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 |
2019/44 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 |
Case Reports |
2019/45 Usage of fixed-term employment contracts for professors restricted (LV) |
Tijdschrift | European Employment Law Cases, Aflevering 4 2019 |
Trefwoorden | Fixed-term work |
Auteurs | Andis Burkevics |
SamenvattingAuteursinformatie |
The Constitutional Court of the Republic of Latvia has ruled that provisions of the Law on Higher Education Institutions stipulating that professors and associate professors are elected to the office for a fixed period of time, i.e. for six years, and that only fixed-term employment contracts are to be concluded with them are not compatible with the Constitution of the Republic of Latvia (Latvijas Republikas Satversme) (the ‘Constitution’), which among other things provides that everyone has the right to freely choose their employment and workplace according to their abilities and qualifications. The restriction of this right in this case cannot be regarded as proportionate since the legislator has failed to implement the requirements of the Fixed-term Work Directive 99/70/EC. |
Case Reports |
2019/51 Stand-by time from home is paid working time (RO) |
Tijdschrift | European Employment Law Cases, Aflevering 4 2019 |
Trefwoorden | Working time |
Auteurs | Andreea Suciu en Gabriela Ion |
SamenvattingAuteursinformatie |
Stand-by time from home represents working time of medical personnel even for the periods when no medical activity was actually performed (no attendance at the hospital was required), the salary rights for such period being determined as a percentage of the hourly rate for the basic salary and the number of hours when stand-by time from home was performed. |
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 |
2019/50 Damages for overtime work exceeding rules of the Working Time Directive can be subject to preclusive periods (GE) |
Tijdschrift | European Employment Law Cases, Aflevering 4 2019 |
Trefwoorden | Working time, Miscellaneous |
Auteurs | Othmar K. Traber |
SamenvattingAuteursinformatie |
The Federal Labour Court had to decide on a case in which an employee asserted claims for damages against his public employer on account of an overtime regulation which infringed European law. However, because he had failed to comply with the time limits, his lawsuit was unsuccessful in the final instance. |
Case Reports |
2019/48 Transfer of undertaking applicable in case of delegation of a public service (RO) |
Tijdschrift | European Employment Law Cases, Aflevering 4 2019 |
Trefwoorden | Transfer of undertakings, Transfer |
Auteurs | Ioana Cazacu |
SamenvattingAuteursinformatie |
The Supreme Court found that the Court of Appeal did not properly examine whether the difference of treatment of employees based on a social plan may be justified. |
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 |
2019/49 Expiration of leave only with prior information from the employer (GE) |
Tijdschrift | European Employment Law Cases, Aflevering 4 2019 |
Trefwoorden | Paid leave |
Auteurs | Daniel Zintl |
SamenvattingAuteursinformatie |
The Federal Labour Court (Bundesarbeitsgericht – BAG) has decided that the entitlement to paid annual leave only expires at the end of the calendar year or at the end of a carry-over period if the employer has previously put the employee in a position to take his leave and yet the employee has not taken the leave out of his own free will. The court held that the employer must cooperate in granting the leave. He has to encourage the employee to take his – concrete numbered - leave and inform him accurately and in good time, that the entitlement to paid leave would otherwise expire. |
Case Reports |
2019/46 Robbery attack: the responsibility of the employer? (SI) |
Tijdschrift | European Employment Law Cases, Aflevering 4 2019 |
Trefwoorden | Health and safety, Miscellaneous |
Auteurs | Petra Smolnikar en Romana Ulcar |
SamenvattingAuteursinformatie |
A worker was performing regular work tasks at their workplace when an attempted robbery took place. The worker suffered serious facial injuries as a result of an assault by one of the robbers and they filed a lawsuit against their employer claiming the latter was fully liable (both objectively and subjectively) for the work accident entitling them to reimbursement of all damages resulting from the accident. |
Case Reports |
2019/42 Discrimination because of a perceived disability is unlawful (UK) |
Tijdschrift | European Employment Law Cases, Aflevering 4 2019 |
Trefwoorden | Age discrimination |
Auteurs | Bethan Carney |
SamenvattingAuteursinformatie |
The Court of Appeal (CA) has ruled that it was unlawful to discriminate against an employee because of a mistaken perception that she had a progressive condition which would make her unable to perform the full functions of the role in future. |
Case Reports |
2019/41 A question of age discrimination (NL) |
Tijdschrift | European Employment Law Cases, Aflevering 4 2019 |
Trefwoorden | Age discrimination |
Auteurs | Claire Huijts |
SamenvattingAuteursinformatie |
The Supreme Court found that the Court of Appeal did not properly examine whether the difference of treatment of employees based on a social plan may be justified. |
Case Reports |
2019/40 Provisions on minimum salary based on work experience constitute age discrimination, even if they are not relevant (BE) |
Tijdschrift | European Employment Law Cases, Aflevering 4 2019 |
Trefwoorden | Age discrimination |
Auteurs | Gautier Busschaert |
SamenvattingAuteursinformatie |
Relying on the prohibition of age discrimination stemming from Directive 2000/78, the Labour Tribunal of Leuven refused to apply a Collective Labour Agreement establishing the minimum monthly salary for employees depending on their work experience even if not relevant and the Royal Decree enforcing it. The jurisdiction grounded its decision on the fact that this gave a strong advantage to older employees without objective justification. |
Case Reports |
2019/39 Industrial action injunction refused where trade unions were seeking parity of treatment (UK) |
Tijdschrift | European Employment Law Cases, Aflevering 4 2019 |
Trefwoorden | Industrial action |
Auteurs | Kerry Salisbury |
SamenvattingAuteursinformatie |
The High Court (HC) dismissed an application by an employer for an interim injunction to prevent strike action organised by two trade unions, who were demanding parity of treatment for their members as compared to members of another union. It was more likely than not that the two unions would succeed in establishing, at the full trial of the matter, that the statutory protection under UK law for industrial action applied. |
Case Reports |
2019/26 List of discrimination criteria (PL) |
Tijdschrift | European Employment Law Cases, Aflevering 3 2019 |
Trefwoorden | Age discrimination |
Auteurs | Marcin Wujczyk |
SamenvattingAuteursinformatie |
The Polish Supreme Court has held that a criterion of discrimination may also be a relationship of a social or familial nature that exists in the workplace and whose existence or absence on the part of the employee results in different treatment by the employer. |
Case Reports |
2019/38 Liability of overseas co-workers for whistleblowing detriment (UK) |
Tijdschrift | European Employment Law Cases, Aflevering 3 2019 |
Trefwoorden | Miscellaneous |
Auteurs | Richard Lister |
SamenvattingAuteursinformatie |
This was a case alleging detrimental treatment for whistleblowing brought by an employee working outside the UK against two co-workers also working abroad in the same location. The Court of Appeal (CA) ruled that there was no jurisdiction for the Employment Tribunal (ET) to hear the claim in relation to personal liability of the co-workers because they were outside the scope of UK employment law. The CA’s judgment potentially has implications for other types of claim brought by UK employees posted abroad where similar personal liability provisions apply, such as discrimination and harassment. |
Case Reports |
2019/35 Repairing past mistakes in holiday pay: two cases, two different outcomes (NL) |
Tijdschrift | European Employment Law Cases, Aflevering 3 2019 |
Trefwoorden | Paid Leave |
Auteurs | Jan-Pieter Vos |
SamenvattingAuteursinformatie |
A number of collective labour agreements unjustifiably have excluded allowances from holiday pay. Recently, social partners have had difficulties in repairing these flaws. Two recent cases demonstrate this, both similar claims but with different outcomes. This leaves social partners with the problem of how to proceed. |
Case Reports |
2019/31 Failing to enhance pay for shared parental leave to the level of maternity pay is not sex discrimination (UK) |
Tijdschrift | European Employment Law Cases, Aflevering 3 2019 |
Trefwoorden | Sex Discrimination |
Auteurs | Richard Lister |
SamenvattingAuteursinformatie |
In two appeal cases considered jointly, the Court of Appeal (CA) has ruled that it is not direct or indirect sex discrimination, nor a breach of equal pay rights, to provide enhanced pay for maternity leave and statutory pay only for shared parental leave (SPL). |
Case Reports |
2019/30 The religious ethos and differences of treatment in employment on grounds of belief (EU) |
Tijdschrift | European Employment Law Cases, Aflevering 3 2019 |
Trefwoorden | Religious discrimination |
Auteurs | Andrzej Marian Świątkowski |
SamenvattingAuteursinformatie |
The author discusses the recent ECJ judgments in the cases Egenberger and IR on religious discrimination. |
Case Reports |
2019/34 Reduction of annual leave during parental leave is lawful (GE) |
Tijdschrift | European Employment Law Cases, Aflevering 3 2019 |
Trefwoorden | Maternity and parental leave |
Auteurs | Nina Stephan en David Meyer |
SamenvattingAuteursinformatie |
The Higher Labour Court of Berlin-Brandenburg (Landesarbeitsgericht (LAG)) has held that the pro rata reduction of annual leave depending on the period of parental leave is lawful. In general, statutory holiday entitlement also exists for the period of parental leave. However, the employer has the right to reduce leave pro rata for each full month of parental leave according to Section 17 paragraph 1 sentence 1 of the Federal Parental Allowances and Parental Leave Act (Bundeselterngeld- und Elternzeitgesetz (BEEG)). The proportional reduction is in line with European law. |
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. |