Zoekresultaat: 154 artikelen

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    The Polish Supreme Court has recently confirmed that the collective dismissal procedure should also cover cases where the employment relationship is terminated as a result of the termination of conditions of work or pay.


Marcin Wujczyk Ph.D.
Marcin Wujczyk, Ph.D., is an associate professor at the Jagiellonian University and an attorney with Ksiazek & Bigaj Law Firm, www.ksiazeklegal.pl.
ECtHR Court Watch

ECtHR 5 September 2017 (Barbulescu), Application no. 61496/08, Privacy

Barbulescu – v – Romania, Romanian case

Tijdschrift European Employment Law Cases, Aflevering 4 2017
Trefwoorden Fundamental rights, Privacy
Samenvatting

    In Barbulescu, the Court examined for the first time a case concerning the monitoring of an employee’s electronic communications by a private employer. The Grand Chamber decided differently from the Chamber, when it concluded that the Romanian courts, in reviewing the decision of a private employer to dismiss an employee after having monitored his electronic communications, failed to strike a fair balance between the interests at stake: namely the employee’s right to respect for his private life and correspondence, on the one hand, and his employer’s right to take measures to ensure the smooth running of the company, on the other.

    Between 2008 and 2016, around 7000 Asda employees working in retail stores (who were largely women) issued equal pay claims in the Manchester Employment Tribunal (‘ET’). The Claimants argued that retail store workers carry out work of ‘equal value’ to the predominantly male workforce working in the distribution centres, meaning they were appropriate comparators for the purposes of an equal pay claim. The ET upheld their claim, even though the stores and distribution centres were run by different departments and the rates of pay set by a different method. Asda appealed to the EAT, which dismissed all grounds of appeal and upheld the ET’s decision, allowing the UK’s largest private-sector group equal pay claim to proceed.


Katie Johnston
Katie Johnston is a Senior Associate at Lewis Silkin LLP.

    This paper discusses three approaches that can be helpful in the area of comparative rights jurisprudence, oriented in reference to three different kinds of studies that are possible in that area. To a large extent the methods for a comparative legal research depend on the research question and the goal of the researcher. First, a comparative law study may focus on the sociocultural context that led to the elaboration of differences or similarities in the protection of rights. Second, a comparative law approach can be a normative enterprise. It can focus on engaging in a philosophical analysis enlightened by the differences or similarities in the regulation of rights, in order to propose concrete solutions for the regulation of a right. Third, a comparative law approach can combine both elements of the two previously mentioned approaches. The paper discusses the challenges that the researcher faces in her attempt to use these methodologies and how these challenges can be overcome. The law as a normative discipline has its own constraints of justifiability. If what motivates a comparative law study is the search for principles of justice the researcher needs to persuade that her methodological approach serves her aim.


Ioanna Tourkochoriti
School of Law, NUI Galway, Ireland.
Artikel

Access_open Crisis in the Courtroom

The Discursive Conditions of Possibility for Ruptures in Legal Discourse

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering Pre-publications 2017
Trefwoorden crisis discourse, rupture, counterterrorism, precautionary logic, risk
Auteurs Laura M. Henderson LL.M
SamenvattingAuteursinformatie

    This article addresses the conditions of possibility for the precautionary turn in legal discourse. Although the precautionary turn itself has been well-detailed in both legal and political discourse, insufficient attention has been paid to what made this shift possible. This article remedies this, starting by showing how the events of 9/11 were unable to be incorporated within current discursive structures. As a result, these discursive structures were dislocated and a new ‘crisis discourse’ emerged that succeeded in attributing meaning to the events of 9/11. By focusing on three important cases from three different jurisdictions evidencing the precautionary turn in legal discourse, this article shows that crisis discourse is indeed employed by the judiciary and that its logic made this precautionary approach to counterterrorism in the law possible. These events, now some 16 years ago, hold relevance for today’s continuing presence of crisis and crisis discourse.


Laura M. Henderson LL.M
Laura M. Henderson is a researcher at UGlobe, the Utrecht Centre for Global Challenges, at Utrecht University. She wrote this article as a Ph.D. candidate at the Vrije Universiteit Amsterdam.

    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.
Artikel

2017/27 Supreme Court clarifies indirect discrimination test (UK)

Tijdschrift European Employment Law Cases, Aflevering 3 2017
Trefwoorden General discrimination, Indirect discrimination
Auteurs Soyoung Lee
SamenvattingAuteursinformatie

    The Supreme Court has given a clear explanation of how the test for indirect discrimination works, holding that it is not necessary to know why a particular group is disadvantaged by an employer’s policy in order to show indirect discrimination. This decision is not particularly helpful for employers as it makes it easier for individuals to make an indirect discrimination claim. However, the Supreme Court emphasised that it is always open to an employer to show that indirect discrimination is justified.


Soyoung Lee
Soyoung Lee is an Associate Solicitor at Lewis Silkin LLP (www.lewissilkin.com).

Prof. mr. J. de Boer
Prof. mr. J. de Boer is lid van het Gemeenschappelijk Hof.
Artikel

Enforceability of mediation clauses in Belgium and the Netherlands

Tijdschrift Nederlands-Vlaams tijdschrift voor mediation en conflictmanagement, Aflevering 3 2017
Trefwoorden Enforceability, Mediation clauses, contracts
Auteurs Ellen van Beukering-Rosmuller en Patrick Van Leynseele
SamenvattingAuteursinformatie

    In this article authors discuss (possible) legal means and methods aimed at making mediation clauses effective and/or enforceable. In particular Belgian and Dutch law are examined. In part attention is also paid to English, French and Italian law. Against the background of recent EU-legislation the validity of mediation clauses is discussed as well, with a focus on consumer related disputes. By reviewing US case law with regard to the duty to participate in good faith in the mediation process, the authors also outline the limits of this concept for the effectiveness of mediation clauses. The central theme of the enforceability of mediation clauses has been looked at both from a procedural as from a financial angle. Substantial differences can be noted between the Belgian and the Dutch approach towards what courts should do when dealing with a dispute in which parties have previously agreed to mediation. Belgian law provides in art. 1725 § 2 Judicial Code that the court, if so requested by the defendant, is in principle obliged to suspend the examination of the case until the mediation has taken place. According to current case law, the situation in the Netherlands is that mediation clauses are in principle not enforceable (Supreme Court 2006). Following the most recent legislative proposal regarding mediation (July 2016) the court should examine whether mediation can still have an added value in case one party refuses to take part in a mediation as provided for in a clause invoked by the other party, prior to (possibly) proposing mediation. Based on the plans repeatedly announced by the Belgian Minister of Justice, it is likely that there will soon be an amendment to the mediation provisions in the Judicial Code that will allow courts to ‘force’ mediation upon the parties, even in the absence of a mediation clause. If this becomes the rule, judges would be well advised to exercise this power with due care. In the authors’ opinion the Dutch approach (as suggested in the most recent legislative proposal) in connection with mediation clauses, consisting in having the court examine whether mediation may (still) have an added value for the parties, could serve as a good guideline for the Belgian judges to use.


Ellen van Beukering-Rosmuller
Ellen J.M. van Beukering-Rosmuller is Universitair Docent Burgerlijk Procesrecht, Universiteit Leiden, Faculteit der Rechtsgeleerdheid.

Patrick Van Leynseele
Patrick H. Van Leynseele is lid van de balies van Brussel en New York en partner in het Brussels advocatenkantoor DALDEWOLF, een referentie inzake ADR. Met als achtergrond het ondernemingsrecht werkt hij als litigator en arbiter in internationale zaken. Hij schreef verschillende artikels inzake mediation en Med-Arb in vooraanstaande juridische tijdschriften.

    The purpose of this article is to investigate whether the notion of an interest should be taken more seriously than the notion of a right. It will be argued that it should; and not only because it can be just as amenable to the institutional taxonomical structure often said to be at the basis of rights thinking in law but also because the notion of an interest has a more epistemologically convincing explanatory power with respect to reasoning in law and its relation to social facts. The article equally aims to highlight some of the important existing work on the notion of an interest in law.


Geoffrey Samuel
Professor of Law, Kent Law School, The University of Kent, Canterbury, Kent, U.K. This article is a much re-orientated, and updated, adaption of a paper published a decade ago: Samuel 2004, at 263. The author would like to thank the anonymous referees for their very helpful criticisms and observations on an earlier version of the manuscript.
ECJ Court Watch

ECJ (Grand Chamber) 14 March 2017, case C-188/15 (Bougnaoui), Religious discrimination

Asma Bougnaoui and Association de défense des droits de l’homme (Association for the Defence of Human Rights) – v – Micropole SA, formerly Micropole Univers SA, French case

Tijdschrift European Employment Law Cases, Aflevering 2 2017
Trefwoorden Religious discrimination
Samenvatting

    The concept of a ‘genuine and determining occupational requirement’ within the meaning of Article 4 of Directive 2000/78 does not cover subjective considerations, such as the willingness of an employer to take account of customers’ wishes.

Artikel

Access_open Pursuing Legal Research

Tijdschrift Law and Method, juni 2017
Auteurs Synne Sæther Mæhle
SamenvattingAuteursinformatie

    By conducting methodological assessments, legal researchers decide which lines of inquiry are worth pursuing. Two aspects of such assessments are highlighted in this article. The first aspect is to construct promising lines of inquiry. The second aspect is to clarify provisionally the potential of various promising lines of inquiry. Clarifying and calibrating such potential through discourse with fellow researchers are essential. Increased awareness of how legal researchers decide which lines of inquiry are worth pursuing is vital to contemporary discourse about legal methodology.


Synne Sæther Mæhle
Associate professor, Faculty of Law, University of Bergen, Norway
Artikel

Over waargenomen onrechtvaardigheid en radicalisering

Tijdschrift Justitiële verkenningen, Aflevering 3 2017
Trefwoorden Injustice, perceptions, radicalization, horizontal and vertical deprivation, cognitive capacities
Auteurs Dr. M. Bal en Prof.dr. K. van den Bos
SamenvattingAuteursinformatie

    The authors propose that perceptions of injustice play a central role in radicalization toward violent extremism and terrorism. Perceptions of unfair disadvantage in comparison with other groups (horizontal deprivation) or by societal authorities (vertical deprivation) will elicit strong emotional and behavioral reactions. In combination with feelings of personal uncertainty and a lack of cognitive capacities to control justice-related emotions, this increases the pull and attraction of radical ideologies. Furthermore, when people join a radical organization, a vicious circle of identification with and justification of radical ideology and illegitimization and rejection of the status quo follow, possibly resulting in the justification of violence to achieve social change. Injustice perceptions are difficult to change, but a better understanding of the basic processes involved allows for the development of prevention and deradicalization programs, which should focus on full and just societal integration of groups and individuals that have a high potential to radicalize.


Dr. M. Bal
Dr. Michèlle Bal is als universitair docent Algemene Sociale Wetenschappen verbonden aan de Universiteit Utrecht.

Prof.dr. K. van den Bos
Prof. dr. Kees van den Bos is hoogleraar Empirische Rechtswetenschap en hoogleraar Sociale Psychologie aan de Universiteit Utrecht.

    For the first time, a Belgian court has relied on the Kaltoft case, which holds that obesity may constitute a disability. That case gives rise to protection against discrimination, according to the Labour Tribunal of Liège, even if it is falsely presumed. This is the case where an employer sends an email to an applicant stating that the applicant cannot be hired because his or her obesity is a disability in relation to the job.


Gautier Busschaert
Gautier Busschaert is an attorney at Van Olmen & Wynant in Brussels, www.vow.be.
ECJ Court Watch

ECJ (Grand Chamber) 21 December 2016, case C-201/15 (AGET Iraklis), Collective redundancies

Anonymi Geniki Etairia Tsimenton Iraklis (AGET Iraklis) – v – Ypourgos Ergasias, Koinonikis Asfalisis kai Koinonikis Allilengyis; intervener: Enosi Ergazomenon Tsimenton Chalkidas, Greek case

Tijdschrift European Employment Law Cases, Aflevering 1 2017
Trefwoorden Collective redundancies
Samenvatting

    Where no agreement is reached with employee representatives on a planned collective redundancy, the employer must try to obtain permission from the Minister for Labour – who rarely gives it. The employer in this case argued successfully that this was a serious obstacle to its to freedom to establish and conduct business in Greece.

    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.
Artikel

Hoe slachtofferbewust werkt de reclassering?

Tijdschrift PROCES, Aflevering 2 2017
Trefwoorden Probation, victim consciousness, Offenders, Recidivism, professional standards
Auteurs Debbie J.M. Mollen en Dr. Jaap A. van Vliet
SamenvattingAuteursinformatie

    The probation in the Netherlands works more victim conscious since last year. Victim conscious working in probation is defined as: involving the perspective and interests of the victim when working with offenders. This broadly and to the extent it is justifiable from the primary task of the probation to reduce recidivism and promote the re-integration of probation clients/offenders. With this justification is both the moral level (right action) as being involved professional standards (effective action).
    The article describes, among other, a study on how the victim consciously work has been implemented within the Salvation Army Probation Service in the Netherlands.


Debbie J.M. Mollen
Debbie J.M. Mollen is werkzaam op de afdeling Executie bij het Ressortsparket Arnhem-Leeuwarden.

Dr. Jaap A. van Vliet
Dr. Jaap A. van Vliet is zelfstandig adviseur en onderzoeker en tevens redacteur van PROCES.
Artikel

Access_open The Demos as a Plural Subject

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 1 2017
Trefwoorden democracy, demos, normativity, Margaret Gilbert, joint commitment
Auteurs Bas Leijssenaar PhD
SamenvattingAuteursinformatie

    Existing conceptualizations of the demos fail to treat issues of composition and performativity consistently. Recent literature suggests that both aspects are required in a satisfactory account of the demos. An analysis of this literature suggests several desiderata that such an account must meet. I approach the definition of demos with a conceptual framework derived from Margaret Gilbert’s plural subject theory of social groups. I propose an account of demos as a plural subject, constituted by joint commitment. This account offers an improved and consistent understanding of normativity, composition, agency, and cohesion of demos.


Bas Leijssenaar PhD
Bas Leijssenaar is PhD-candidate at the Institute of Philosophy, Centre for Social and Political Philosophy of the University of Leuven.
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-443/16. Fixed-term employment

Francisco Rodrigo Sanz – v – Universidad Politécnica de Madrid, reference lodged by the Spanish Juzgado de lo Contencioso-Administrativo de Madrid on 8 August 2016

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