Zoekresultaat: 15 artikelen

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    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.


Richard Lister
Richard Lister is a Managing Practice Development Lawyer at Lewis Silkin LLP.
Case Reports

2020/22 Works council’s right to inspect remuneration lists (GE)

Tijdschrift European Employment Law Cases, Aflevering 2 2020
Trefwoorden Information and Consultation, Privacy
Auteurs Robert Pacholski
SamenvattingAuteursinformatie

    The Federal Labour Court (Bundesarbeitsgericht, “BAG”) has held that a works council must be provided with the documents necessary for carrying out its duties at any time on request. A works committee or another committee of the works council formed in accordance with the provisions of the Works Constitution Act (Betriebsverfassungsgesetz, “BetrVG”) is entitled to inspect the lists of gross wages. This right to inspect is not limited to anonymized gross pay lists. Data protection considerations do not dictate that the right is limited to anonymized gross payrolls. The processing of personal data associated with the right of inspection is permitted under the European General Data Protection Regulation (“GDPR”) and the German Federal Data Protection Act (Bundesdatenschutzgesetz, “BDSG”).


Robert Pacholski
Robert Pacholski is an attorney-at-law at Luther Rechtsanwaltsgesellschaft mbH.
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.


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

    The Austrian Supreme Court has confirmed that an employer must pay compensation to an employee due to a violation of the employee’s privacy. The employer implemented a GPS system in its company cars without the employee’s knowledge and without legal basis.


Lukas Disarò
Lukas Disarò is an Attorney-at-Law at law Firm MMag. Gregor Winkelmayr, MBA, LL.M (Essex).

    The German Federal Labour Court (Bundesarbeitsgericht, the ‘BAG’) has held that pre-employment as a freelancer must be taken into account in relation to the number of years having been with a firm as a freelancer when assessing the legality of a fixed-term contract due to the character of the specific deployment.


Sean Illing
Sean Illing is an Associate Solicitor at Lewis Silkin LLP.
Case Reports

2019/5 For how long may data of a job applicant be stored? (AT)

Tijdschrift European Employment Law Cases, Aflevering 1 2019
Trefwoorden Privacy, Discrimination, General
Auteurs Sophie Mantler en Andreas Tinhofer
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.


Sophie Mantler
Sophie Mantler is a senior associate and

Andreas Tinhofer
Andreas Tinhofer is a partner at MOSATI Rechtsanwälte in Vienna (www.mosati.at).

    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.


Dora Joana
Dora Joana is a managing associate with SRS Advogados, Lisbon.

    Racist ‘liking’ on Facebook may justify dismissal for serious misconduct, says the Labour Court of Liège in a decision of 24 March 2017. This case is interesting because, to the author’s knowledge, it is the first time that a simple ‘like’ (as opposed to a proper comment) on Facebook is assessed by a Belgian judge with a view to validate a dismissal for serious misconduct. This case also raises serious questions about the limits to the freedom of expression in social media.


Gautier Busschaert
Gautier Busschaert is an attorney at Van Olmen & Wynant in Brussels, www.vow.be.

    The German federal court for labour law matters, the Bundesarbeitsgericht (the ‘BAG’), has held that evidence cannot be used in a dismissal lawsuit if the employer has obtained it from long-term surveillance using keylogger-software. Employers must not keep their employees under constant surveillance and must therefore expect their legal position to be weak if they try to dismiss an employee based on findings from such monitoring. The court ruling preceded the ECtHR Barbulescu ruling of 5 September 2017 (featured in EELC 2017/4) in a similar case.


Paul Schreiner
Paul Schreiner is an attorney at law at Luther Rechtsanwaltsgesellschaft mbH.
Case Reports

2017/21 Legal rules for employers for monitoring employees in Slovakia (SK)

Tijdschrift European Employment Law Cases, Aflevering 2 2017
Trefwoorden Privacy, Unfair dismissal
Auteurs Gabriel Havrilla en Richard Sanák
SamenvattingAuteursinformatie

    An employer can monitor an employee’s emails provided it has made it clear beforehand that it might do so. It is permissible for the employer to prohibit employees from using its electronical equipment for private use, but if the employer is going to check whether this rule was being complied with, it needs to have a significant reason to do so and must respect the principles of legality legitimacy and proportionality.


Gabriel Havrilla

Richard Sanák
Gabriel Havrilla and Richard Sanák are respectively managing partner and junior associate with law firm Legal Counsels s.r.o., www.legalcounsels.sk.
Case Reports

2017/20 Data gathered by GPS as a basis for disciplinary dismissal (PT)

Tijdschrift European Employment Law Cases, Aflevering 2 2017
Trefwoorden Privacy
Auteurs Maria de Lancastre Valente en Mariana Azevedo Mendes
SamenvattingAuteursinformatie

    Distance-related data gathered by GPS and data reported manually by the employee (a sales representative at a pharmaceutical company) are valid and admissible sources of evidence in the context of a disciplinary dismissal procedure. This decision is innovative in that it contradicts the usual view of the Supreme Court of Justice on the scope of ‘distance-controlled supervision’ for the purposes of assessment of employee conduct.


Maria de Lancastre Valente

Mariana Azevedo Mendes
Maria de Lancastre Valente and Mariana Azevedo Mendes are respectively a Managing Associate and a Trainee Associate at SRS Advogados, Portugal; www.srslegal.pt.

    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.

    The Curia (Hungarian Supreme Court) stated in its ruling that length of service is not a protected characteristic under discrimination law. Length of employment cannot be considered as a core feature of the individual based on which he or she would belong to a specific group, as it is a result of his or her own actions. It therefore cannot be treated as a ‘miscellaneous’ ground for the purposes of the Hungarian Equal Treatment Act. Further, length of service cannot be linked to age discrimination. The length of service of an employee is not directly connected to age, therefore treatment of an employee based on length of service with a specific organisation cannot be considered age discriminatory.
    A claim based on discrimination must be supported by a comparator. Employees with different educational backgrounds and jobs with different the educational requirements, are not comparable for the purposes of equal treatment law.


Gabriella Ormai
Gabriella Ormai is the managing partner of the Budapest office of CMS Cameron McKenna LLP (www.cms-cmck.com).

    The Employment Appeal Tribunal (‘EAT’) has upheld an Employment Tribunal’s (‘ET’s’) finding that Article 8 of the European Convention on Human Rights (‘ECHR’) was not engaged when an employer used private material obtained by the police during a criminal investigation as part of an internal disciplinary investigation into one of its employees. This material had been taken from the claimant’s phone by the police, who then provided it to the employer (stating that it could be used for the purposes of their investigation). The facts in this case were unusual. Whether or not an employee has a reasonable expectation of privacy in similar circumstances will depend on all the facts, including the source of the information, whether the employee has expressly objected to its use, and whether the relevant conduct took place in, or was brought into, the workplace.


Anna Bond
Anna Bond is an associate at Lewis Silkin LLP: www.lewissilkin.com.

    A decision issued by the Constitutional Court on 3 March 2016 upholds a High Court decision on whether evidence obtained through video surveillance at the work place without previously informing the employee or the works council of the recording infringes employees’ privacy. The existence of cameras in the workplace was only made known via a sticker on the shop window, but the Constitutional Court found that it provided sufficient information to employees. The Court found that, as there was a prior suspicion of theft by the employee, temporary recording of the cashier area was lawful and did not require prior consent. The judgment sets out the criteria to be used to determine a fair balance between the competing interests of employee privacy and the employer’s right to compliance.


Sonia Cortes
Sonia Cortes is a partner with Abdón Pedrajas & Molero in Barcelona, www.abdonpedrajas.com. Special thanks to Isabel Ruano and Carla Baussa for their help in preparing this case report.
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