Zoekresultaat: 42 artikelen

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Case Reports

2020/6 Supreme Court judgment on the concept of comparable permanent employees (DK)

Tijdschrift European Employment Law Cases, Aflevering 1 2020
Trefwoorden Fixed-term work, Other forms of discrimination
Auteurs Christian K. Clasen
SamenvattingAuteursinformatie

    In a recent case on fixed-term employment, the Danish Supreme Court addressed the question of what constitutes a comparable permanent employee. The Supreme Court ruled that four employees, who worked in a government agency, were not comparable with the agency’s permanent employees and for this reason they had not been discriminated against on the grounds of their fixed-term contracts.


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

    The European Commission recently conducted a public consultation on the measures that may be taken to ensure the full application of the principle of equal pay between women and men. Its evaluation report is expected before the end of this year. The new Swiss legislation on monitoring and disclosure of the gender pay gap may be inspiration for future EU initiatives in this area.


Sara Rousselle-Ruffieux
Sara Rousselle-Ruffieux is an attorney-at-law at Lenz & Staehelin, Geneva, Switzerland.
Case Reports

2019/43 Dismissal after childbirth-related leave (DK)

Tijdschrift European Employment Law Cases, Aflevering 4 2019
Trefwoorden Gender discrimination
Auteurs Christian K. Clasen
SamenvattingAuteursinformatie

    The Danish Western High Court has ruled that the dismissal of an employee shortly after returning from childbirth-related leave did not constitute discrimination within the meaning of the Danish Act on Equal Treatment of Men and Women.


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

2019/27 No additional public holiday pay for working on Good Friday – Discrimination based on religion? (AT)

Tijdschrift European Employment Law Cases, Aflevering 3 2019
Trefwoorden Religious discrimination
Auteurs Dr. Jana Eichmeyer LL.M en Dr. Karolin Andréewitch
SamenvattingAuteursinformatie

    Under a former Austrian law effective until February 2019, Good Friday was a public holiday only for a minority belonging to certain Christian Evangelical churches. In the case at hand, Austrian courts had to assess if this regulation and its legal consequences were valid under European Union law, or if they constituted discrimination.


Dr. Jana Eichmeyer LL.M
Dr. Jana Eichmeyer, LL.M is a lawyer at Eisenberger & Herzog in Vienna (www.ehlaw.at).

Dr. Karolin Andréewitch
Dr. Karolin Andréewitch is a lawyer at Eisenberger & Herzog in Vienna (www.ehlaw.at).

    In a recent judgment, the Danish Supreme Court has established that it does not constitute unlawful discrimination under the Anti-Discrimination Act when a disabled employee is dismissed. The employee had a publicly funded reduced-hours job, but reached the statutory retirement age for which reason the public funding lapsed, and that was the reason for the dismissal.


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

    Austrian courts have to deal with an increasing number of cases concerning dismissal on grounds of (alleged) discrimination. The particular challenge is to a draw a conclusive distinction between the concepts of disability and sickness.


Peter C. Schöffmann
Peter C. Schöffmann is a teaching and research associate at the Institute for Austrian and European Labour Law and Social Security Law at Vienna University of Economics and Business, www.wu.ac.at/en/ars.
Case Reports

2019/13 A long-term functional impairment? (DK)

Tijdschrift European Employment Law Cases, Aflevering 2 2019
Trefwoorden Disability Discrimination
Auteurs Christian K. Clasen
SamenvattingAuteursinformatie

    An employee’s functional impairment, which at the time of dismissal had had a duration of 11 months and with an uncertain prognosis, was not deemed a long-term one. For that reason, the Danish Western High Court found that the employee was not disabled within the meaning of the Anti-Discrimination Act or Directive 2000/78 establishing a general framework for equal treatment in employment and occupation.


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

    The Finnish Supreme Court held that a transfer of undertaking had taken place in a situation where no contract of transfer was concluded.


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

    The Danish Western High Court recently ruled that the Danish Act on Employees’ Rights on Transfers of Undertakings did not apply to two municipalities’ repatriation of home care services after a private-sector service provider went bankrupt.


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

    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.

    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.
Case Reports

2018/32 When is travelling time working time? (NO)

Tijdschrift European Employment Law Cases, Aflevering 3 2018
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.


Marianne Jenum Hotvedt
Marianne Jenum Hotvedt is an associate professor at the Department of Private law, University in Oslo. She got her PhD on the thesis ‘The Employer Concept’.

Anne-Beth Engan
Anne-Beth Engan is a senior associate with the law firm Selmer AS in Oslo.
Case Reports

2018/22 What is a collective agreement? Part two (DK)

Tijdschrift European Employment Law Cases, Aflevering 3 2018
Trefwoorden Collective agreements
Auteurs Christian K. Clasen
SamenvattingAuteursinformatie

    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.


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

    The Irish Court of Appeal recently clarified the obligations of employers towards employees with a disability.
    The judgment suggests that an employer is not required to alter the duties of a position held by an employee with a disability in order to accommodate that employee’s return to work if the duties, which the employee is no longer capable of performing, are considered essential to the employee’s position.


Lucy O’Neill
Lucy O’Neill is an attorney at law at Mayson Hayes & Curran.

    The Danish Supreme Court has ruled that the Danish authorities may have incurred liability by failing to act sufficiently quickly to amend the Danish Holiday Act to align it with EU law.


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

    The Employment Appeal Tribunal (EAT) has adopted a new approach to the burden of proof in discrimination cases. Up to now, the courts have held that the claimant must, in the first instance, prove sufficient facts from which (in the absence of any other explanation) an inference of discrimination can be drawn. Once the claimant has established these facts, the burden of proof shifts to the respondent to show that he or she did not breach the provisions of the Act. The EAT has now said that courts should consider all of the evidence (both the claimant’s and the respondent’s) when making its finding of facts, in order to determine whether or not a prima facie case of discrimination has been made out. It is then open to the respondent to demonstrate that there was no discrimination. This is an important development in how the burden of proof is dealt with in discrimination cases. It clarifies that it is not only the claimant’s evidence which will be scrutinised in determining whether the burden of proof has shifted, but also the respondent’s evidence (or lack thereof).


Hannah Price
Hannah Price is a Legal Director at Lewis Silkin LLP.

    A privately operated public bus service was transferred back to the municipality. This constituted the transfer of an undertaking even though the municipality did not buy the buses from the bus operator.


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

    After the transfer of an undertaking (or part of one) the new employer cannot modify the transferred workers’ wages without their consent. This decision of the Belgian Supreme Court of 14 November 2016 leaves no leeway to the transferee to unilaterally substitute certain contractual elements with new ones, even if the new salary scheme is more advantageous overall.


Cecilia Lahaye
Cecilia Lahaye is an attorney at Van Olmen & Wynant in Brussels (www.vow.be).
Case Reports

2017/26 What is a collective agreement? (DK)

Tijdschrift European Employment Law Cases, Aflevering 3 2017
Trefwoorden Collective labour law, Collective agreements
Auteurs Christian K. Clasen
SamenvattingAuteursinformatie

    On 2 June 2017, the Danish Eastern High Court decided that a statutory intervention by government was sufficient to enable derogation from the Working Time Directive (2003/88). The Directive can be derogated from by a collective agreement and although the statutory intervention was not a collective agreement, the High Court found that it was not inconsistent with that requirement.


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

    On 6 December 2016, the Danish Supreme Court delivered its long-awaited judgment on the case of Ajos, addressing the issue of whether a private employer was entitled to refuse to make a redundancy payment in reliance on the former section 2a(3) of the Danish Salaried Employees Act or whether the general principle against discrimination on grounds of age needed to take precedence. It concluded that the employer was entitled to refuse to pay.


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