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Tijdschrift European Employment Law Cases x Jaar 2021 x Rubriek Case Reports x

    In its decision rendered on 28 February 2019, the Luxembourg Court of Appeal (Cour d’appel de Luxembourg) examined under which circumstances on-call duty performed at the workplace qualifies as actual working time.
    The issue raised was whether the time spent at night by an employee (i.e. the presence of an employee at the workplace) performing the work of a live-in carer was to be considered as ‘actual working time’.
    The Court expressly referred to EU case law and decided that the concept of actual working time is defined by two criteria, namely (i) whether the employee during such a period must be at the employer’s disposal, and (ii) the interference with the employee’s freedom to choose their activities.
    In view of the working hours provided for in the employment contract and in the absence of evidence proving that the employee would not have been at the employer’s home during her working hours, the Court found that the employee stayed at the employer’s home at night and at the employer’s request. It was irrelevant in this respect whether it was for convenience or not. It was further established that the employee could not leave during the night and return to her home and go about her personal business, so that the hours she worked at night were to be considered as actual working time.
    Given that the employee’s objections regarding her salary were justified (as the conditions of her remuneration violated statutory provisions), the Court decided that the dismissal was unfair.


Michel Molitor
Michel Molitor is the managing partner of MOLITOR Avocats à la Cour SARL in Luxembourg, www.molitorlegal.lu.

    The Supreme Court (SC) has unanimously decided that drivers engaged by Uber are workers rather than independent contractors. It also decided that drivers are working when they are signed in to the Uber app and ready to work.


Colin Leckey
Colin Leckey is a partner at Lewis Silkin LLP.

    On 22 May 2020, fifty-two members of the Hungarian parliament petitioned the Constitutional Court which was requested to establish the unconstitutionality of Section 6(4) of Government Decree no. 47/2020 (III. 18), its conflict with an international treaty and to annul it with retroactive effect to the date of its entry into force. According to Section 6(4) of the Decree “in a separate agreement, the employee and the employer may depart from the provisions of the Labour Code” (i.e. ‘absolute dispositivity’). The petition, among other things, alleged the violation of equal treatment and the right to rest and leisure. The Constitutional Court rejected the motion to establish the unconstitutionality of Section 6(4) and its annulment, since it was repealed on 18 June 2020. The Constitutional Court may, as a general rule, examine the unconstitutionality of the legislation in force, however it was no longer possible to examine the challenged piece of legislation in the framework of a posterior abstract norm control.


Kristof Toth
Kristof Toth is PhD student at the Karoli Gaspar University in Hungary.

    The German Federal Labour Court (Bundesarbeitsgericht, ‘BAG’) has ruled that the user of an online platform (‘crowdworker’) who takes on so-called ‘microjobs’ on the basis of a framework agreement concluded with the platform operator (‘crowdsourcer’) can be an employee of the crowdsourcer. This applies in a case where the framework agreement is aimed at a repeated acceptance of such microjobs. The decisive factor is whether the crowdworker performs work that is subject to instructions and is determined by third parties in the context of the actual performance of the contractual relationship. The name of the contract is irrelevant. One assumes an employment relationship if the crowdsourcer controls the collaboration via an online platform operated by them in such a way that the crowdworker cannot freely shape their activity in terms of place, time and content.


Katharina Gorontzi
Katharina Gorontzi, LLM, is a senior associate at Luther lawfirm in Dusseldorf, Germany.

Jana Voigt
Jana Voigt is a senior associate at Luther lawfirm in Dusseldorf, Germany.

    On 12 October 2020, the Labour Court of Appeal of Ghent ruled that there was no indirect discrimination in the case of Mrs. Achbita, because a policy of neutrality does not disadvantage Muslim women who want to wear a headscarf more than any other worker. The Labour Court of Appeal was also of the opinion that the employer should not examine alternative job positions.


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

    The Bucharest Tribunal has ruled that the time spent by employees in isolation at work during a Covid-19 pandemic state of emergency represents working time. However, the time spent in isolation at home following the period of isolation at work does not constitute rest time.


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

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

2021/18 Fixed-term singers not comparable to permanent singers at the Royal Danish Theatre (DK)

Tijdschrift European Employment Law Cases, Aflevering 2 2021
Trefwoorden Fixed-Term Work, Other Forms of Discrimination
Auteurs Christian K. Clasen
SamenvattingAuteursinformatie

    In a recent case, the Danish Supreme Court addressed the question of what constitutes a comparable permanent employee in relation to discrimination against fixed-term employees. The Supreme Court ruled that even though the two groups of fixed-term and permanent singers at the Royal Opera Chorus of the Royal Danish Theatre performed almost the same tasks, their positions were not comparable as the singers’ qualifications and skills were different and, for this reason, the difference in terms and conditions was not discriminatory.


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

    On 16 December 2020, the Supreme Court of Lithuania (Cassation Court) delivered a ruling in a case where an employee claimed that the employer, JSC ‘Lithuanian Railways’, did not apply the regulations of the company’s employer-level collective agreement and did not pay a special bonus – an anniversary benefit (i.e. a benefit paid to employees on reaching a certain age) – because the employee was not a member of the trade union which had signed the collective agreement. According to the employee, she was discriminated against because of her membership of another trade union, i.e membership of the ‘wrong’ trade union.
    The Supreme Court held that combatting discrimination under certain grounds falls within the competence and scope of EU law, but that discrimination on the grounds of trade union membership is not distinguished as a form of discrimination. Also, the Court ruled that in this case (contrary to what the employee claimed in her cassation appeal) Article 157 of the Treaty on the Functioning of the European Union (TFEU) is not applicable because it regulates the prohibition of discrimination on other (sex) grounds. Moreover, the Court found that there was no legal basis for relying on the relevant case law of the ECJ which provides clarification on other forms of discrimination, but not on discrimination based on trade union membership.


Vida Petrylaitė
Vida Petrylaitė is an associate professor at Vilnius university.

    According to German law, leave entitlements of an employee shall in principle expire at the end of the calendar year or a permissible carryover period. However, based on the case law of the ECJ, this shall only apply if the employer has previously enabled and summoned the employee to take leave and the employee has nevertheless not taken it. But what happens if an employee is incapacitated for work for a longer period of time and therefore is unable to take his or her annual leave? Does the employer also have to inform this employee about their leave entitlement? The Federal Labour Court (Bundesarbeitsgericht, ‘BAG’) recently had to deal with this question in two cases and now the ECJ will have to address this matter. This is because the BAG has asked the ECJ to decide whether and when an employee’s entitlement to paid leave can expire if an employee loses their ability to work during the course of the leave year, while the employee could have taken at least part of the annual leave before becoming incapacitated for work, but the employee was not properly informed by the employer about their leave entitlement.


Katharina Gorontzi
Katharina Gorontzi is an attorney-at-law at Luther Rechtsanwaltsgesellschaft mbH.

Nina Stephan
Nina Stephan is an attorney-at-law at Luther Rechtsanwaltsgesellschaft mbH.

Jule Rosauer
Jule Rosauer is a legal trainee at Luther Rechtsanwaltsgesellschaft mbH.
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 Reports

2021/9 AGET Iraklis: another belated victory for the employer (GR)

Tijdschrift European Employment Law Cases, Aflevering 1 2021
Trefwoorden Information & Consultation, Collective Redundancies
Auteurs Effie Mitsopoulou
SamenvattingAuteursinformatie

    The Supreme Court of Greece has clarified that the validity of terminations is not affected by the lack of consultation with the employees’ representatives, as per Directive 2002/14/EC on a general framework for informing and consulting employees. In case of non-compliance with such obligation, alternative administrative or judicial measures can be provided by the Member States. It further reiterated that the expediency and necessity of the company’s business decision to suddenly interrupt its plant operation cannot be subject to judicial control.


Effie Mitsopoulou
Effie Mitsopoulou is an attorney-at-law at Effie Mitsopoulou Law Office.
Case Reports

2021/2 Warning strike timing (HU)

Tijdschrift European Employment Law Cases, Aflevering 1 2021
Trefwoorden Collective Agreements, Unions, Other Fundamental Rights
Auteurs Zsófia Oláh en Ildikó Rácz
SamenvattingAuteursinformatie

    This case involved an employer who claimed that a trade union organised an unlawful warning strike. The Curia (the highest judicial authority in Hungary) found that the trade union violated its obligation to cooperate with the employer according to Act No. 7 of 1989 on Strikes. The Curia and also the Regional Courts made some clear points on the question of the timing of a warning strike. The employer must be notified of a planned strike in sufficient time, which requirement also applies in the case of warning strikes. The time can be considered as sufficient if the employer is able to fulfil its rights to protect its property, prevent damage resulting from the strike, to carry out its duties to protect life and property, and to organise work accordingly. Failing this obligation, the warning strike is unlawful. The notice shall state the date and time that such action will commence.


Zsófia Oláh
Zsófia Oláh is a Partner at OPL Law Firm.

Ildikó Rácz
Ildikó Rácz is a Junior Associate at OPL Law Firm.

    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.
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