |
Case Reports |
2020/14 Sickness absence related to employee’s disability (DK) |
Journal | European Employment Law Cases, Issue 2 2020 |
Keywords | Disability Discrimination, Unfair Dismissal |
Authors | Christian K. Clasen |
AbstractAuthor's information |
Recently, the Danish Eastern High Court found that an employee’s sickness absence was a result of the employer’s failure to comply with its obligation to offer reasonable accommodation for the employee’s disability. For that reason the employee, who was dismissed in pursuance of the Danish ‘120-day rule’, was entitled to compensation for unfair dismissal under the Danish Anti-Discrimination Act. |
Landmark Rulings |
ECJ 26 March 2020, case C-344/18 (ISS Facility Services), Transfer of undertakings, transfer, employment termsISS Facility Services NV – v – Sonia Govaerts and Atalian NV (formerly Euroclean NV), Belgian case |
Journal | European Employment Law Cases, Issue 2 2020 |
Keywords | Transfer of undertakings, Employment terms, Transfer |
Abstract |
In case of a transfer of undertaking involving multiple transferees, the rights and obligations arising from an employment contract may be divided between various transferees, if this is possible. If not (or if it is to the detriment of the employee), the transferees would be regarded as being responsible for any consequent termination under Article 4 of Directive 2001/23, even if this were to be initiated by the worker. |
Case Reports |
2020/16 Nature and extent of ‘reasonable accommodation’ to be provided to employees with disabilities (IE) |
Journal | European Employment Law Cases, Issue 2 2020 |
Keywords | Disability Discrimination |
Authors | Orla O’Leary |
AbstractAuthor's information |
In a recent Supreme Court decision, it was held by a 4-1 majority that there is no reason, in principle, why the provision of ‘reasonable accommodation’ for an employee with a disability should not involve the redistribution of duties. |
Pending Cases |
Case C-105/20, Gender Discrimination, Part Time WorkUF – v – Union Nationale des Mutualités Libres (Partenamut) (UNMLibres), reference lodged by the Tribunal du travail de Nivelles (Belgium) on 27 February 2020 |
Journal | European Employment Law Cases, Issue 2 2020 |
Keywords | Gender Discrimination, Part Time Work |
Landmark Rulings |
ECJ 22 April 2020, case C-692/19 (Yodel Delivery Network), Working Time, Employment StatusB – v – Yodel Delivery Network Ltd, UK case |
Journal | European Employment Law Cases, Issue 2 2020 |
Keywords | Working Time, Employment Status |
Abstract |
Directive 2003/88/EC precludes a self-employed independent contractor from being classified as a ‘worker’ under the Directive, if they are afforded discretion on the use of subcontractors, acceptance of tasks, providing services to third parties and fixing their own hours of work, provided that the independence does not appear to be fictitious and no relationship of subordination between them and their putative employer can be established. |
Rulings |
ECJ 30 April 2020, case C-211/19 (UO – v – Készenléti Rendőrség), Working timeUO – v – Készenléti Rendőrség, Hungarian case |
Journal | European Employment Law Cases, Issue 2 2020 |
Keywords | Working Time |
Abstract |
The referring court must verify whether Article 2(1) and (2) of Directive 2003/88/EC apply to members of the law enforcement agencies who guard the external border of a Member State in the event of an influx of third-party nationals at those borders. |
Case Reports |
2020/40 Holiday entitlement in the release phase of partial retirement according to the so-called ‘block model’ (GE) |
Journal | European Employment Law Cases, Issue 3 2020 |
Keywords | Paid Leave, Part-time work, Pension |
Authors | Othmar K. Traber |
AbstractAuthor's information |
The Federal Labour Court of Germany (Bundesarbeitsgericht, ‘BAG’) had to decide on a case in which an employee claimed vacation entitlements for the release phase of a partial retirement scheme. Because the employee was released from his work obligation during the release phase of the partial retirement under the so-called ‘block model’ he was not entitled to statutory leave so that the lawsuit was unsuccessful in the final instance. |