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European Employment Law Cases

Meer op het gebied van Arbeidsrecht

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Aflevering 2, 2016 Alle samenvattingen uitklappen
Case Reports

2016/19 Reference in a termination letter to ‘retirement’ can cost the employer dearly (GE)

Trefwoorden Age discrimination
Auteurs Paul Schreiner en Dagmar Hellenkemper
SamenvattingAuteursinformatie

    In businesses employing fewer than ten employees, the rules on unfair dismissal do not apply. However, those on discrimination do. This fact made it possible for the 63 year-old employee in this case to claim damages, effectively for unfair dismissal. She had been dismissed following a reduction in the available work. She was selected for redundancy because she was less qualified than her colleagues. However, her termination letter mentioned that she had become “eligible for retirement”. This remark created a presumption of age discrimination, which the employer was not able to rebut.


Paul Schreiner

Dagmar Hellenkemper
Paul Schreiner and Dagmar Hellenkemper are lawyers with Luther Rechtsanwaltsgesellschaft mbH, www.luther-lawfirm.com.

    For the fourth time in seven years, an Austrian court has asked the ECJ for guidance on the subject of age discrimination in pay scales. In this latest case, the period required to progress from step 1 to step 2 on the pay scale was longer than the period needed to progress from step 2 to step 3 and beyond. Does that constitute age discrimination? The author argues that it does, and that the arguments advanced to justify it are not valid.


Dr. Marta J. Glowacka
Dr. Marta J. Glowacka, LL.M. is an assistant professor at the Institute for Austrian and European Labour Law and Social Security Law at Vienna University of Economics and Business, www.wu.ac.at.

    The Belgian Labour Court decided in this case that the attitude/behaviour of an employer towards an employee constitutes harassment and discrimination, as the behaviour was such that the employee could have had the impression that he could lose his job because of his state of health. The employee resumed work after long-term incapacity owing to heart disease, but only on a part-time basis.
    The Court considered that the successive actions of the employer towards his employee were aimed at ending his employment rather than actively promoting reintegration. Such behaviour, on the facts, could be considered as harassment and discrimination.
    Moreover, the Court specified that the health of the employee, who had partially resumed work after being off sick for heart disease, could be regarded as a disability in accordance with EU Directive 2000/78. The Court explicitly referred to the ECJ HK Danmark case.


Isabel Plets

Karl Goethals
Isabel Plets and Karl Goethals are lawyers with Lydian in Brussels, www.lydian.be.

    Following a restructure of his employer, an over 50 year old employee was deprived of the opportunity to apply for voluntary redundancy, compared to his under 50 year old colleagues, because it would have triggered early retirement resulting in a higher redundancy package. The Employment Tribunal (‘ET’) held that the use of under 50 year old comparators was not appropriate because the comparators were not entitled to early retirement and were therefore in materially different circumstances compared to the claimant. On appeal to the Employment Appeal Tribunal (‘EAT’), the EAT held that the fact that the comparators were not entitled to early retirement was not a “relevant circumstance” making the comparators invalid. A prima facie case of direct age discrimination was therefore made out. The EAT remitted the case back to the original ET to determine if the employer’s direct discrimination could be justified.


Sarah O’Brien
Sarah O’Brien is a trainee solicitor at Lewis Silkin LLP.

    An employee challenged whether her employer’s refusal to provide childcare vouchers during maternity leave was discriminatory. The Employment Appeal Tribunal (EAT) determined, somewhat tentatively, that where childcare vouchers are provided through a salary sacrifice scheme, it is not discriminatory for employers to cease to provide childcare vouchers during maternity leave.


Catherine Hayes
Catherine Hayes is an Associate at Lewis Silkin LLP: www.lewissilkin.com.
Case Reports

2016/24 Claimant required to show the ‘reason why’ the underlying reason behind a practice was indirectly discriminatory (UK)

Trefwoorden Race discrimination, Discrimination on the grounds of religion or belief, Indirect discrimination, Underlying reason for PCP
Auteurs Anna Bond
SamenvattingAuteursinformatie

    The Court of Appeal (‘CoA’) has held that there was no indirect discrimination where the underlying reason behind a ‘provision, criterion or practice’ (‘PCP’) operated by an employer was not discriminatory. The claim of indirect discrimination was brought by Mr Naeem, who is employed by the Prison Service as a full-time imam at HMP Bullingdon. Until 2002, the Prison Service employed only Christian chaplains full-time due to a lack of demand for chaplains of other faiths (who were employed on a sessional basis only). From 2002, it started to hire full-time Muslim as well as Christian chaplains due to an increase in the number of Muslim prisoners.
    The prison system’s pay scale rewards length of service and pay rises are linked to both performance and length of full-time service. Mr Naeem argued that this had a disproportionate negative effect on Muslims, as they could not have been employed for as long as Christians. The CoA rejected this claim, based on the fact that the underlying reason for the difference was the lack of demand for Muslim chaplains before 2002, and that this was not discriminatory.
    This case follows the 2015 CoA case of Essop v Home Office [2015] EWCA Civ 609, which was the first case to add in this extra layer to the indirect discrimination test. According to these cases, a claimant must now show not only that a particular practice particularly disadvantaged them, but also why this is the case. In both cases, appeals have been made to the Supreme Court and these are expected to be heard together later this year.


Anna Bond
Anna Bond is an associate at Lewis Silkin LLP: www.lewissilkin.com.
Case Reports

2016/25 Prohibition against displaying religious symbols breaches anti-discrimination legislation for lack of proportionality (BE)

Trefwoorden Discrimination on the grounds of religion or belief
Auteurs Gautier Busschaert
SamenvattingAuteursinformatie

    A general prohibition against displaying religious, political and philosophical symbols constitutes indirect discrimination which fails to meet the proportionality requirement. In this case the court took account of the fact that it was possible for the employer to distinguish between back-office and front-office work (the claimant worked in a back office position) and also because of the absence of complaints by colleagues or clients and the absence of any attempt by the claimant to encourage other women to wear a headscarf.


Gautier Busschaert
Gautier Busschaert is a lawyer with Van Olmen & Wynant in Brussels, www.Vow.be.
Case Reports

2016/26 Dismissal of an employee with a disabled child was not discriminatory by association (DK)

Trefwoorden Associative disability discrimination
Auteurs Mariann Norrbom
SamenvattingAuteursinformatie

    It was neither direct nor indirect discrimination when a municipality dismissed a childminder with a disabled child, since the decision to dismiss was based on the interests of safeguarding children in the municipality’s childminding services, by not taking them out of their usual environment and placing them with a childminder they did not know.


Mariann Norrbom
Mariann Norrbom is a partner of Norrbom Vinding in Copenhagen, www.norrbomvinding.com.

    Following the latest case law of the Supreme Court of Lithuania, it is not enough to state that an employee cannot work for a competitor during their employment. It is necessary to pay compensation in order for the non-compete obligation to be legally enforceable, because of the onerous nature of the obligation.


Inga Klimašauskienė
Inga Klimašauskienė is an Associate Partner at GLIMSTEDT in Vilnius, www.glimstedt.lt.

    An employer that fails to comply with an occupational doctor’s recommendation regarding an employee’s health, as it relates to his job, is in breach of its health and safety obligations.


Delphine Levy Karcenty
Delphine Levy Karcenty is an avocat with Jeantet in Paris, www.jeantet.fr.

    Article 60(1)(g) of the Romanian Labour Code does not allow an employer to dismiss trade union leaders for reasons other than disciplinary misconduct or judicial reorganisation, dissolution or bankruptcy of the employer. The Constitutional Court has recently ruled that Article 60(1)(g) is unconstitutional.


Andreea Suciu
Andreea Suciu is Head of Employment & Pensions with Noerr in Bucharest, www.noerr.com.

    The Supreme Court in this case establishes conditions to be met in order for the member of a Board of Directors to qualify as a self-employed “entrepreneur”. In light of these conditions, Directors must be considered to have the status of “individual contractor”, obligating them to pay increased social security contributions.


Marcin Wujczyk Ph.D.
Marcin Wujczyk, Ph.D., is a partner with Ksiazek & Bigaj in Krakow, www.ksiazeklegal.pl.

    The employee, a public servant, criticised her employer’s director in an email that she sent all of her co-workers. The email made its way into a newspaper. She was dismissed. She challenged her dismissal successfully: the Supreme Court, weighing the employee’s right to freedom of speech against the employer’s right to protect its reputation and business interests, held the dismissal to be unfounded.


Nives Slemenjak
Nives Slemenjak is an associate at Schoenherr, in Ljubljana: www.schoenherr.eu.

    A decision issued by the Constitutional Court on 3 March 2016 upholds a High Court decision on whether evidence obtained through video surveillance at the work place without previously informing the employee or the works council of the recording infringes employees’ privacy. The existence of cameras in the workplace was only made known via a sticker on the shop window, but the Constitutional Court found that it provided sufficient information to employees. The Court found that, as there was a prior suspicion of theft by the employee, temporary recording of the cashier area was lawful and did not require prior consent. The judgment sets out the criteria to be used to determine a fair balance between the competing interests of employee privacy and the employer’s right to compliance.


Sonia Cortes
Sonia Cortes is a partner with Abdón Pedrajas & Molero in Barcelona, www.abdonpedrajas.com. Special thanks to Isabel Ruano and Carla Baussa for their help in preparing this case report.
Case Reports

2016/33 Supreme Court clarifies rules on redundancy selection methods (NO)

Trefwoorden Redundancy selection
Auteurs Tore Lerheim en Ole Kristian Olsby
SamenvattingAuteursinformatie

    The basic rule in Norwegian law is that an employer planning to reduce headcount must apply the rules for selecting those to be dismissed (based on seniority, qualifications, personal circumstances, etc.) to the entire workforce within the relevant legal entity. However, there are circumstances under which the employer may limit the pool of employees within which to apply those rules. In this case, the employer was justified in limiting that pool to one employee, thereby avoiding the need to make a selection.


Tore Lerheim
Tore Lerheim and Ole Kristian Olsby are partners with Homble Olsby advokatfirma in Oslo, www.Homble-olsby.no.

Ole Kristian Olsby

    A transferee cannot claim the value of leave accrued but not taken by transferred employees before a transfer from the transferor.


Amber Zwanenburg
Amber Zwanenburg is a lecturer of Labour Law at the Erasmus University of Rotterdam.
ECJ Court Watch

ECJ 21 January 2016, case C-515/14 (Cyprus), freedom of movement

European Commission – v – Republic of Cyprus

Trefwoorden Freedom of movement
Samenvatting

    Cypriot law on civil servants’ pensions violates EU law.

ECJ Court Watch

ECJ 21 January 2016, case C-453/14 (Knauer), free movement – social security

Vorarlberger Gebietskrankenkasse – v – Alfred Knauer and Landeshauptmann von Vorarlsberg – v – Rudolf Mathis, Austrian case

Trefwoorden Free movement, Social security
Samenvatting

    Austrian statutory pension benefits and Liechenstein occupational pension benefits are “equivalent”.

ECJ Court Watch

ECJ 25 February 2016, case C-299/14 (Garcia-Nieto), free movement – social security

Vestische Arbeit Jobcenter Kreis Recklinghausen – v – Jovanna García-Nieto, German case

Trefwoorden Free movement, Social security
Samenvatting

    An unemployed EU citizen moving to another Member State is not entitled to social assistance in that State for the first three months.

ECJ Court Watch

ECJ 7 April 2016, case C-5/15 (Büyüktipi), legal expenses insurance

Gökhan Büyüktipi – v – Achmea Schadeverzekeringen NV and Stichting Achmea Rechtsbijstand, Dutch case

Trefwoorden Legal expenses insurance
Samenvatting

    A legal expenses insurance policy must cover the cost of a lawyer of choice, even in administrative proceedings (judgment largely identical to that in Massar, also summarised in this edition of EELC).

ECJ Court Watch

ECJ 7 April 2016, case C-284/15 (ONEm), free movement – social insurance

Office national de l’emploi (ONEm) – v – M and M – v – ONEm and Caisse auxiliaire de paiement des allocations de chomage (CAPAC), Belgium case

Trefwoorden Free movement, Social insurance
Samenvatting

    An EU citizen moving to another Member State, in order to qualify for unemployment benefits there, must meet the requirements for entitlement under the law of his new State of residence.

ECJ Court Watch

ECJ 7 April 2016, case C-315/14 (Marchon Germany), commercial agency

Marchon Germany GmbH – v – Yvonne Karaszkiewicz, German case

Trefwoorden Commercial agency
Samenvatting

    This case involves the right of a self-employed commercial agent, following termination of the contract with his principal, to an indemnity for having brought in new business. This right may not be interpreted restrictively.

ECJ Court Watch

ECJ (Grand Chamber) 19 April 2016, case C-441/14 (Ajos), age discrimination

Dansk Industri (DI), acting on behalf of Ajos A/S – v – Estate of Karsten Eigil Rasmussen, Danish case

Trefwoorden Age discrimination
Samenvatting

    A court applying national law that is at odds with the principle of non-discrimination on grounds of age must disapply that law, even if it is unequivocal and even where the dispute is between private parties.

ECJ Court Watch

ECJ 7 April 2016, case C-460/14 (Massar), legal insurance

Johannes E.A. Massar – v – DAS Nederlandse Rechtsbijstand Verzekeringsmaatschappij NV, Dutch case

Trefwoorden Legal insurance
Samenvatting

    A legal expenses insurance policy must cover the cost of a lawyer of choice, even in administrative proceedings (judgment almost identical to that in Büyüktipi, also summarised in this edition of EELC).

ECJ Court Watch

ECJ 2 June 2016, case C-122/15 (C), age discrimination

C – v – Finland, Finish case

Trefwoorden Age discrimination
Samenvatting

    National tax law (which the claimant in this case considered to be age discriminatory) does not fall within the scope of Directive 2000/78.

ECJ Court Watch

EFTA Court 16 December 2015, case E-5/15 (M’bye), working time

Matja Kumba T M’bye and Others – v – Stiftelsen Fossumkollektivet, Norwegian case*

Trefwoorden Working time
Samenvatting

    An 84-hour working week imposed on resident therapists at a care home may in certain circumstances be compatible with Directive 2003/88.

ECJ Court Watch

Case C-548/15. Age discrimination

J.J. de Lange – v – Staatssecretaris van Financiën, reference lodged by the Dutch Hoge Raad on 21 October 2015

Trefwoorden Age discrimination
ECJ Court Watch

Case C-631/15. Fixed-term work

Carlos Alvarez Santirso – v – Consejería de Educación, Cultura y Deporte del Principado de Asturias, reference lodged by the Spanish Juzgado Contencioso-Administrativo de Oviedo on 27 November 2015

Trefwoorden Fixed-term work
ECJ Court Watch

Case C-668/15. Racial discrimination

Jyske Finans A/S – v – Ligebehandelingsnaevnet, acting on behalf of Ismar Huskic, reference lodged by the Danish Vestre Landsret on 14 December 2015

Trefwoorden Racial discrimination
ECJ Court Watch

Case C-20/16. Free movement – Tax

Wolfram Bechtel, Marie-Laure Bechtel – v – Finanzamt Offenburg, reference lodged by the German Bundesfinanzhof on 15 January 2016

Trefwoorden Free movement, Tax
ECJ Court Watch

Cases C-680/15 and C-681/15. Transfer of undertakings

Asklepios Kliniken Langen-Seligenstadt Gmbh – v – Ivan Felja (C-680/15) and Vittoria Graf (C-681/15), reference lodged by the German Bundesarbeitsgericht on 17 December 2015

Trefwoorden Transfer of undertakings
ECJ Court Watch

Case C-27/16. Sex discrimination

Angel Marinkov – v – Presedatel na Darzhavna agentsia za balgarite v chuzbina, reference lodged by the Bulgarian Administrativen sad – Sofia-grad on 18 January 2016

Trefwoorden Sex discrimination
ECJ Court Watch

Case C-97/16. Self-employment

José María Pérez Retamero – v – TNT Express et al, reference lodged by the Spanish Juzgado de lo Social No 3 de Barcelona on 17 February 2016

Trefwoorden Self-employment