Zoekresultaat: 195 artikelen

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Artikel

Dispute settlement among the Nigerian Igbo in Antwerp

Tijdschrift Recht der Werkelijkheid, Aflevering 1 2021
Trefwoorden Legal pluralism, Dispute settlement, Igbo, Antwerp
Auteurs Filip Reyntjens
SamenvattingAuteursinformatie

    This is a case study in ‘new legal pluralism’ which is interested in the operation of plural legal orders in countries of the global North. It considers the way in which the Nigerian Igbo living in Antwerp, Belgium settle their disputes. It first presents the Antwerp Igbo’s organisation in a Union possessing a constitution with precise legal stipulations. It then finds that the Igbo take the law with them from their home region into a diasporic community. Next it looks into the concrete organisation of dispute settlement and presents five cases as exemplars. It then discusses the advantages and drawbacks of applying Igbo law and justice, the issue of women’s rights, and the plurality and flexibility of the system. The conclusion underscores the fact that legal pluralism is a universal empirical reality.


Filip Reyntjens
Filip Reyntjens is Emeritus hoogleraar bij het Instituut voor Ontwikkelingsbeleid aan de Universiteit Antwerpen.

    In 2014, the ECJ was presented with a preliminary reference from the District Court in Kolding on the matter of whether EU law provides protection against discrimination on grounds of obesity with regard to employment and occupation. Following the ECJ’s ruling, first the District Court and later the High Court found that an employee’s obesity as such did not constitute a disability within the meaning of Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation since his obesity had not constituted a limitation or inconvenience in the performance of his job.


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

    The Vaslui Tribunal has recently annulled an individual dismissal decision issued during the state of alert in Romania due to formalities which had not been observed by the employer. While the judge invested with determining the matter limited their analysis to the elements contained in the individual dismissal decision, the judicial assistant ascertained, within a competing opinion, that the dismissal decision should have been annulled for other reasons, namely for the fact that, in reality, the employer had implemented a collective redundancy process without observing the procedure and employees’ rights in the event of such dismissal. Relying on the provisions of Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies, the judicial assistant has made an exhaustive analysis of the conditions required for the existence of a collective dismissal.
    While the competing opinion does not have the same effect as a court ruling, it is part of the judicial procedure and, from this perspective, the independence and impartiality of all the members of the court and their obedience solely to the law is maintained.


Andreea Suciu
Andreea Suciu is Managing Partner of Suciu I The Employment Law Firm.

Andreea Serban
Andreea Serban is an attorney-at-law at Suciu I The Employment Law Firm.
Case Reports

2021/4 Budget considerations can justify indirect discrimination (UK)

Tijdschrift European Employment Law Cases, Aflevering 1 2021
Trefwoorden Discrimination General, Age Discrimination
Auteurs Carolyn Soakell
SamenvattingAuteursinformatie

    If an employer has a policy which is indirectly discriminatory and the employer’s aim is no more than saving money, the Court of Appeal (CA) has ruled that this cannot justify the discrimination. However, needing to balance the books can potentially be a valid justification for indirect discrimination.


Carolyn Soakell
Carolyn Soakell is a partner at Lewis Silkin LLP.
Case Law

Access_open 2021/1 EELC’s review of the year 2020

Tijdschrift European Employment Law Cases, Aflevering 1 2021
Auteurs Ruben Houweling, Daiva Petrylaitė, Marianne Hrdlicka e.a.
Samenvatting

    Various of our academic board analysed employment law cases from last year. However, first, we start with some general remarks.


Ruben Houweling

Daiva Petrylaitė

Marianne Hrdlicka

Attila Kun

Luca Calcaterra

Francesca Maffei

Jean-Philippe Lhernould

Niklas Bruun

Jan-Pieter Vos

Luca Ratti

Andrej Poruban

Anthony Kerr

Filip Dorssemont

    The UK failed properly to implement EU health and safety law by restricting protection from detriment on health and safety grounds to ‘employees’, the High Court (HC) ruled in a recent case. Such protection should be extended to the broader category of ‘workers’. Importantly, this ruling potentially increases employers’ exposure to Covid-19-related health and safety claims.


Shalina Crossley
Shalina Crossley is Partner at Lewis Silkin LLP.

    An adjudication officer of the Irish Workplace Relations Commission has ruled that an upper age limit for entrance to An Garda Síochána (the national police force) was discriminatory on the grounds of age.


Orla O’Leary
Orla O’Learny is a Senior Associate at Mason, Hayes & Curran.
Article

Access_open The Common Law Remedy of Habeas Corpus Through the Prism of a Twelve-Point Construct

Tijdschrift Erasmus Law Review, Aflevering 2 2021
Trefwoorden Habeas corpus, common law, detainee, Consitution, liberty
Auteurs Chuks Okpaluba en Anthony Nwafor
SamenvattingAuteursinformatie

    Long before the coming of the Bill of Rights in written Constitutions, the common law has had the greatest regard for the personal liberty of the individual. In order to safeguard that liberty, the remedy of habeas corpus was always available to persons deprived of their liberty unlawfully. This ancient writ has been incorporated into the modern Constitution as a fundamental right and enforceable as other rights protected by virtue of their entrenchment in those Constitutions. This article aims to bring together the various understanding of habeas corpus at common law and the principles governing the writ in common law jurisdictions. The discussion is approached through a twelve-point construct thus providing a brief conspectus of the subject matter, such that one could have a better understanding of the subject as applied in most common law jurisdictions.


Chuks Okpaluba
Chuks Okpaluba, LLB LLM (London), PhD (West Indies), is a Research Fellow at the Free State Centre for Human Rights, University of the Free State, South Africa. Email: okpaluba@mweb.co.za.

Anthony Nwafor
Anthony O. Nwafor, LLB, LLM, (Nigeria), PhD (UniJos), BL, is Professor at the School of Law, University of Venda, South Africa. Email: Anthony.Nwafor@univen.ac.za.


Claire Toumieux
Claire Toumieux and Susan Ekrami is partner at Allen & Overy LLP in Paris, www.allenovery.com.

Susan Ekrami
Susan Ekrami is a senior associate with Allen & Overy LLP in Paris, www.allenovery.com.


Andreea Suciu
Andreea Suciu is Managing Partner at Suciu | The Employment Law Firm in Bucharest, Romania.

Teodora Manaila
Teodora Manaila is a Senior Associate at Suciu | The Employment Law Firm in Bucharest, Romania.

    The Employment Appeal Tribunal (EAT) has ruled that the provision under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) which renders changes to employees’ terms and conditions void if they are made because of the transfer applies to changes that are advantageous as well as detrimental to employees. On the facts of the case, this meant that owner-directors who had made significant improvements to their own employment terms before a TUPE transfer could not enforce these against the transferee employer.


Lisa Dafydd
Lisa Dafydd is an associate at Lewis Silkin LLP.

    The Danish Supreme Court recently held that an employer had discharged the reversed burden of proof in a case concerning a physiotherapist who was dismissed shortly after her return from maternity leave.


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

    In a summary proceeding, the Court of Rotterdam has held that it is not clear whether the Non-Seafarers Work Clause, prohibiting lashing work on board of container ships being carried out by the crew, does indeed contribute to better employment and/or working conditions of seafarers. As a result of which the Clause – at this time – cannot be held to be outside the scope of competition law and the claim for compliance with the provision has been rejected. In the media, unions have stated that they will continue to enforce compliance with the Non-Seafarers Work Clause. It remains to be seen whether a court in main proceedings will reach a similar verdict.


Erick Hagendoorn
Erick Hagendoorn is an attorney-at-law at HerikVerhulst N.V., Rotterdam.

    This case involved an employee who claimed that he was unfairly dismissed for using a trade union to bring a grievance over measures his employer had taken on account of the coronavirus pandemic. The Employment Tribunal (ET) found that he was likely to be able to show at the full hearing of the case that this was an automatically unfair dismissal on grounds of his trade union membership or activities. It awarded the remedy of ‘interim relief’, ordering the employer immediately to reinstate him pending the full trial of the matter. The ET’s decision might signal a potential rise in claims for interim relief in future cases.


David Hopper
David Hopper is a Managing Associate at Lewis Silkin LLP.
Article

Access_open The Potential of Positive Obligations Against Romaphobic Attitudes and in the Development of ‘Roma Pride’

Tijdschrift Erasmus Law Review, Aflevering 3 2020
Trefwoorden Roma, Travellers, positive obligations, segregation, culturally adequate accommodation
Auteurs Lilla Farkas en Theodoros Alexandridis
SamenvattingAuteursinformatie

    The article analyses the jurisprudence of international tribunals on the education and housing of Roma and Travellers to understand whether positive obligations can change the hearts and minds of the majority and promote minority identities. Case law on education deals with integration rather than cultural specificities, while in the context of housing it accommodates minority needs. Positive obligations have achieved a higher level of compliance in the latter context by requiring majorities to tolerate the minority way of life in overwhelmingly segregated settings. Conversely, little seems to have changed in education, where legal and institutional reform, as well as a shift in both majority and minority attitudes, would be necessary to dismantle social distance and generate mutual trust. The interlocking factors of accessibility, judicial activism, European politics, expectations of political allegiance and community resources explain jurisprudential developments. The weak justiciability of minority rights, the lack of resources internal to the community and dual identities among the Eastern Roma impede legal claims for culture-specific accommodation in education. Conversely, the protection of minority identity and community ties is of paramount importance in the housing context, subsumed under the right to private and family life.


Lilla Farkas
Lilla Farkas is a practising lawyer in Hungary and recently earned a PhD from the European University Institute entitled ‘Mobilising for racial equality in Europe: Roma rights and transnational justice’. She is the race ground coordinator of the European Union’s Network of Legal Experts in Gender Equality and Non-discrimination.

Theodoros Alexandridis
Theodoros Alexandridis is a practicing lawyer in Greece.
Article

Access_open State Obligations to Counter Islamophobia: Comparing Fault Lines in the International Supervisory Practice of the HRC/ICCPR, the ECtHR and the AC/FCNM

Tijdschrift Erasmus Law Review, Aflevering 3 2020
Trefwoorden Human rights, positive state obligations, islamophobia, international supervisory mechanisms
Auteurs Kristin Henrard
SamenvattingAuteursinformatie

    Islamophobia, like xenophobia, points to deep-seated, ingrained discrimination against a particular group, whose effective enjoyment of fundamental rights is impaired. This in turn triggers the human rights obligations of liberal democratic states, more particularly states’ positive obligations (informed by reasonability considerations) to ensure that fundamental rights are effectively enjoyed, and thus also respected in interpersonal relationships. This article identifies and compares the fault lines in the practice of three international human rights supervisory mechanisms in relation to Islamophobia, namely the Human Rights Committee (International Covenant on Civil and Political Rights), the European Court of Human Rights (European Convention on Human Rights) and the Advisory Committee of the Framework Convention for the Protection of National Minorities. The supervisory practice is analysed in two steps: The analysis of each international supervisory mechanism’s jurisprudence, in itself, is followed by the comparison of the fault lines. The latter comparison is structured around the two main strands of strategies that states could adopt in order to counter intolerance: On the one hand, the active promotion of tolerance, inter alia through education, awareness-raising campaigns and the stimulation of intercultural dialogue; on the other, countering acts informed by intolerance, in terms of the prohibition of discrimination (and/or the effective enjoyment of substantive fundamental rights). Having regard to the respective strengths and weaknesses of the supervisory practice of these three international supervisory mechanisms, the article concludes with some overarching recommendations.


Kristin Henrard
Kristin Henrard is Professor International Human Rights and Minorities, Erasmus School of Law, Rotterdam, the Netherlands.
Pending Cases

Case C-135/20, Fixed-term Work

JS – v – Câmara Municipal de Gondomar, reference lodged by the Supremo Tribunal Administrativo (Portugal) on 12 March 2020

Tijdschrift European Employment Law Cases, Aflevering 2 2020
Trefwoorden Fixed-term Work

    The dismissal of an employee for gross misconduct was unfair because the investigating officer failed to share significant new information with the manager conducting the disciplinary hearing who decided to dismiss, the Employment Appeal Tribunal has ruled.


Ludivine Gegaden
Ludivine Gegaden is an Associate at Lewis Silkin LLP.

    In a recent Supreme Court decision, it was held by a 4-1 majority that there is no reason, in principle, why the provision of ‘reasonable accommodation’ for an employee with a disability should not involve the redistribution of duties.


Orla O’Leary
Orla O’Leary is an attorney-at-law at Mason Hayes & Curran, Dublin.

    The Belgian Court of Cassation (Supreme Court), in a decision of 20 January 2020, has ruled that the prohibition for an employer to terminate the employment relationship of a worker for reasons related to a complaint for acts of violence and/or moral and/or sexual harassment at work does not, however, preclude the dismissal from being justified by motives inferred from the facts set out in the complaint.


Gautier Busschaert
Gautier Busschaert is an attorney-at-law at Van Olmen & Wynant, Brussels.
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