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. |
Case Reports |
2021/20 Qualification of on-call duty as actual working time (LU) |
Tijdschrift | European Employment Law Cases, Aflevering 2 2021 |
Trefwoorden | Working Time |
Auteurs | Michel Molitor |
SamenvattingAuteursinformatie |
Case Reports |
2021/24 Supreme Court confirms that Uber drivers are ‘workers’ (UK) |
Tijdschrift | European Employment Law Cases, Aflevering 2 2021 |
Trefwoorden | Employment Status, Working Time |
Auteurs | Colin Leckey |
SamenvattingAuteursinformatie |
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. |
Case Reports |
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Tijdschrift | European Employment Law Cases, Aflevering 2 2021 |
Trefwoorden | Race, Nationality Discrimination, Discrimination General |
Auteurs | Zsofia Olah |
SamenvattingAuteursinformatie |
This case involved an employee who claimed that her two consecutive employers breached the principle of equal treatment during their employment relationships in relation to her belonging to the Roma minority. The employee built her case on the decision of the Equal Treatment Authority, which declared that her employers discriminated against her. The Curia (the highest judicial authority in Hungary) found that the decision of another authority has no binding effect on a court according to Act III of 1952 on Civil Procedure and that in cases concerning equal treatment, the burden of proof lies on the defendant (employer) to prove that there is no link between the disadvantage suffered by the plaintiff (employee) and her protected characteristic. The Curia and regional courts also found that the employer fulfils this obligation if it successfully proves that it assessed the applicant’s qualifications, professional suitability and attitude towards work when it decided on the question of whom to employ. |
Case Reports |
2021/23 Crowdworking: An occupation between self-employment and dependence (GE) |
Tijdschrift | European Employment Law Cases, Aflevering 2 2021 |
Trefwoorden | Employment Status |
Auteurs | Katharina Gorontzi en Jana Voigt |
SamenvattingAuteursinformatie |
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. |
Case Reports |
2021/17 The Court of Appeal clarifies the Irish position on dismissal of an employee during the probation period (IR) |
Tijdschrift | European Employment Law Cases, Aflevering 2 2021 |
Trefwoorden | Unfair Dismissal |
Auteurs | Orla O’Leary en Laura Ryan |
SamenvattingAuteursinformatie |
The Court of Appeal has overturned a High Court decision which granted injunctive relief to prevent the defendant from removing the plaintiff from his position as chief financial officer during his probationary period. |
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. |
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 |
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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. |