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Law Review

2019/1 EELC’s review of the year 2018

Tijdschrift European Employment Law Cases, Aflevering 1 2019
Auteurs Ruben Houweling, Catherine Barnard, Filip Dorssemont e.a.
Samenvatting

    For the second time, various of our academic board analysed employment law cases from last year. However, first, we start with some general remarks.


Ruben Houweling

Catherine Barnard

Filip Dorssemont

Jean-Philippe Lhernould

Francesca Maffei

Niklas Bruun

Anthony Kerr

Jan-Pieter Vos

Luca Ratti

Daiva Petrylaite

Andrej Poruban

Stein Evju

    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.
Rulings

ECJ 4 October 2018, case C-12/17 (Dicu), Maternity and parental leave, Paid leave

Tribunalul Botoşani, Ministerul Justiţiei – v – Maria Dicu, Romanian case

Tijdschrift European Employment Law Cases, Aflevering 4 2018
Trefwoorden Maternity and parental leave, Paid leave
Samenvatting

    A period of parental leave does not count within the reference period for the purpose of determining an employee’s right to annual leave under Directive 2003/88/EC.

    Two differently constituted Employment Appeal Tribunals (‘EATs’) have recently considered whether it is sex discrimination to pay men on parental leave less than women on maternity leave. In Capita, the EAT decided that it was not direct sex discrimination to fail to pay full salary to a father taking shared parental leave, in circumstances where a mother taking maternity leave during the same period would have received full pay. However in Hextall, the EAT has indicated that enhancing maternity pay but not pay for shared parental leave may give rise to an indirect sex discrimination claim by fathers.


Ludivine Gegaden
Ludivine Gegaden is a Trainee Solicitor at Lewis Silkin LLP.
Rulings

ECJ 19 September 2018, case C-41/17 (González Castro), Gender discrimination, working time

Isabel González Castro – v – Mutua Umivale, ProsegurEspaña SL, Instituto Nacional de la Seguridad Social (INSS), Spanish case

Tijdschrift European Employment Law Cases, Aflevering 3 2018
Trefwoorden Gender discrimination, Working time
Samenvatting

    Even if a breastfeeding worker only works for part of her shift at night, the rules on the health and safety of pregnant and breastfeeding workers and those having recently given birth set out in Directive 92/85 apply, meaning that an assessment of her individual situation is necessary. If the worker brings a claim before the court, once she has provided a prima facie case of discrimination, the burden of proof switches to the employer. In other words, reversal of the burden of proof is also applicable to Article 7 (night work) of Directive 92/85/EEC.

    The Labour Court of Brussels ordered an employer to pay a protection indemnity to an employee following termination on the basis of reorganisation during her pregnancy because (i) the employee benefited from a specific protection against dismissal and (ii) the employer failed to prove that the dismissal of the employee was based on reasons unrelated to the pregnancy.


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

EJC 7 September 2017, case C-174/16 (H), Maternity and parental leave, Gender discrimination

H. – v – Land Berlin, German case

Tijdschrift European Employment Law Cases, Aflevering 1 2018
Trefwoorden Maternity and parental leave, Discrimination, Gender discrimination
Samenvatting

    Clause 5(1) and (2) of the revised Framework Agreement on parental leave precludes rules of national law which make promotion conditional on having successfully completed a probation, if probation has not taken place because of parental leave.

Law Review

Access_open 2018/1 EELC’s review of the year 2017

Tijdschrift European Employment Law Cases, Aflevering 1 2018
Auteurs Ruben Houweling, Catherine Barnard, Zef Even e.a.
Samenvatting

    This is the first time we have produced a review of employment law cases from the previous year, based on analysis by various of our academic board members. But before looking at their findings, we would first like to make some general remarks.


Ruben Houweling

Catherine Barnard

Zef Even

Amber Zwanenburg

Daiva Petrylaitė

Petr Hůrka

Jean-Philippe Lhernould

Erika Kovács

Jan-Pieter Vos

Andrej Poruban

Luca Ratti

Niklas Bruun

Francesca Maffei
ECJ Court Watch

ECJ 20 December 2017, case C-103/16 (Porras Guisado), Unfair dismissal, Collective redundancies

Jessica Porras Guisado – v – Bankia SA and Others, Spanish case

Tijdschrift European Employment Law Cases, Aflevering 1 2018
Trefwoorden Unfair dismissal, Collective redundancies
Samenvatting

    Directive 92/85 does not preclude national legislation that allows an employer to dismiss a pregnant worker in the context of a collective redundancy.

ECJ Court Watch

ECJ 19 October 2017, case C-531/15 (Otero Ramos), General discrimination, Gender discrimination

Elda Otero Ramos – v – Servicio Galego de Saúde & Instituto Nacional de la Seguridad Social, Spanish case

Tijdschrift European Employment Law Cases, Aflevering 1 2018
Trefwoorden General discrimination, Gender discrimination
Samenvatting

    The provisions on the burden of proof regarding the equal treatment of men and women in employment matters in Directive 2006/54 also apply to claims by breastfeeding workers based on Directive 92/85 (safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding).

    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.

    Comparative methodology is an important and a widely used method in the legal literature. This method is important inter alia to search for alternative national rules and acquire a deeper understanding of a country’s law. According to a survey of over 500 Dutch legal scholars, 61 per cent conducts comparative research (in some form). However, the methodological application of comparative research generally leaves much to be desired. This is particularly true when it comes to case selection. This applies in particular to conceptual and dogmatic research questions, possibly also allowing causal explanations for differences between countries. This article suggests that the use of an interdisciplinary research design could be helpful, and Hofstede’s cultural-psychological dimensions can offer a solution to improve the methodology of selection criteria.


Dave van Toor
D.A.G. van Toor, PhD LLM BSc works as a researcher and lecturer in Criminal (Procedural) Law and Criminology at the Universität Bielefeld.

    It was direct sex discrimination for a male employee who wished to take shared parental leave (SPL) to be entitled only to the minimum statutory pay where a female employee would have been entitled to full salary during an equivalent period of maternity leave, according to a first-instance decision from the Employment Tribunal (ET).


Anna Bond
Anna Bond is an Associate Solicitor at Lewis Silkin LLP.
Case Reports

2017/31 Lawful positive discrimination in favour of women (FR)

Tijdschrift European Employment Law Cases, Aflevering 3 2017
Trefwoorden Discrimination (other), Positive discrimination
Auteurs Claire Toumieux en Susan Ekrami
SamenvattingAuteursinformatie

    Company agreement provisions granting a half-day of leave to female employees on International Women’s Day constitute lawful positive discrimination in favour of women.


Claire Toumieux
Claire Toumieux is a partner with 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).

    A pregnant employee with no valid work permit in France does not benefit from protective legal provisions forbidding or restraining her termination.


Claire Toumieux

Susan Ekrami
Claire Toumieux and Susan Ekrami are a partner and associate with Allen & Overy LLP in Paris, www.allenovery.com.

    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 dismissal of a pregnant employee upon her employer’s business takeover was deemed to be unlawful discrimination.


Christiana Michael
Christiana Michael is a lawyer at George Z Georgiou & Associates LLC, www.georgezgeorgiou.com.
ECJ Court Watch

ECJ 14 September 2016, case C-16/15 (Pérez López), Fixed-term work

María Elena Pérez López – v – Servicio Madrileño de Salud (Comunidad de Madrid)

Tijdschrift European Employment Law Cases, Aflevering 4 2016
Trefwoorden Fixed-term work
Samenvatting

    Successive fixed-term contracts cannot be justified by legal provisions allowing renewal in order to ensure the provision of certain services of a temporary, auxiliary or extraordinary nature when, in reality, there is no obligation to create additional permanent posts in order to bring an end to the structural use of fixed-term work to fill permanent posts.

ECJ Court Watch

Case C-432/16. Maternity

Carolina Minayo Luque – v – Quitxalla Stars, S.L., and Fondo de Garantía Salarial, reference lodged by the Spanish Tribunal Superior de Justicia de Cataluña on 2 August 2016

Tijdschrift European Employment Law Cases, Aflevering 4 2016
Trefwoorden Maternity leave
ECJ Court Watch

ECJ 17 November 2016, case C-216/15 (Ruhrlandklinik), Temporary agency work

Betriebsrat der Ruhrlandklinik gGmbH – v – Ruhrlandklinik gGmbH

Tijdschrift European Employment Law Cases, Aflevering 4 2016
Trefwoorden Temporary agency work
Samenvatting

    The definition of ‘worker’ in Directive 2008/104 on temporary agency work includes those who are similar to employees, without having employee status under domestic law.

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