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. |
Search result: 273 articles
Year 2018 xRulings |
ECJ 11 September 2018, case C-68/17 (IR – v – JQ), Religious discriminationIR – v – JQ, German case |
Journal | European Employment Law Cases, Issue 4 2018 |
Keywords | Religious discrimination |
Abstract |
Case Reports |
EELC 2018/42 No reduction of vacation pay for already accrued vacation entitlement in the case of a reduction of weekly working hours later on (GE) |
Journal | European Employment Law Cases, Issue 4 2018 |
Keywords | Paid leave |
Authors | Nina Stephan and Paul Schreiner |
AbstractAuthor's information |
According to German law, every employee is entitled to paid annual leave. The amount of pay is generally calculated based on the current salary (known as the “principle of loss of pay”) but a reduction of working hours during the year does not lead to a reduction of entitlement to holiday pay for previously acquired holiday entitlements. If the entitlement was already acquired before the reduction of working time (which can happen because in Germany holiday entitlement is acquired at the beginning of the calendar year), pay during leave will be based on the salary agreed between the employer and employee when the holiday entitlement was acquired and thus, based on the ‘old’ salary. |
Case Reports |
EELC 2018/46 Limits to a contractual penalty for non-compliance with a non-compete clause (CZ) |
Journal | European Employment Law Cases, Issue 4 2018 |
Keywords | Miscellaneous |
Authors | Anna Diblíková |
AbstractAuthor's information |
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. |
Case Reports |
EELC 2018/40 Equal treatment of leased employees by ‘false’ works agreements (AU) |
Journal | European Employment Law Cases, Issue 4 2018 |
Keywords | Temporary agency work, Part-time work |
Authors | Sarah Lurf |
AbstractAuthor's information |
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. |
Pending cases |
Case C-37/18, MiscellaneousVueling Airlines SA – v – Jean-Luc Poignan, reference lodged by the the Cour de cassation (France) on 19 January 2018 |
Journal | European Employment Law Cases, Issue 4 2018 |
Case Reports |
EELC 2018/35 Employees who lose their jobs upon retirement are not entitled to statutory severance compensation (NL) |
Journal | European Employment Law Cases, Issue 4 2018 |
Keywords | Age discrimination |
Authors | Peter C. Vas Nunes |
AbstractAuthor's information |
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. |
Pending cases |
Case C-161/18, Equal treatment, PensionVioleta 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 |
Landmark Rulings |
ECJ 6 November 2018, case C-684/16 (Max-Planck-Gesellschaft), Paid leaveMax-Planck-Gesellschaft zur Förderung der Wissenschaften e.V. – v – Tetsuji Shimizu, German case |
Journal | European Employment Law Cases, Issue 4 2018 |
Keywords | Paid leave |
Abstract |
A worker does not automatically lose the right to annual leave because s/he did not apply for it. The employer must have informed the employee about the opportunity to take the leave adequately and in a timely way, and must be able to prove it. Based on the EU Charter of Fundamental Rights, this applies between individuals as well. |
Pending cases |
Case C-429/18, Fixed-term workBerta 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 |
Case Reports |
EELC 2018/39 Supreme Court decision on part-time work and fixed-term employment (DK) |
Journal | European Employment Law Cases, Issue 4 2018 |
Keywords | Part-time work, Fixed-term work |
Authors | Christian K. Clasen |
AbstractAuthor's information |
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. |
Rulings |
ECJ 21 November 2018, case C-245/17 (Viejobueno Ibáñez and De la Vara González), Fixed-term work, Paid leavePedro Viejobueno Ibáñez, Emilia de la Vara González – v – Consejería de Educación de Castilla-La Mancha, Spanish case |
Journal | European Employment Law Cases, Issue 4 2018 |
Keywords | Fixed-term work, Paid leave |
Abstract |
The sole fact that fixed-term employment relationships terminate, whereas permanent relationships do not, does not constitute discrimination. Nevertheless, fixed-term teachers should receive an allowance in lieu of untaken leave. |
Rulings |
ECJ 25 October 2018, case C-331/17 (Sciotto), Fixed-term workMartina 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. |
Landmark Rulings |
ECJ 6 November 2018, joined cases C-569/16 (Bauer) and C-570/16 (Willmeroth), Paid leaveStadt Wuppertal – v – Maria Elisabeth Bauer and Volker Willmeroth – v – Martina Broßonn, German case |
Journal | European Employment Law Cases, Issue 4 2018 |
Keywords | Paid leave |
Abstract |
Heirs of a deceased worker are entitled to an allowance in lieu of untaken paid annual leave. Based on the EU Charter of Fundamental Rights, this applies between individuals as well. |
Case Reports |
EELC 2018/41 Spanish Supreme Court now aligned with ECJ’s case law: Limitation to pre-transfer liabilities for new contractor under CBA-led transfers that triggers a non-asset based transfer are not valid (SP) |
Journal | European Employment Law Cases, Issue 4 2018 |
Keywords | Transfer of undertaking, Miscellaneous |
Authors | Luis Aguilar |
AbstractAuthor's information |
Following the ECJ’s decision in Somoza Hermo – v – Ilunion Seguridad, C-60/17 (Somoza Hermo) of 11 July 2018, all eyes were on the Spanish Supreme Court. Since 2016, the Court has ruled a number of times that limitations to the liability of the new contractor established in a collective bargaining agreement (‘CBA’) in the context of a CBA-led transfer were valid (see e.g. EELC 2018/21). Somoza Hermo established that a CBA-led transfer that entails a non-asset-based transfer is a transfer within the meaning of the Acquired Rights Directive. Now the Supreme Court (in a decision dated 27 September 2018 taken with one dissenting opinion) is clear that its doctrine must be reviewed and has therefore held that limitations on pre-transfer liability for a new contractor under a CBA-led transfer that trigger a non-asset-based transfer, are not valid. |
Case Reports |
EELC 2018/38 Collective Redundancies: Failure to notify Employment Service cannot be healed by postponing termination (AU) |
Journal | European Employment Law Cases, Issue 4 2018 |
Keywords | Collective redundancies |
Authors | Andreas Tinhofer |
AbstractAuthor's information |
The Austrian Supreme Court has held that the employer must notify the Employment Service (AMS) when it is contemplating collective redundancies, even if they are carried by mutual agreement. The duty of notification is triggered if the employer proposes a mutual termination agreement to a relevant number of employees, provided the offer is binding and can be accepted by the employees within 30 days. If the employer fails to notify the AMS, any subsequent redundancies (or mutual terminations of employment occurring on the employer’s initiative) are void, even if effected after 30 days. |
Rulings |
ECJ 7 August 2018, case C-61/17 (Bichat), Collective redundanciesMiriam 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. |
Case Reports |
EELC 2018/37 Supreme Court rules on discrimination for being overweight (FI) |
Journal | European Employment Law Cases, Issue 4 2018 |
Keywords | Disability discrimination |
Authors | Janne Nurminen |
AbstractAuthor's information |
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. |
Case Reports |
EELC 2018/44 Travelling time from home to customers is working time in the absence of a fixed work place (BE) |
Journal | European Employment Law Cases, Issue 4 2018 |
Keywords | Working time |
Authors | Dr. Pieter Pecinovsky |
AbstractAuthor's information |
For workers without a fixed workplace, travelling time between their place of residence and the first customer and travelling time between the last customer and the place of residence constitutes working time. |
Case Reports |
EELC 2018/36 An expectation that a disabled employee should work long hours was potentially discriminatory (UK) |
Journal | European Employment Law Cases, Issue 4 2018 |
Keywords | Disability discrimination |
Authors | Tom McEvoy |
AbstractAuthor's information |
The Court of Appeal has confirmed that an expectation that a disabled employee would work long hours was a ‘provision, criterion or practice’ in a disability discrimination claim regarding reasonable adjustments. It also held that, on the facts, the employer’s conduct had caused the employee to resign and this entitled him to claim constructive unfair dismissal. |
Rulings |
ECJ 4 October 2018, case C-12/17 (Dicu), Maternity and parental leave, Paid leaveTribunalul Botoşani, Ministerul Justiţiei – v – Maria Dicu, Romanian case |
Journal | European Employment Law Cases, Issue 4 2018 |
Keywords | Maternity and parental leave, Paid leave |
Abstract |
A period of parental leave does not count within the reference period for the purpose of determining an employee’s right to annual leave under Directive 2003/88/EC. |