Zoekresultaat: 111 artikelen

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Tijdschrift European Employment Law Cases x Jaar 2017 x
ECJ Court Watch

ECJ 27 April 2017, C-620/15 (A-Rosa Flussschiff), Free movement, social insurance

A-Rosa Flussschiff GmbH – v – Union de recouvrement des cotisations de sécurité sociale et d’allocations familiales d’Alsace (URSSAF), venant aux droits de l’URSSAF du Bas-Rhin and Sozialversicherungsanstalt des Kantons Graubünden, French case

Tijdschrift European Employment Law Cases, Aflevering 2 2017
Trefwoorden free movement: social insurance
Samenvatting

    An E101 certificate, issued by the institution designated by the competent authority of a Member State under Article 14(2)(a) of Regulation No 1408/71, is binding on both the social security institutions of the Member State in which the work is carried out and the courts of that Member State – even when it is found by those courts that the conditions under which the workers carried out their activities did not fall within the scope of the provisions of Regulation no 1408/71.

    Unlawful discrimination cannot be found even for morbid obesity under the German Equal Treatment Act.


Paul Schreiner
Paul Schreiner is a partner with Luther Rechtsanwaltsgesellschaft mbH in Essen, www.luther-lawfirm.com.

    The Employment Appeal Tribunal (‘EAT’) considers the Equality Act – and to some extent the Equal Treatment Directive – and gives guidance about harassment and victimisation claims as well as on principals’ liability for acts of their agents. In a decision that declines to expand the scope of harassment claims, the EAT has decided, in particular, that it is not enough for claimants alleging harassment to simply assert that they are disabled, without meeting the definition of disability or falling into another protected situation.


Anna Sella
Anna Sella is a Senior Associate at Lewis Silkin LLP.
ECtHR Court Watch

ECtHR 26 January 2017, application no. 42788/06, Right to fair hearing and right to respect for private and family life

Surikov – v – Ukraine, Ukrainian case

Tijdschrift European Employment Law Cases, Aflevering 2 2017
Trefwoorden Right to respect for private and family life
Samenvatting

    ECtHR concludes that there has been a violation of Article 8 (right to respect for private and family life) in the case of retention and disclosure of an employee’s mental-health data and its use in deciding on employees’ applications for promotion.

ECJ Court Watch

ECJ 2 March 2017, case C-496/15 (Eschenbrenner), Freedom of movement

Alphonse Eschenbrenner – v – Bundesagentur für Arbeit, German case

Tijdschrift European Employment Law Cases, Aflevering 2 2017
Trefwoorden Freedom of movement
Case Reports

2017/23 Suspension of a recovery plan is not a transfer-triggering event (BU)

Tijdschrift European Employment Law Cases, Aflevering 2 2017
Trefwoorden Transfer of undertaking, Employees who transfer/refuse to transfer
Auteurs Kalina Tchakarova
SamenvattingAuteursinformatie

    The Bulgarian Supreme Court ruled to the effect that the Bulgarian Labour Code (‘BLC’) provides for the automatic transfer of employees only in the circumstances set out in the BLC. The employment protection given by the BLC cannot either be broadened or narrowed. The suspension of a recovery plan which leads to the restoration of insolvency proceedings (and therefore the return of the company from the transferee that had been executing the failed recovery plan back into the hands of the transferor) did not lead to the automatic transfer of employment.


Kalina Tchakarova
Kalina Tchakarova is a partner at Djingov, Gouginski, Kyutchukov and Velichkov, Sofia, www.dgkv.com.
ECJ Court Watch

Case C-472/16. Transfer of undertakings

Jorge Luis Colino Sigüenza – v – Ayuntamiento de Valladolid, In-pulso Musical, Sociedad Cooperativa, reference lodged by the Spanish Tribunal Superior de Justicia de Castilla y León on 24 August 2016

Tijdschrift European Employment Law Cases, Aflevering 1 2017
Trefwoorden Transfer of undertakings
ECJ Court Watch

ECJ 15 December 2016, joined cases C-401/15 to C-403/15 (Depesme), Free movement, social insurance

Noémie Depesme (C-401/15), Saïd Kerrou (C-401/15), Adrien Kauffmann (C-402/15) and Maxime Lefort (C-403/15) – v – Ministre de l’Enseignement supérieur et de la Recherche, Luxembourgian case

Tijdschrift European Employment Law Cases, Aflevering 1 2017
Trefwoorden Free movement, Social insurance
Samenvatting

    These cases concern the refusal by Luxembourg to grant financial aid to students studying in Luxembourg whilst living in France or Belgium, when they would be entitled to such aid under Regulation 492/2011 on free movement (pursuant to Article 45 TFEU), based on their family circumstances, were it not that the person employed in Luxembourg was not their father but their stepfather. The ECJ found in favour of the students.

ECtHR Court Watch

ECtHR 25 October 2016, application nos. 45197/13, 53000/13 and 73404/13, Diplomatic immunity in labour relations

Radunović and Others – v – Montenegro, Montenegronian case

Tijdschrift European Employment Law Cases, Aflevering 1 2017
Trefwoorden Diplomatic immunity in labour relations

    Following consultations with its employees in accordance with the Finnish Codetermination Act (334/2007), a company informed the employees that it would close down its current office premises and move its operations, including all of its employees, to another location. An employee, whose employment contract expressly stipulated the location of the old office as the fixed place of work, refused to transfer and did not arrive at the new place of work after the transfer. The company considered the employee’s absence unjustified and terminated her employment with immediate effect. The Supreme Court held that an employer can, as an alternative to termination of employment, unilaterally amend material terms of employment provided it notifies the employees sufficiently clearly of the terms being amended, the time when the new terms would come into effect, the grounds for termination, and the consequences of not accepting the amendments.


Kaj Swanljung
Kaj Swanljung and Janne Nurminen are respectively a Senior Counsel and a Senior Associate with Roschier in Helsinki, www.roschier.com.

Janne Nurminen

    A claim for compensation for discrimination was not excluded simply because the applicant did not have the ‘objective qualifications’ necessary for the job. According to the German General Equal Treatment Act (the ‘Allgemeines Gleichbehandlungsgesetz’, or ‘AGG’), what is necessary for a compensation claim is a ‘comparable situation’. According to the latest decision of the German Federal Labour Court (the ‘Bundesarbeitsgericht’, or ‘BAG’) this can occur even if the applicant does not fulfill the general requirements to do the job.


Paul Schreiner
Paul Schreiner and Nina Stephan are respectively partner and associate with Luther Rechtsanwaltgesellschaft MbH, www.luther-lawfirm.com.

Nina Stephan
Paul Schreiner and Nina Stephan are respectively partner and associate with Luther Rechtsanwaltgesellschaft MbH, www.luther-lawfirm.com.
ECJ Court Watch

Case C-474/16. Social security

The public prosecutor, Belu Dienstleistung GmbH & Co KG, Stefan Nikless, reference lodged by the French Cour d’appel de Colmar on 29 August 2016

Tijdschrift European Employment Law Cases, Aflevering 1 2017
Trefwoorden Social security
Case Reports

2017/1 Early retirement pension cannot justify age discrimination (AU)

Tijdschrift European Employment Law Cases, Aflevering 1 2017
Trefwoorden Age discrimination
Auteurs Peter C. Schöffmann en Andreas Tinhofer
SamenvattingAuteursinformatie

    The Austrian Supreme Court has held that the selection of employees for redundancy because of their entitlement to an early retirement pension constitutes unfair dismissal on grounds of direct age discrimination. Although it was accepted that individual employers (here the Austrian Broadcasting Corporation) can pursue a legitimate aim within the meaning of Article 6(1) of Directive 2000/78/EC, the means to achieve that aim were not considered appropriate and necessary. The Court stressed that a balance must be struck between the interests of older and younger employees, taking into account that it is generally easier for younger employees to find a new job. In the case at hand, however, the employer had not managed to show that its redundancy selection programme met that requirement.


Peter C. Schöffmann
Peter C. Schöffmann and Andreas Tinhofer are respectively an associate and partner at MOSATI Rechtsanwälte, www.mosati.at.

Andreas Tinhofer
Peter C. Schöffmann and Andreas Tinhofer are respectively an associate and partner at MOSATI Rechtsanwälte, www.mosati.at.

    A Spanish Supreme Court decision issued on 17 October 2016 (no. 848/2016) declares employee terminations void because the employer failed to respect the proper collective redundancy procedures based on the thresholds provided by EU Directive 98/59. The thresholds in the Directive refer to the number of employees at the establishment, whereas thresholds under Spanish law refer to the whole company. In implementing the Directive, Spanish law had aimed at being more favourable to employees, but this did not happen on the facts of this case.


Sonia Cortés
Sonia Cortés is a partner with Abdón Pedrajas & Molero, www.abdonpedrajas.com.
ECJ Court Watch

ECJ 24 November 2016, case C 454/15 (Webb-Sämann), Social policy

Jürgen Webb-Sämann – v – Christopher Seagon, German case

Tijdschrift European Employment Law Cases, Aflevering 1 2017
Trefwoorden Social policy
Samenvatting

    Under Article 8 of Directive 2008/94, if an employer becomes insolvent in circumstances where it previously withheld funds from an employee’s salary to pay into an occupational pension scheme – but then failed to make those payments – there is no requirement to exclude those funds from the scope of insolvency proceedings.

ECJ Court Watch

ECJ 1 February 2017, case C-430/15 (Tolley), Free movement, social insurance

Secretary of State for Work and Pensions – v – Tolley, British case

Tijdschrift European Employment Law Cases, Aflevering 1 2017
Trefwoorden Free movement, Social insurance
Samenvatting

    Mrs Tolley, a disabled UK national, emigrated from the UK to Spain in 2002, at age 50. Before she left the UK, because she was unable to prepare a meal for herself, she was in receipt of DLA (disability living allowance) benefits. These benefits were stopped when she left the UK, because under UK law, only residents are eligible. Mrs Tolley appealed successfully to the First-tier Tribunal. Its decision was upheld by the Upper Tribunal and the Court of Appeal. The Secretary of State appealed to the Supreme Court, which referred questions to the ECJ, all relating to Regulation 1408/71 on the coordination of social security legislation within the EU (now Regulation 883/2004). The ECJ found in Mrs Tolley’s favour.

Case Reports

2017/10 Uber drivers found to be workers (UK)

Tijdschrift European Employment Law Cases, Aflevering 1 2017
Trefwoorden Employment Tribunal
Auteurs Bethan Carney
SamenvattingAuteursinformatie

    In a much publicised case, Uber drivers have won a first instance employment tribunal finding that they are ‘workers’ and not self-employed contractors. This decision means that they are entitled to basic protections, such as the national minimum wage, paid holiday (under the Working Time Directive) and protection against detriment for ‘blowing the whistle’ on wrong doing. The decision could have substantial financial consequences for Uber, which has around 40,000 drivers in the UK but Uber has already confirmed that it will appeal the decision, so we are unlikely to have a final determination on this question for some time.


Bethan Carney
Bethan Carney is a lawyer at Lewis Silkin LLP: www.lewissilkin.com.
ECJ Court Watch

ECJ 21 December 2016, joined cases C-508/15 (Ucar) and C-509/15 (Kilic), Free movement, residence

Sidika Ucar and Recep Kilic – v – Land Berlin, German case

Tijdschrift European Employment Law Cases, Aflevering 1 2017
Trefwoorden Free movement, Residence
Samenvatting

    These cases relate to Decision 1/80 of the ‘Association Council’, a body established pursuant to the 1963 Association Agreement between Turkey and the EU. In both cases, the German immigration authorities had rejected an application to extend the residence permit of a Turkish national but the ECJ found they had a right of residence.

    In a precedent-setting case, the Danish Supreme Court recently ruled that a pregnant employee under notice, who claimed discrimination because she had not been reassigned to a vacant position that arose during the notice period, was not discriminated against.


Mariann Norrbom
Mariann Norrbom is a lawyer at Norrbom Vinding in Copenhagen, www.norrbomvinding.com.

    The Curia (Hungarian Supreme Court) stated in its ruling that length of service is not a protected characteristic under discrimination law. Length of employment cannot be considered as a core feature of the individual based on which he or she would belong to a specific group, as it is a result of his or her own actions. It therefore cannot be treated as a ‘miscellaneous’ ground for the purposes of the Hungarian Equal Treatment Act. Further, length of service cannot be linked to age discrimination. The length of service of an employee is not directly connected to age, therefore treatment of an employee based on length of service with a specific organisation cannot be considered age discriminatory.
    A claim based on discrimination must be supported by a comparator. Employees with different educational backgrounds and jobs with different the educational requirements, are not comparable for the purposes of equal treatment law.


Gabriella Ormai
Gabriella Ormai is the managing partner of the Budapest office of CMS Cameron McKenna LLP (www.cms-cmck.com).
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