Zoekresultaat: 16 artikelen

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Jaar 2017 x Rubriek Case Reports x

    In February 2017, a female worker was served notice of termination of her employment contract for economic reasons (odpoved pogodbe o zaposlitvi iz poslovnih razlogov). The reasons for the termination were: (i) a substantial decrease in orders, (ii) reduced realisation and (iii) reduced demand for particular products. In particular, the company had lost one of its clients in the automotive industry. The worker brought an action claiming that (i) the reason for the termination was not logical (this included challenging the arguments made in the termination letter because the business results in 2012, when the notice was served, were better than in 2011); (ii) the employer continuously requested employees to work overtime (but note that the overtime was within the statutory limits); and (iii) she had been discriminated against and the working conditions were poor in various respects. The first and second instance courts denied her claim and found the termination lawful.


Petra Smolnikar
Petra Smolnikar is the founder and managing partner of PETRA SMOLNIKAR LAW, in Ljubljana, Slovenia: http://petrasmolnikarlaw.eu.

    The highest administrative court in the Netherlands has delivered a razor-sharp ruling on the intra-community service provision set out in Articles 56 and 57 of the Treaty on the Functioning of the European Union). This concerns ‘new’ EU-nationals who are still under transitional measures with regard to access to the labour markets of ‘old’ EU Member States. The judgment was preceded by a request from the Chairman to a State Councillor Advocate General to deliver his opinion on various aspects of punitive administrative law practice in the Netherlands. Both the opinion and the judgment are a welcome clarification and addition (or even correction) on the practice.


Bart J. Maes
Bart J. Maes is a partner at Maes Staudt Advocaten N.V. in Eindhoven, the Netherlands (www.maes-staudt.nl).

    A privately operated public bus service was transferred back to the municipality. This constituted the transfer of an undertaking even though the municipality did not buy the buses from the bus operator.


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

    The Czech Supreme Court has given guidance on the limits to employees’ free speech. Employees must not engage in any conduct, even outside working hours, that could actually or potentially damage their employer’s business. Any criticism of an employer must be based on facts and not be misleading or defamatory. Inappropriate or unjustified criticism may lead to immediate termination of employment.


Anna Diblíková
Anna Diblíková is an attorney at Noerr in Prague, www.noerr.com.

    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.

    A recent decision by the Labour Court found that a policy requiring employees to speak English in the workplace constituted discrimination on grounds of national origin but was objectively justifiable.


Orla O’Leary
Orla O’Leary is a Senior Associate at Mason Hayes & Curran.
Case Reports

2017/25 Company practice versus collective bargaining agreement in the formation of acquired rights (PT)

Tijdschrift European Employment Law Cases, Aflevering 3 2017
Trefwoorden Collective labour law, Collective agreements
Auteurs Maria de Lancastre en Mariana Azevedo Mendes
SamenvattingAuteursinformatie

    The Supreme Court of Justice recently decided that the amount of time a practice has been observed in a collective bargaining agreement (in this case, four years) was not relevant to the acquisition of an entitlement. The entitlement in the case at hand was a public holiday on Shrove Tuesday.


Maria de Lancastre
Maria de Lancastre Valente is a Managing Associate at SRS Advogados, Portugal (www.srslegal.pt).

Mariana Azevedo Mendes
Mariana Azevedo Mendes is a Trainee Associate at SRS Advogados, Portugal.

    After the transfer of an undertaking (or part of one) the new employer cannot modify the transferred workers’ wages without their consent. This decision of the Belgian Supreme Court of 14 November 2016 leaves no leeway to the transferee to unilaterally substitute certain contractual elements with new ones, even if the new salary scheme is more advantageous overall.


Cecilia Lahaye
Cecilia Lahaye is an attorney at Van Olmen & Wynant in Brussels (www.vow.be).
Case Reports

2017/31 Lawful positive discrimination in favour of women (FR)

Tijdschrift European Employment Law Cases, Aflevering 3 2017
Trefwoorden Discrimination (other), Positive discrimination
Auteurs Claire Toumieux en Susan Ekrami
SamenvattingAuteursinformatie

    Company agreement provisions granting a half-day of leave to female employees on International Women’s Day constitute lawful positive discrimination in favour of women.


Claire Toumieux
Claire Toumieux is a partner with Allen & Overy LLP in Paris (www.allenovery.com).

Susan Ekrami
Susan Ekrami is a senior associate with Allen & Overy LLP in Paris (www.allenovery.com).

    The transferee dismissed the plaintiff immediately upon the transfer, for business reasons. The plaintiff claimed the dismissal was invalid because the transferee did not consult the union representatives who were transferred. The Supreme Court held that, in the absence of a works council, the union representative has, by law, all rights and obligations with regard to information and consultation. Failure to abide by the information and consultation rules rendered the decision to dismiss invalid.


Dina Vlahov Buhin
Dina Vlahov Buhin is a lawyer with Vlahov Buhin & Šourek in cooperation with Schoenherr Attorneys at Law, www.schoenherr.eu.

    The Supreme Court ruled that evidence of wrongdoing obtained by a company against two former executives was admissible in court, as it was legitimate that the company should have the opportunity to defend its right to free competition. In such cases, the executives’ right to privacy of communication should be balanced against the company’s freedom of competition.


Effie Mitsopoulou
Effie Mitsopoulou is a partner with Kyriakides Georgopoulos Law Firm in Athens, www.kglawfirm.gr.
Case Reports

2017/23 Suspension of a recovery plan is not a transfer-triggering event (BU)

Tijdschrift European Employment Law Cases, Aflevering 2 2017
Trefwoorden Transfer of undertaking, Employees who transfer/refuse to transfer
Auteurs Kalina Tchakarova
SamenvattingAuteursinformatie

    The Bulgarian Supreme Court ruled to the effect that the Bulgarian Labour Code (‘BLC’) provides for the automatic transfer of employees only in the circumstances set out in the BLC. The employment protection given by the BLC cannot either be broadened or narrowed. The suspension of a recovery plan which leads to the restoration of insolvency proceedings (and therefore the return of the company from the transferee that had been executing the failed recovery plan back into the hands of the transferor) did not lead to the automatic transfer of employment.


Kalina Tchakarova
Kalina Tchakarova is a partner at Djingov, Gouginski, Kyutchukov and Velichkov, Sofia, www.dgkv.com.

    Following consultations with its employees in accordance with the Finnish Codetermination Act (334/2007), a company informed the employees that it would close down its current office premises and move its operations, including all of its employees, to another location. An employee, whose employment contract expressly stipulated the location of the old office as the fixed place of work, refused to transfer and did not arrive at the new place of work after the transfer. The company considered the employee’s absence unjustified and terminated her employment with immediate effect. The Supreme Court held that an employer can, as an alternative to termination of employment, unilaterally amend material terms of employment provided it notifies the employees sufficiently clearly of the terms being amended, the time when the new terms would come into effect, the grounds for termination, and the consequences of not accepting the amendments.


Kaj Swanljung
Kaj Swanljung and Janne Nurminen are respectively a Senior Counsel and a Senior Associate with Roschier in Helsinki, www.roschier.com.

Janne Nurminen
Case Reports

2017/10 Uber drivers found to be workers (UK)

Tijdschrift European Employment Law Cases, Aflevering 1 2017
Trefwoorden Employment Tribunal
Auteurs Bethan Carney
SamenvattingAuteursinformatie

    In a much publicised case, Uber drivers have won a first instance employment tribunal finding that they are ‘workers’ and not self-employed contractors. This decision means that they are entitled to basic protections, such as the national minimum wage, paid holiday (under the Working Time Directive) and protection against detriment for ‘blowing the whistle’ on wrong doing. The decision could have substantial financial consequences for Uber, which has around 40,000 drivers in the UK but Uber has already confirmed that it will appeal the decision, so we are unlikely to have a final determination on this question for some time.


Bethan Carney
Bethan Carney is a lawyer at Lewis Silkin LLP: www.lewissilkin.com.

    In a precedent-setting case, the Danish Supreme Court recently ruled that a pregnant employee under notice, who claimed discrimination because she had not been reassigned to a vacant position that arose during the notice period, was not discriminated against.


Mariann Norrbom
Mariann Norrbom is a lawyer at Norrbom Vinding in Copenhagen, www.norrbomvinding.com.

    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.
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