According to German law, every employee is entitled to paid annual leave. The amount of pay is generally calculated based on the current salary (known as the “principle of loss of pay”) but a reduction of working hours during the year does not lead to a reduction of entitlement to holiday pay for previously acquired holiday entitlements. If the entitlement was already acquired before the reduction of working time (which can happen because in Germany holiday entitlement is acquired at the beginning of the calendar year), pay during leave will be based on the salary agreed between the employer and employee when the holiday entitlement was acquired and thus, based on the ‘old’ salary. |
Case Reports |
EELC 2018/42 No reduction of vacation pay for already accrued vacation entitlement in the case of a reduction of weekly working hours later on (GE) |
Tijdschrift | European Employment Law Cases, Aflevering 4 2018 |
Trefwoorden | Paid leave |
Auteurs | Nina Stephan en Paul Schreiner |
SamenvattingAuteursinformatie |
Case Reports |
EELC 2018/46 Limits to a contractual penalty for non-compliance with a non-compete clause (CZ) |
Tijdschrift | European Employment Law Cases, Aflevering 4 2018 |
Trefwoorden | Miscellaneous |
Auteurs | Anna Diblíková |
SamenvattingAuteursinformatie |
The Czech Supreme Court has ruled that the concept of good moral conduct must be taken into account when assessing whether an employee has breached his or her non-compete obligation and thus whether it is fair to demand that the employee pay a contractual penalty for the breach. The Court annulled the penalty. |
Case Reports |
EELC 2018/40 Equal treatment of leased employees by ‘false’ works agreements (AU) |
Tijdschrift | European Employment Law Cases, Aflevering 4 2018 |
Trefwoorden | Temporary agency work, Part-time work |
Auteurs | Sarah Lurf |
SamenvattingAuteursinformatie |
A ‘false’ works agreement, which reduces the standard weekly working hours for permanent staff, also applies to leased employees. However, the pay of leased employees remains governed by the applicable collective bargaining agreement, rather than by the ‘false’ works agreement. Therefore, leased (part-time) employees benefitted from the reduced working hours by the ‘false’ works agreement, but received full pay based on the collective bargaining agreement. |
Case Reports |
EELC 2018/35 Employees who lose their jobs upon retirement are not entitled to statutory severance compensation (NL) |
Tijdschrift | European Employment Law Cases, Aflevering 4 2018 |
Trefwoorden | Age discrimination |
Auteurs | Peter C. Vas Nunes |
SamenvattingAuteursinformatie |
A provision of Dutch law, according to which employees who lose their jobs upon retirement are excluded from the right to statutory severance compensation, is not in breach of the Framework Directive. |
Case Reports |
EELC 2018/39 Supreme Court decision on part-time work and fixed-term employment (DK) |
Tijdschrift | European Employment Law Cases, Aflevering 4 2018 |
Trefwoorden | Part-time work, Fixed-term work |
Auteurs | Christian K. Clasen |
SamenvattingAuteursinformatie |
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. |
Case Reports |
EELC 2018/41 Spanish Supreme Court now aligned with ECJ’s case law: Limitation to pre-transfer liabilities for new contractor under CBA-led transfers that triggers a non-asset based transfer are not valid (SP) |
Tijdschrift | European Employment Law Cases, Aflevering 4 2018 |
Trefwoorden | Transfer of undertaking, Miscellaneous |
Auteurs | Luis Aguilar |
SamenvattingAuteursinformatie |
Following the ECJ’s decision in Somoza Hermo – v – Ilunion Seguridad, C-60/17 (Somoza Hermo) of 11 July 2018, all eyes were on the Spanish Supreme Court. Since 2016, the Court has ruled a number of times that limitations to the liability of the new contractor established in a collective bargaining agreement (‘CBA’) in the context of a CBA-led transfer were valid (see e.g. EELC 2018/21). Somoza Hermo established that a CBA-led transfer that entails a non-asset-based transfer is a transfer within the meaning of the Acquired Rights Directive. Now the Supreme Court (in a decision dated 27 September 2018 taken with one dissenting opinion) is clear that its doctrine must be reviewed and has therefore held that limitations on pre-transfer liability for a new contractor under a CBA-led transfer that trigger a non-asset-based transfer, are not valid. |
Case Reports |
EELC 2018/38 Collective Redundancies: Failure to notify Employment Service cannot be healed by postponing termination (AU) |
Tijdschrift | European Employment Law Cases, Aflevering 4 2018 |
Trefwoorden | Collective redundancies |
Auteurs | Andreas Tinhofer |
SamenvattingAuteursinformatie |
The Austrian Supreme Court has held that the employer must notify the Employment Service (AMS) when it is contemplating collective redundancies, even if they are carried by mutual agreement. The duty of notification is triggered if the employer proposes a mutual termination agreement to a relevant number of employees, provided the offer is binding and can be accepted by the employees within 30 days. If the employer fails to notify the AMS, any subsequent redundancies (or mutual terminations of employment occurring on the employer’s initiative) are void, even if effected after 30 days. |
Case Reports |
EELC 2018/37 Supreme Court rules on discrimination for being overweight (FI) |
Tijdschrift | European Employment Law Cases, Aflevering 4 2018 |
Trefwoorden | Disability discrimination |
Auteurs | Janne Nurminen |
SamenvattingAuteursinformatie |
The Finnish Supreme Court has held that an employer discriminated against an employee by not renewing his employment at the end of a fixed-term contract because he was overweight. |
Case Reports |
EELC 2018/44 Travelling time from home to customers is working time in the absence of a fixed work place (BE) |
Tijdschrift | European Employment Law Cases, Aflevering 4 2018 |
Trefwoorden | Working time |
Auteurs | Dr. Pieter Pecinovsky |
SamenvattingAuteursinformatie |
For workers without a fixed workplace, travelling time between their place of residence and the first customer and travelling time between the last customer and the place of residence constitutes working time. |
Case Reports |
EELC 2018/36 An expectation that a disabled employee should work long hours was potentially discriminatory (UK) |
Tijdschrift | European Employment Law Cases, Aflevering 4 2018 |
Trefwoorden | Disability discrimination |
Auteurs | Tom McEvoy |
SamenvattingAuteursinformatie |
The Court of Appeal has confirmed that an expectation that a disabled employee would work long hours was a ‘provision, criterion or practice’ in a disability discrimination claim regarding reasonable adjustments. It also held that, on the facts, the employer’s conduct had caused the employee to resign and this entitled him to claim constructive unfair dismissal. |
Case Reports |
EELC 2018/45 The limits to checking emails out of business hours (IR) |
Tijdschrift | European Employment Law Cases, Aflevering 4 2018 |
Trefwoorden | Working time |
Auteurs | Lucy O’Neill |
SamenvattingAuteursinformatie |
In a recent decision, the Labour Court awarded an employee € 7,500 for working in excess of 48 hours a week, contrary to working time legislation. The complainant allegedly regularly checked and responded to emails outside of business hours, occasionally after midnight. The Labour Court reiterated it is the employer’s responsibility to ensure that employees are not permitted to work beyond the statutory maximum period and that if an employer is aware that an employee is working excessive hours, must take steps to curtail this. |
Case Reports |
EELC 2018/43 Non-guaranteed and voluntary overtime should be taken into account when calculating holiday pay (UK) |
Tijdschrift | European Employment Law Cases, Aflevering 4 2018 |
Trefwoorden | Paid leave |
Auteurs | Soren Kristophersen |
SamenvattingAuteursinformatie |
The Employment Appeal Tribunal has ruled both non-guaranteed and voluntary overtime should be included in the calculation of holiday pay. |
Case Reports |
2018/34 Stand-by time must be interpreted in the light of ECJ case law (RO) |
Tijdschrift | European Employment Law Cases, Aflevering 3 2018 |
Trefwoorden | Working time |
Auteurs | Andreea Suciu |
SamenvattingAuteursinformatie |
The Supreme Court has ruled that it is at the discretion of the competent national court to assess whether periods of stand-by time are working time. In doing so, the court should apply Romanian law as interpreted in the light of ECJ case law. |
Case Reports |
2018/32 When is travelling time working time? (NO) |
Tijdschrift | European Employment Law Cases, Aflevering 3 2018 |
Trefwoorden | Working time |
Auteurs | Marianne Jenum Hotvedt en Anne-Beth Engan |
SamenvattingAuteursinformatie |
The Norwegian Supreme Court concludes that time spent on a journey ordered by the employer, to and from a place other than the employee’s fixed or habitual place of work, should be considered working time within the meaning of the statutory provisions implementing the Working Time Directive (2003/88/EC). This ruling takes into account the Advisory Opinion of the EFTA Court. |
Case Reports |
2018/33 Availability periods: working hours or rest periods? (PO) |
Tijdschrift | European Employment Law Cases, Aflevering 3 2018 |
Trefwoorden | Working time |
Auteurs | Dora Joana |
SamenvattingAuteursinformatie |
The Oporto Court of Appeal held that the employee’s availability 24 hours per day, 6 days per week, breaches the employee’s right to rest. However, such breach does not qualify the availability periods as overtime. The Court also found that the continuous use of a GPS system breached the employee’s right to privacy. |
Case Reports |
2018/31 Working as a ‘relief parent’ for a child protection association falls within the scope of the Working Time Directive and the Finnish Working Hours Act (FI) |
Tijdschrift | European Employment Law Cases, Aflevering 3 2018 |
Trefwoorden | Working time |
Auteurs | Janne Nurminen |
SamenvattingAuteursinformatie |
In its follow-up judgment to the ECJ’s preliminary ruling in the Hälvä case (C-175/16), the Finnish Supreme Court has held that ‘relief parents’ relieving foster parents in a child protection association on the latter’s holidays fall within the scope of the Finnish Working Hours Act even though the work was performed in the homes provided by the association for the children to live in. Therefore, the relief parents were entitled to the rights guaranteed by the Act (subject to the fact that some of their claims had expired). |
Case Reports |
2018/24 Discrimination arising from a disability – no need for knowledge (UK) |
Tijdschrift | European Employment Law Cases, Aflevering 3 2018 |
Trefwoorden | Disability discrimination |
Auteurs | Emma Langhorn |
SamenvattingAuteursinformatie |
The Court of Appeal has confirmed that discrimination arising from disability had occurred when an employer dismissed an employee for misconduct which was connected to the employee’s disability, even though the employer had no knowledge of the connection. |
Case Reports |
2018/25 Two new cases consider whether fathers’ parental leave should be paid the same as mothers’ maternity leave (UK) |
Tijdschrift | European Employment Law Cases, Aflevering 3 2018 |
Trefwoorden | Gender discrimination |
Auteurs | Ludivine Gegaden |
SamenvattingAuteursinformatie |
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. |
Case Reports |
2018/23 Labour Court treats the consequences of cancer as a disability (BE) |
Tijdschrift | European Employment Law Cases, Aflevering 3 2018 |
Trefwoorden | Disability discrimination |
Auteurs | Gautier Busschaert |
SamenvattingAuteursinformatie |
The Labour Court of Brussels treats the long-term effects of cancer as a disability in accordance with the case law of the ECJ. This has triggered an obligation on employers to consider making reasonable adjustments before looking at dismissal. |
Case Reports |
2018/30 Harmonising terms of employment following a transfer is no simple matter (NL) |
Tijdschrift | European Employment Law Cases, Aflevering 3 2018 |
Trefwoorden | Transfer, Employment terms |
Auteurs | Shamy Sripal |
SamenvattingAuteursinformatie |
The transferee in this case attempted to replace the transferred employees’ salaries with lower in accordance with its collective agreement, compensating for the reduction by means of a ‘personal allowance’, which it then proceeded to reduce by a set percentage based on the age of the employees each time there was a wage increase. The court held that this ‘basket comparison’ method of harmonising the wages of old and new staff was at odds with Directive 2001/23, rejecting the transferee’s argument that the ‘ETO’ provision in that directive permits such an amendment of the terms of employment. |