The Higher Administrative Court of Münster (Oberverwaltungsgericht, the ‘OVG’) has held that a minimum body height of 163 cm for applicants to the police service, irrespective of gender, is lawful. At least, this shall apply if the determination of a minimum body height standard is a suitability criterion for access to the police service. Minimum standards solely serve the purpose of ensuring fitness for service and result from a comprehensive investigation. The investigation in this case established that suitability for the police service can only be guaranteed from a height of 163 cm upwards.

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.

The German Federal Labour Court has held that it was justifiable for the employment of an actor to be limited in time because of the “type of work” involved and the fact that the work was with a film production company, even though the actor was given a number of fixed term employment contracts over around 18 years.

The German federal court for labour law matters, the Bundesarbeitsgericht (the ‘BAG’), has held that evidence cannot be used in a dismissal lawsuit if the employer has obtained it from long-term surveillance using keylogger-software. Employers must not keep their employees under constant surveillance and must therefore expect their legal position to be weak if they try to dismiss an employee based on findings from such monitoring. The court ruling preceded the ECtHR Barbulescu ruling of 5 September 2017 (featured in EELC 2017/4) in a similar case.

An acquired mother tongue is – at least indirectly – connected to a person’s origin and therefore also linked to ethnic origin. Claims based on the German General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz, the ‘AGG’) must be brought in writing within two months after knowledge of a possible discrimination. Time only starts to run for claims after the employer has provided an unsuccessful job applicant with a clear and definite statement that he or she has been rejected. The limitation period under the AGG will not be triggered by lapse of time only.

A clause in a collective bargaining agreement stipulating that overtime premiums for part time employees are only payable if their monthly working hours exceed those of a full-time employee is not discriminatory.

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

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.

An employee may bring a claim for invalid termination before the German Labour courts, irrespective of the law governing the employment relationship. In Germany, it is only possible for an employer to dismiss a severely disabled person if the competent state authority grants a permit enabling it to do so. However, this requirement is limited to those with employment agreements under German Law.

If a collective agreement grants older employees a higher vacation claim solely because of their age, a younger employee is entitled to the same number of days of leave.

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.

An employee who does not recover from illness during the calendar year in which he accrues paid leave (the ‘leave year’) and who continues to be incapable of taking that leave, loses the right to take it 15 months after the end of the leave year, i.e. on March 31 of the second calendar year following the leave year. If his employment terminates within that 15 month period, his entitlement to leave converts into a claim for payment in lieu, and as such, can be claimed by his heirs if he dies.

Important legal developments are often credited to court decisions. This contribution will firstly discuss the Australian High Court decision in the Mabo case as such. The legal implications of a decision are often emphasised, instead of the actual persons who started the case, as Dutch sociological research has shown. The article will secondly state that in the Mabo case the person Eddy Mabo and his Aboriginal companions were a lot more important. Not that one has to solely think of him and his clansmen as political activists who go to court to change the legal order. The analysis will show that Eddie Mabo c.s. represent a legal culture in its own right. That legal culture has a far much longer history than the two centuries of Anglo-Australian common law. Mabo came to the fore as someone who was entitled by Aboriginal law to bear witness of Aboriginal law. The fact that an Aboriginal actor as such is the pure actuality of law is hardly recognised by the Anglo-Australian legal culture.

The article How Law Manifests Itself in Australian Aboriginal Art will discuss two events at the Aboriginal Art Museum Utrecht from the perspective of a meeting between two artistic and legal cultures. The first event, on the art and law of the Spinifex people, will prove to be of a private law nature, whilst the second event, on the art and law of the Wik People, will show characteristics of international public law. This legal anthropological contribution may frustrate a pluralistic perspective with regard to the coexistence of Western law and Aboriginal law on the one hand and of Utrecht's Modern Art Museum and the presented Aboriginal Art on the other. It will show instead the self-evidence of art and law presented and their intertwined connection for the Aboriginal or indigenous peoples of Australia.

Since the national legal systems and legal cultures diverse, the question is raised whether the jurisprudence should concern itself more with the legal cultural context of a given meta-legal study. The issues and outcomes of a particular legal socio-philosophical study carry the problems and problematizations that are relevant for the societal, legal and academic world of the scholar concerned. Scholars such as John Rawls, Martha Nussbaum and Richard Posner may deserve to join the first ranks of the American academic world, but what is their contribution to the issues and debates of the European legal cultures and the Dutch legal culture in particular? A plea is made for more diversity in selecting and reading the works of scholars from abroad. In demonstrating the need for diversity the work of Alain Supiot is discussed.