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Case Reports |
2020/49 Employing the former employees of a former service provider represents transfer of undertakings (RO) |
Tijdschrift | European Employment Law Cases, Aflevering 4 2020 |
Trefwoorden | Transfer of Undertakings |
Auteurs | Andreea Suciu en Teodora Manaila |
SamenvattingAuteursinformatie |
Case Reports |
2020/50 Transfer-related contractual changes void even if beneficial for employees (UK) |
Tijdschrift | European Employment Law Cases, Aflevering 4 2020 |
Trefwoorden | Transfer of Undertakings, Employment Terms |
Auteurs | Lisa Dafydd |
SamenvattingAuteursinformatie |
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. |
Case Reports |
2020/23 The Supreme Court reiterates the importance of retention of an organizational and functional link between the business factors transferred, a prerequisite in the existence of a transfer of undertaking (GR) |
Tijdschrift | European Employment Law Cases, Aflevering 2 2020 |
Trefwoorden | Transfer of undertakings, Transfer |
Auteurs | Effie Mitsopoulou |
SamenvattingAuteursinformatie |
The Greek Supreme Court, in a case about the transfer of a business and the obligation on the transferee to continue employing the transferred employees, underlined the importance of a thorough and genuine control on all factors to be taken into consideration in order to conclude on the existence of a transfer of undertaking or not: the business transferred must retain an autonomous economic identity, in the sense that the functional link between the different factors transferred is retained, thus allowing the new entity to use them in order to exercise an economic activity identical or similar to the previous one. |
Case Reports |
2020/18 Prohibition of dismissal of pregnant employee (RO) |
Tijdschrift | European Employment Law Cases, Aflevering 2 2020 |
Trefwoorden | Gender discrimination |
Auteurs | Andreea Suciu en Teodora Mănăilă |
SamenvattingAuteursinformatie |
Analysing the national legal framework in relation to the protection of pregnant employees and employees who have recently given birth or are breastfeeding, provisions which transposed the regulations of Directive 92/85/EEC and of the conclusions in case C-103/16, Jessica Porras Guisado – v – Bankia S.A. and Others, the Constitutional Court of Romania ascertained that the dismissal prohibition of a pregnant employee is strictly restricted to reasons that have a direct connection with the employee’s pregnancy status. As for other cases where the termination of the employment contract is the result of disciplinary misconduct, unexcused absence from work, non-observance of labour discipline, or termination of employment for economic reasons or collective redundancies, the employer must submit in writing well-reasoned grounds for dismissal. |
Case Reports |
2020/21 Employer not liable for misuse of personal data by ‘rogue’ employee (UK) |
Tijdschrift | European Employment Law Cases, Aflevering 2 2020 |
Trefwoorden | Privacy |
Auteurs | Richard Lister |
SamenvattingAuteursinformatie |
The Supreme Court has allowed an appeal by one of the UK’s major supermarket chains, overturning a finding that it was vicariously liable for a rogue employee’s deliberate disclosure of payroll data related to some 100,000 co-workers, of whom 10,000 brought a group claim for damages. |
Case Reports |
2020/20 Dismissal unfair where decision-maker was not given accurate information (UK) |
Tijdschrift | European Employment Law Cases, Aflevering 2 2020 |
Trefwoorden | Unfair Dismissal |
Auteurs | Ludivine Gegaden |
SamenvattingAuteursinformatie |
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. |
Case Reports |
2020/19 Relationship between time of notification of collective redundancies and time of notice of termination (GE) |
Tijdschrift | European Employment Law Cases, Aflevering 2 2020 |
Trefwoorden | Collective Dismissal |
Auteurs | Marcus Bertz |
SamenvattingAuteursinformatie |
The notice of collective redundancies required to be given to an employment agency pursuant to Section 17(1) of the German Protection Against Unfair Dismissal Act (Kündigungsschutzgesetz, ‘KSchG’) can only be effectively submitted if the employer has already decided to terminate the employment contract at the time of its receipt by the employment agency. Notices of termination in collective redundancy proceedings are therefore effective – subject to the fulfilment of any other notice requirements – if the proper notice is received by the competent employment agency before the employee has received the letter of termination. |
Case Reports |
2020/16 Nature and extent of ‘reasonable accommodation’ to be provided to employees with disabilities (IE) |
Tijdschrift | European Employment Law Cases, Aflevering 2 2020 |
Trefwoorden | Disability Discrimination |
Auteurs | Orla O’Leary |
SamenvattingAuteursinformatie |
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. |
Case Reports |
2020/35 Employment contract for an indefinite term with exclusion of work and remuneration for a certain period is valid and does not conflict with the law on fixed-term work (GE) |
Tijdschrift | European Employment Law Cases, Aflevering 3 2020 |
Trefwoorden | Fixed-Term Work |
Auteurs | Othmar K. Traber |
SamenvattingAuteursinformatie |
The Federal Labour Court of Germany (Bundesarbeitsgericht, ‘BAG’) had to decide on a case in which an employee argued that his contract was not terminated by a provision that restricted the mutual duties to a certain time period for the yearly season within his contract and that the employer had to employ him during the off season. However, his lawsuit was unsuccessful as the Court found that, even though he did have an indefinite contract, the employer was not obliged to employ and pay him during the off season due to the valid provision of fixed-term employment for the time from April to October during the time of the season. |
Case Reports |
2020/34 Challenge to validity of Workplace Relations Act 2015 unsuccessful (IR) |
Tijdschrift | European Employment Law Cases, Aflevering 3 2020 |
Trefwoorden | Unfair Dismissal, Fair Trial, Miscellaneous |
Auteurs | Orla O’Leary |
SamenvattingAuteursinformatie |
A recent challenge to the constitutionality of the Irish Workplace Relations Commission (WRC) has failed. The applicant in the case at hand argued that the WRC was unconstitutional for two reasons: (a) that the WRC carries out the administration of justice in breach of the general constitutional rule that only the courts may administer justice; and (b) several of the statutory procedures of the WRC were so deficient that they failed to vindicate the applicant’s personal constitutional rights. The High Court of Ireland dismissed both arguments. |
Case Reports |
2020/37 Can the exception clause of Article 8 Rome I save a Turkish airline company from the application of Dutch dismissal law in a dispute with an Amsterdam home-based co-pilot? (NL) |
Tijdschrift | European Employment Law Cases, Aflevering 3 2020 |
Trefwoorden | Private International Law, Applicable Law |
Auteurs | Amber Zwanenburg en Jan-Pieter Vos |
SamenvattingAuteursinformatie |
The central question in this case was what was the objectively applicable law to an employment contract concluded between a Turkish airline and a Dutch co-pilot, in accordance with Article 8 Rome I. The ruling is particularly interesting for the relation between the habitual place of work and the exception clause and points to the elements that should be taken into account. |
Case Reports |
2020/39 Termination of franchise arrangement and entering into subsequent arrangement constitute a transfer of undertaking (IR) |
Tijdschrift | European Employment Law Cases, Aflevering 3 2020 |
Trefwoorden | Transfer of undertakings |
Auteurs | Orla O’Leary |
SamenvattingAuteursinformatie |
The Irish Workplace Relations Commission has found that the termination of a franchise arrangement between a post office and a retail partner and a subsequent arrangement with another retail partner constituted a transfer of undertaking. |
Case Reports |
2020/4 Admissibility of Employers’ Requirements regarding Religious Symbols in Workplace (GE) |
Tijdschrift | European Employment Law Cases, Aflevering 1 2020 |
Trefwoorden | Religious discrimination |
Auteurs | Caroline Dressel |
SamenvattingAuteursinformatie |
Many national decisions in Germany in the past had to deal with employers’ requirements regarding religious symbols in the workplace. Also, in 2017, the ECJ has dealt with two matters of such. Whilst the ECJ strictly refers to the principles of entrepreneurial freedom, the Federal Labour Court (Bundesarbeitsgericht, the ‘BAG’) tends to give priority to religious freedom. Last year, the BAG appealed to the ECJ for final clarification, in particular regarding the relationship between the basic rights of entrepreneurs and the constitutional right to religious freedom, by way of a preliminary ruling procedure with its decision dated 30 January 2019. |
Case Reports |
2019/44 Equal pay principle – New measures to reduce the gender pay gap – the example of Switzerland (CH) |
Tijdschrift | European Employment Law Cases, Aflevering 4 2019 |
Trefwoorden | Gender discrimination |
Auteurs | Sara Rousselle-Ruffieux |
SamenvattingAuteursinformatie |
The European Commission recently conducted a public consultation on the measures that may be taken to ensure the full application of the principle of equal pay between women and men. Its evaluation report is expected before the end of this year. The new Swiss legislation on monitoring and disclosure of the gender pay gap may be inspiration for future EU initiatives in this area. |
Case Reports |
2019/47 Transfer of undertakings does not include temporary agency workers (AT) |
Tijdschrift | European Employment Law Cases, Aflevering 4 2019 |
Trefwoorden | Transfer of undertakings, Transfer, Employees who transfer/refuse to transfer |
Auteurs | Thomas B. Pfalz |
SamenvattingAuteursinformatie |
In a series of rulings the Austrian Supreme Court has made it clear that temporary agency workers are transferred to the transferee only if they are assigned to the transferor on a permanent basis. According to the Court, the facts of the cases at hand are not comparable to those of the ECJ ruling in Albron Catering BV (C-242/09). Hence the temporary agency workers remain with their original employer. However, some aspects of the Court’s reasoning seem unclear if not contradictory with regard to other recent judgments. |
Case Reports |
2019/43 Dismissal after childbirth-related leave (DK) |
Tijdschrift | European Employment Law Cases, Aflevering 4 2019 |
Trefwoorden | Gender discrimination |
Auteurs | Christian K. Clasen |
SamenvattingAuteursinformatie |
The Danish Western High Court has ruled that the dismissal of an employee shortly after returning from childbirth-related leave did not constitute discrimination within the meaning of the Danish Act on Equal Treatment of Men and Women. |
Case Reports |
2019/32 Belgian jurisdiction and labour law apply despite contractual choice for Irish law and jurisdiction |
Tijdschrift | European Employment Law Cases, Aflevering 3 2019 |
Trefwoorden | Private International Law |
Auteurs | Gautier Busschaert |
SamenvattingAuteursinformatie |
The Latvian Supreme Court recently used the ECJ Max Planck and Kreuziger judgments to explain how an employer can escape its obligation to compensate an employee for unused leave at the end of the employment relationship. The employer must prove that (a) it was possible for the employee to use the leave, and (b) the employer has in good time informed the employee that leave, if not used, might be lost and will not be compensated. |
Case Reports |
2019/37 The non-competition duties of a dismissed employee exempted from work during the notice period (LU) |
Tijdschrift | European Employment Law Cases, Aflevering 3 2019 |
Trefwoorden | Miscellaneous |
Auteurs | Michel Molitor en Régis Muller |
SamenvattingAuteursinformatie |
The Luxembourg Court of Appeal (Cour d’appel de Luxembourg) confirmed that an employee dismissed with notice and exempted from performing their work during the notice period is no longer bound by the non-competition duties arising from their loyalty obligation and can therefore engage in an employment contract with a direct competitor of their former employer during that exempted notice period. However, the Court of Appeal decided that, even if the former employee is in principle entitled to use the know-how and knowledge they acquired with their former employer, the poaching of clients during the notice period must, due to the facts and circumstances and in the light of the rules applicable in the financial sector, be considered as an unfair competition act and therefore constitutes serious misconduct justifying the termination of the employment contract with immediate effect. |
Case Reports |
2019/29 Eweida versus Achbita: a storm in a teacup? (EU) |
Tijdschrift | European Employment Law Cases, Aflevering 3 2019 |
Trefwoorden | Religious discrimination |
Auteurs | Morwarid Hashemi LLM |
SamenvattingAuteursinformatie |
Most scholars have argued that the Achbita judgment is not in line with the jurisprudence of the ECtHR, in particular with the Eweida judgment, and gives less protection to the employee than granted by the ECtHR. In this article, I provide a different perspective on the relation between both judgments and nuance the criticisms that followed the Achbita judgment. |
Case Reports |
2019/33 Is hiring of employees of a former service provider subject to transfer of undertaking legislation? (IT) |
Tijdschrift | European Employment Law Cases, Aflevering 3 2019 |
Trefwoorden | Transfer of undertakings |
Auteurs | Caterina Rucci |
SamenvattingAuteursinformatie |
The Italian Court of Cassation has interpreted a new provision referring to the obligations of the new service provider towards the employees of the former provider. |