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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

    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.


Jonas Thorsdalen Wik
Jonas Thorsdalen Wik is an attorneys-at-law at Hjort Law Firm (Oslo, Norway).

Dag Sørlie Lund
Dag Sørlie Lund is an attorneys-at-law at Hjort Law Firm (Oslo, Norway).

    The recent spread of the Covid-19 pandemic has shown how economic vulnerability varies considerably across European Member States (MSs), and so does social protection in the European Union (EU). The social and economic consequences of the pandemic have impacted asymmetrically national labour markets and exacerbated existing disparities and contradictions. A measure that most governments have introduced in the immediate aftermath has been that of making financial support available to those self-employed workers who lost fully or in part their income. Most MSs have employed quantitative thresholds to identify those self-employed more in need of public subsidies and have proportioned them according to the pre-pandemic levels of income, on the condition that they have been officially recorded as taxable revenues.
    Despite their heterogeneity, we can reasonably affirm that the self-employed have been one of the most exposed clusters of the labour market to in-work poverty and economic uncertainty, which proved to be particularly problematic in periods of unforeseeable crisis, such as that of 2008 and even more so that of 2020. This article explores the range of EU-level measures designed for the self-employed and questions their potential impact on MSs’ legislation.


Luca Ratti
Luca Ratti is a professor at the University of Luxembourg.

    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))
Case Law

2020/1 EELC’s review of the year 2019

Journal European Employment Law Cases, Issue 1 2020
Authors Ruben Houweling, Daiva Petrylaitė, Peter Schöffmann 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

Peter Schöffmann

Attila Kun

Francesca Maffei

Jean-Philippe Lhernould

Niklas Bruun

Jan-Pieter Vos

Luca Ratti

Anthony Kerr

Petr Hůrka

Michal Vrajík
Case Reports

2020/8 Right of temporary workers to the same pay for the same work (LT)

Journal European Employment Law Cases, Issue 1 2020
Keywords Temporary agency work, Other forms of discrimination
Authors Vida Petrylaitė
AbstractAuthor's information

    On 20 June 2019, Vilnius Regional Court in Lithuania (instance of appeal) delivered a decision in a case where the applicants claimed that a temporary employment agency, UAB Manpower Lit (the ‘Agency’), which recruited temporary workers (‘claimants’) for the European Institute for Gender Equality (‘EIGE’), paid them lower salaries than permanent staff. It was ruled that the Agency had discriminated against these workers by paying them lower salaries than they would have received if they had been recruited directly by EIGE. The Court also ordered the payment of pay arrears for a certain period to the temporary staff.


Vida Petrylaitė
Vida Petrylaitė is an associate professor at Vilnius University.

    In two appeal cases considered jointly, the Court of Appeal (CA) has ruled that it is not direct or indirect sex discrimination, nor a breach of equal pay rights, to provide enhanced pay for maternity leave and statutory pay only for shared parental leave (SPL).


Richard Lister
Richard Lister is a Managing Practice Development Lawyer at Lewis Silkin LLP.

    The author discusses the recent ECJ judgments in the cases Egenberger and IR on religious discrimination.


Andrzej Marian Świątkowski
Andrzej Marian Świątkowski, is a Jean Monet Professor of European Labour Law and Social Security, Jesuit University Ignatianum, Krakow, Poland and a member of the EELC Academic Board.

    The Luxembourg Court of Appeal (Cour d’appel de Luxembourg) confirmed that an employee dismissed with notice and exempted from performing their work during the notice period is no longer bound by the non-competition duties arising from their loyalty obligation and can therefore engage in an employment contract with a direct competitor of their former employer during that exempted notice period. However, the Court of Appeal decided that, even if the former employee is in principle entitled to use the know-how and knowledge they acquired with their former employer, the poaching of clients during the notice period must, due to the facts and circumstances and in the light of the rules applicable in the financial sector, be considered as an unfair competition act and therefore constitutes serious misconduct justifying the termination of the employment contract with immediate effect.


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

Régis Muller
Régis Muller is partner within the Employment, Pension & Immigration department of MOLITOR Avocats à la Cour SARL in Luxembourg, www.molitorlegal.lu.
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
Case Reports

2018/32 When is travelling time working time? (NO)

Journal European Employment Law Cases, Issue 3 2018
Keywords Working time
Authors Marianne Jenum Hotvedt and Anne-Beth Engan
AbstractAuthor's information

    The Norwegian Supreme Court concludes that time spent on a journey ordered by the employer, to and from a place other than the employee’s fixed or habitual place of work, should be considered working time within the meaning of the statutory provisions implementing the Working Time Directive (2003/88/EC). This ruling takes into account the Advisory Opinion of the EFTA Court.


Marianne Jenum Hotvedt
Marianne Jenum Hotvedt is an associate professor at the Department of Private law, University in Oslo. She got her PhD on the thesis ‘The Employer Concept’.

Anne-Beth Engan
Anne-Beth Engan is a senior associate with the law firm Selmer AS in Oslo.
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