The Danish Supreme Court has upheld the decision from the Danish Eastern High Court (reported in EELC 2017/26) on the implementation of the Working Time Directive to the effect that an ‘intervention act’ can be deemed to be a collective agreement within the meaning of Article 18 of the Working Time Directive. |


European Employment Law Cases
Meer op het gebied van Arbeidsrecht
Over dit tijdschriftMeld u zich hier aan voor de attendering op dit tijdschrift zodat u direct een mail ontvangt als er een nieuw digitaal nummer is verschenen en u de artikelen online kunt lezen.
Editorial |
|
Case Reports |
|
Trefwoorden | Collective agreements |
Auteurs | Christian K. Clasen |
SamenvattingAuteursinformatie |
Case Reports |
|
Trefwoorden | Disability discrimination |
Auteurs | Gautier Busschaert |
SamenvattingAuteursinformatie |
The Labour Court of Brussels treats the long-term effects of cancer as a disability in accordance with the case law of the ECJ. This has triggered an obligation on employers to consider making reasonable adjustments before looking at dismissal. |
Case Reports |
|
Trefwoorden | Disability discrimination |
Auteurs | Emma Langhorn |
SamenvattingAuteursinformatie |
The Court of Appeal has confirmed that discrimination arising from disability had occurred when an employer dismissed an employee for misconduct which was connected to the employee’s disability, even though the employer had no knowledge of the connection. |
Case Reports |
|
Trefwoorden | Gender discrimination |
Auteurs | Ludivine Gegaden |
SamenvattingAuteursinformatie |
Two differently constituted Employment Appeal Tribunals (‘EATs’) have recently considered whether it is sex discrimination to pay men on parental leave less than women on maternity leave. In Capita, the EAT decided that it was not direct sex discrimination to fail to pay full salary to a father taking shared parental leave, in circumstances where a mother taking maternity leave during the same period would have received full pay. However in Hextall, the EAT has indicated that enhancing maternity pay but not pay for shared parental leave may give rise to an indirect sex discrimination claim by fathers. |
Case Reports |
|
Trefwoorden | Collective redundancies |
Auteurs | Andrzej Marian Swiatkowski |
SamenvattingAuteursinformatie |
In 2017, the ECJ delivered its judgment in the Socha case (C-149/16). This judgment, about the Collective Redundancy Directive (98/59/EC), highlights the contradictions between the Directive and Polish law and demonstrates some of consequences such a judgment can lead to. |
Case Reports |
|
Trefwoorden | Free movement, Work and residence permit, Other forms of free movement |
Auteurs | Jan-Pieter Vos |
SamenvattingAuteursinformatie |
The Amsterdam Court of First Instance had contemplated asking certain preliminary questions to the ECJ about the EU rights of UK citizens residing outside the UK (see EELC 2018/18), but the Court of Appeal has now refused this, considering the underlying claims to be too vague. |
Case Reports |
|
Trefwoorden | Temporary agency work, Other forms of discrimination |
Auteurs | Kajsa Louise Tafjord Normannseth en Stein Evju |
SamenvattingAuteursinformatie |
Directive 2008/104/EC (Temporary Agency Work Directive) is implemented by means of the Norwegian Working Environment Act and provides for equal pay between regular workers and temporary agency workers. The Supreme Court has held that, in domestic law, the concept of ‘pay’ includes allowances for travel time and therefore a temporary agency worker was entitled to the same allowance as his permanent colleagues. |
Case Reports |
|
Trefwoorden | Transfer of undertakings, Employment terms |
Auteurs | Othmar K. Traber |
SamenvattingAuteursinformatie |
In the aftermath of the ECJ’s ruling in the Asklepios case (C-680/15), the German Federal Employment Court (Bundesarbeitsgericht, hereinafter: BAG) held a dynamic referral clause valid following a transfer. |
Case Reports |
|
Trefwoorden | Transfer, Employment terms |
Auteurs | Shamy Sripal |
SamenvattingAuteursinformatie |
The transferee in this case attempted to replace the transferred employees’ salaries with lower in accordance with its collective agreement, compensating for the reduction by means of a ‘personal allowance’, which it then proceeded to reduce by a set percentage based on the age of the employees each time there was a wage increase. The court held that this ‘basket comparison’ method of harmonising the wages of old and new staff was at odds with Directive 2001/23, rejecting the transferee’s argument that the ‘ETO’ provision in that directive permits such an amendment of the terms of employment. |
Case Reports |
|
Trefwoorden | Working time |
Auteurs | Janne Nurminen |
SamenvattingAuteursinformatie |
In its follow-up judgment to the ECJ’s preliminary ruling in the Hälvä case (C-175/16), the Finnish Supreme Court has held that ‘relief parents’ relieving foster parents in a child protection association on the latter’s holidays fall within the scope of the Finnish Working Hours Act even though the work was performed in the homes provided by the association for the children to live in. Therefore, the relief parents were entitled to the rights guaranteed by the Act (subject to the fact that some of their claims had expired). |
Case Reports |
|
Trefwoorden | Working time |
Auteurs | Marianne Jenum Hotvedt en Anne-Beth Engan |
SamenvattingAuteursinformatie |
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. |
Case Reports |
|
Trefwoorden | Working time |
Auteurs | Dora Joana |
SamenvattingAuteursinformatie |
The Oporto Court of Appeal held that the employee’s availability 24 hours per day, 6 days per week, breaches the employee’s right to rest. However, such breach does not qualify the availability periods as overtime. The Court also found that the continuous use of a GPS system breached the employee’s right to privacy. |
Case Reports |
|
Trefwoorden | Working time |
Auteurs | Andreea Suciu |
SamenvattingAuteursinformatie |
The Supreme Court has ruled that it is at the discretion of the competent national court to assess whether periods of stand-by time are working time. In doing so, the court should apply Romanian law as interpreted in the light of ECJ case law. |
Rulings |
|
Samenvatting |
An employer may lodge a counterclaim at the forum chosen by the employee even if the counterclaim does not arise in relation to its own legal rights but is assigned to it after the employee has commenced proceedings. |
Rulings |
|
Trefwoorden | Insolvency |
Samenvatting |
An employee is entitled to protection against insolvency if s/he is entitled to severance pay on the basis that the employer has changed the workplace, so forcing the employee to choose between relocating and ending the employment relationship - but before paying the severance in full, the employer becomes insolvent. |
Rulings |
|
Trefwoorden | Social insurance |
Samenvatting |
|
Rulings |
|
Samenvatting |
CBA-led transfer may constitute transfer of undertaking. |
Rulings |
|
Trefwoorden | Social Insurance |
Samenvatting |
|
Rulings |
|
Trefwoorden | Social insurance |
Samenvatting |
|
Rulings |
|
Trefwoorden | Free movement |
Samenvatting |
|
Rulings |
|
Trefwoorden | Gender discrimination, Working time |
Samenvatting |
Even if a breastfeeding worker only works for part of her shift at night, the rules on the health and safety of pregnant and breastfeeding workers and those having recently given birth set out in Directive 92/85 apply, meaning that an assessment of her individual situation is necessary. If the worker brings a claim before the court, once she has provided a prima facie case of discrimination, the burden of proof switches to the employer. In other words, reversal of the burden of proof is also applicable to Article 7 (night work) of Directive 92/85/EEC. |
Rulings |
|
Trefwoorden | Gender discrimination, Working time |
Samenvatting |
Bridging assistance paid to a worker who loses his or her job by reason of redundancy, but ceasing once the worker becomes eligible to receive retirement benefits, is discriminatory under Directive 2000/78 if this moment comes earlier for disabled than non-disabled workers. |
Rulings |
|
Trefwoorden | Fixed-term work, Other forms of discrimination |
Samenvatting |
A system, as exists in Italy, that only-partially counts service under fixed-term contracts for the purpose of classifying staff in grades, is compatible with the Framework Agreement on fixed-term work, as there was an objective justification. |