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    If a religious organisation relies on an exception to the principle of equal treatment to draft rules that differ according to the religion of the employees, this must be subject to judicial review and will be acceptable only if the religion or belief constitutes a genuine and legitimate occupational requirement, justified by the ethos of the organisation concerned and the application of the exception is proportionate. If there are contrary provisions in national law, these must be disapplied.

    The Czech Supreme Court has ruled that the concept of good moral conduct must be taken into account when assessing whether an employee has breached his or her non-compete obligation and thus whether it is fair to demand that the employee pay a contractual penalty for the breach. The Court annulled the penalty.


Anna Diblíková
Anna Diblíková is an attorney at Noerr in Prague, www.noerr.com.
Pending cases

Case C-581/18, Age discrimination

YV, reference lodged by the Sąd Najwyższy (Poland) on 17 August 2018

Journal European Employment Law Cases, Issue 4 2018

    A ‘false’ works agreement, which reduces the standard weekly working hours for permanent staff, also applies to leased employees. However, the pay of leased employees remains governed by the applicable collective bargaining agreement, rather than by the ‘false’ works agreement. Therefore, leased (part-time) employees benefitted from the reduced working hours by the ‘false’ works agreement, but received full pay based on the collective bargaining agreement.


Sarah Lurf
Sarah Lurf is an associate with Schima Mayer Starlinger Rechtsanwälte GmbH in Vienna, sms.law.

    A provision of Dutch law, according to which employees who lose their jobs upon retirement are excluded from the right to statutory severance compensation, is not in breach of the Framework Directive.


Peter C. Vas Nunes
Peter Vas Nunes is Of Counsel at BarentsKrans N.V., The Hague, the Netherlands.
Pending cases

Case C-161/18, Equal treatment, Pension

Violeta Villar Láiz – v – Instituto Nacional de la Seguridad Social (INSS), Tesorería General de la Seguridad Social (TGSS), reference lodged by the Tribunal Superior de Justicia de Castilla y León (Spain) on 27 February 2018

Journal European Employment Law Cases, Issue 4 2018
Pending cases

Case C-429/18, Fixed-term work

Berta Fernández Álvarez, BMM, TGV, Natalia Fernández Olmos, María Claudia Téllez Barragán –‍ v – Consejería de Sanidad de la Comunidad de Madrid, reference lodged by the Juzgado de lo Contencioso-Administrativo de Madrid (Spain) on 28 June 2018

Journal European Employment Law Cases, Issue 4 2018

    The Danish Supreme Court has held there was no discrimination against four part-time teachers at a university in that they did not receive pension contributions. Their positions could not be compared to those of full-time teachers, who were entitled to pension contributions. However, it did constitute a violation of the Danish rules on fixed-term work that the teachers had, for a number of years, been employed on several fixed-term contracts, as they had, in effect, been continuously employed in the same position. Consequently, the teachers were awarded compensation.


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

ECJ 25 October 2018, case C-331/17 (Sciotto), Fixed-term work

Martina Sciotto – v – Fondazione Teatro dell’Opera di Roma, Italian case

Journal European Employment Law Cases, Issue 4 2018
Keywords Fixed-term work
Abstract

    The Framework Agreement to protect the misuse of successive fixed-term employment contracts or relationships precludes legislation, which disapplies rules aimed against such misuse, when there is no other effective penalty.

Rulings

ECJ 7 August 2018, case C-61/17 (Bichat), Collective redundancies

Miriam Bichat – v – Aviation Passage Service Berlin GmbH & Co. KG, German case

Journal European Employment Law Cases, Issue 4 2018
Keywords Collective redundancies
Abstract

    The obligations regarding collective redundancies also apply to all undertakings linked to an employer by shareholdings or by other links in law which allow for decisive influence in decision-making bodies and compel it to contemplate or to plan for collective redundancies.

Pending cases

Case C-44/18, Fixed-term work

Cobra Servicios Auxiliares, S.A. – v – FOGASA, Jesus Valiño Lopez en Incatema, S.L., reference lodged by the Tribunal Superior de Justicia de Galicia (Spain) on 24 January 2018

Journal European Employment Law Cases, Issue 4 2018

    The Finnish Supreme Court has held that an employer discriminated against an employee by not renewing his employment at the end of a fixed-term contract because he was overweight.


Janne Nurminen
Janne Nurminen is a Senior Associate with Roschier, Attorneys Ltd in Helsinki, www.roschier.com.
Pending cases

Case C-55/18, Working time

Federación de Servicios de Comisiones Obreras (CCOO) – v – Deutsche Bank SAE, reference lodged by the Audiencia Nacional (Spain) on 29 January 2018

Journal European Employment Law Cases, Issue 4 2018
Rulings

ECJ 6 September 2018, case C-17/17 (Grenville Hampshire), Insolvency

Grenville Hampshire – v – The Board of the Pension Protection Fund, British case

Journal European Employment Law Cases, Issue 4 2018
Keywords Insolvency
Abstract

    Each ex-employee of an insolvent employer is individually entitled to at least 50% of the pension that s/he would have enjoyed, had no insolvency taken place.

    In a recent decision, the Labour Court awarded an employee € 7,500 for working in excess of 48 hours a week, contrary to working time legislation. The complainant allegedly regularly checked and responded to emails outside of business hours, occasionally after midnight. The Labour Court reiterated it is the employer’s responsibility to ensure that employees are not permitted to work beyond the statutory maximum period and that if an employer is aware that an employee is working excessive hours, must take steps to curtail this.


Lucy O’Neill
Lucy O’Neill is an attorney-at-law at Mason Hayes & Curran in Dublin, Ireland.
Pending cases

Case C-103/18, Fixed-term work

Domingo Sánchez Ruiz – v – Comunidad de Madrid (Servicio Madrileño de Salud), reference lodged by the Juzgado de lo Contencioso-Administrativo No 8 de Madrid (Spain) on 13 February 2018

Journal European Employment Law Cases, Issue 4 2018
Rulings

ECJ 7 november 2018, case C-432/17 (O’Brien), Part-time work

Dermod Patrick O’Brien – v – Ministry of Justice, UK case

Journal European Employment Law Cases, Issue 4 2018
Keywords Part-time work
Abstract

    Periods of service prior to the deadline for transposing Directive 97/81/EC (amended by Directive 98/23/EC) must be taken into account for the purpose of calculating the retirement pension entitlement.

Pending cases

Case C-177/18, Other forms of discrimination

Almudena Baldonedo Martín – v – Ayuntamiento de Madrid, reference lodged by the Juzgado de lo Contencioso-Administrativo de Madrid (Spain) on 7 March 2018

Journal European Employment Law Cases, Issue 4 2018
Editorial

From the Editor

Journal Corporate Mediation Journal, Issue 2 2018
Authors Martin Brink

Martin Brink

Martin Brink
Martin Brink, PhD, is attorney at law, arbitrator and deputy judge at the The Hague Court of Appeals and an internationally certified mediator (MfN, IMI, CEDR Global Panel).
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