The author discusses the recent ECJ judgments in the cases Egenberger and IR on religious discrimination.

The Higher Labour Court of Berlin-Brandenburg (Landesarbeitsgericht (LAG)) has held that the pro rata reduction of annual leave depending on the period of parental leave is lawful. In general, statutory holiday entitlement also exists for the period of parental leave. However, the employer has the right to reduce leave pro rata for each full month of parental leave according to Section 17 paragraph 1 sentence 1 of the Federal Parental Allowances and Parental Leave Act (Bundeselterngeld- und Elternzeitgesetz (BEEG)). The proportional reduction is in line with European law.

The Luxembourg Court of Appeal (Cour d’appel de Luxembourg) confirmed that an employee dismissed with notice and exempted from performing their work during the notice period is no longer bound by the non-competition duties arising from their loyalty obligation and can therefore engage in an employment contract with a direct competitor of their former employer during that exempted notice period. However, the Court of Appeal decided that, even if the former employee is in principle entitled to use the know-how and knowledge they acquired with their former employer, the poaching of clients during the notice period must, due to the facts and circumstances and in the light of the rules applicable in the financial sector, be considered as an unfair competition act and therefore constitutes serious misconduct justifying the termination of the employment contract with immediate effect.

Both the French Supreme Court and the Versailles Court of Appeal held that an employer, who must ensure that liberties and fundamental rights of each employee are respected in the working community, may lawfully prohibit the wearing of any visible sign of political, philosophical or religious beliefs in the workplace, provided that the rule contained in the company rules and regulations applies without distinction to employees in direct contact with the customers of the company only. But in the absence of such rules, sanctioning an employee who refuses to remove her Islamic veil based on the wish of a customer, which does not qualify as a genuine and determining occupational requirement, amounts to an unlawful direct discrimination and should consequently be held null and void.

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.

This article looks at how normative questions, i.e. ‘what should the law be?‘, are approached in modern labour law scholarship. A distinction is made between internal and external normative frameworks for analysis, whereby internal frameworks are made up of principles, values or standards that are part of the law and the external frameworks are made up of theories outside of law. As a functional legal field, labour law can also benefit to a great deal from empirical research. However, the article argues that empirical facts by themselves have a limited normative value and that we need a normative framework in order to answer normative and evaluative questions. Therefore, the aim of the article is to review, clarify and evaluate the internal normative framework of labour law.

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.

A decision taken by an employer based on gender which respects the national legislation was considered discriminatory based on EU legislation.

Following an appeal by Uber against the Employment Appeal Tribunal’s (EAT) finding last year, which was featured in EELC 2018/9, that drivers engaged by Uber are ‘workers’ rather than independent contractors (reported in EELC 2018-1), the Court of Appeal (CA) has now upheld the EAT’s decision. The CA also upheld the finding of the Employment Tribunal (ET), which was featured in EELC 2017/10, that drivers are working when they are signed into the Uber app and ready to work (reported in EECL 2017-1). Uber has approximately 40,000 drivers (and about 3.5 million users of its mobile phone application in London alone) and so this decision has potentially significant financial consequences for the company.

According to the Supreme Court of the Republic of Slovenia (Vrhovno sodišče Republike Slovenije) (Supreme Court), reintegration of a formerly dismissed employee does not mean that the employment relationship had not been terminated earlier. Consequently, the employee is entitled to an allowance in lieu of the untaken leave at the time of the dismissal.

According to the Labour Court of Mons, calculating the termination indemnity of a worker based on the reduced remuneration paid during a career break called ‘time-credit’ is compatible with EU law, despite the Meerts judgment regarding parental leave.

A municipal federation took back a nursing home operation it had previously outsourced to a contractor. The Finnish Supreme Court held that a transfer of undertaking had taken place and the municipal federation (transferee) was liable to pay the employee compensation for the unlawful termination of the employment contract. Further, the Supreme Court held that the employee had also without a justifiable reason directed the claim for compensation towards the employer company (transferor/the old contractor) and for that reason was liable to pay the legal costs of the employer company.

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.

De laatste jaren zijn er diverse beursvennootschappen bij gekomen die Nederland als vestigingsplaats hebben gekozen en een structuur met meervoudig stemrecht hebben geïntroduceerd. Vaak zijn deze vennootschappen van origine buitenlands. Bij een aantal van deze vennootschappen is de mogelijkheid geïntroduceerd extra stemrecht toe te kennen aan ‘loyale’ aandeelhouders. De andere in de praktijk gebruikte vorm is de high/low voting stock-structuur, waarbij door introductie van aandelen met een verschillende nominale waarde verschil in stemrecht verbonden aan die aandelen wordt gecreëerd. In dit artikel bespreekt de auteur de kenmerken van de genoemde structuren en gaat hij in op de juridische ‘haken en ogen’.