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 |
2019/47 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. |
Case Reports |
2019/20 How to interpret the Posting of Workers Directive in the cross-border road transport sector? Dutch Supreme Court asks the ECJ for guidance (NL) |
Tijdschrift | European Employment Law Cases, Aflevering 2 2019 |
Trefwoorden | Private International Law, Posting of Workers and Expatriates, Applicable Law |
Auteurs | Zef Even en Amber Zwanenburg |
SamenvattingAuteursinformatie |
In this transnational road transport case, the Dutch Supreme Court had to elaborate on the ECJ Koelzsch and Schlecker cases and asks for guidance from the ECJ on the applicability and interpretation of the Posting of Workers Directive. |
Rulings |
ECJ 13 June 2019, case C-664/17 (Ellinika Nafpigeia), Transfer of Undertakings, TransferEllinika Nafpigeia AE – v – Panagiotis Anagnostopoulos and Others, Greek case |
Tijdschrift | European Employment Law Cases, Aflevering 2 2019 |
Trefwoorden | Transfer of Undertakings, Transfer |
Samenvatting |
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Case Reports |
2019/12 Dismissal on grounds of sickness – Discrimination on grounds of disability? (AT) |
Tijdschrift | European Employment Law Cases, Aflevering 2 2019 |
Trefwoorden | Disability discrimination |
Auteurs | Peter C. Schöffmann |
SamenvattingAuteursinformatie |
Austrian courts have to deal with an increasing number of cases concerning dismissal on grounds of (alleged) discrimination. The particular challenge is to a draw a conclusive distinction between the concepts of disability and sickness. |
Case Reports |
2019/24 Court of Appeal rejects Uber’s worker status appeal (UK) |
Tijdschrift | European Employment Law Cases, Aflevering 2 2019 |
Trefwoorden | Miscellaneous, Employment Status |
Auteurs | Jemma Thomas |
SamenvattingAuteursinformatie |
Following an appeal by Uber against the Employment Appeal Tribunal’s (EAT) finding last year, which was featured in EELC 2018/9, that drivers engaged by Uber are ‘workers’ rather than independent contractors (reported in EELC 2018-1), the Court of Appeal (CA) has now upheld the EAT’s decision. The CA also upheld the finding of the Employment Tribunal (ET), which was featured in EELC 2017/10, that drivers are working when they are signed into the Uber app and ready to work (reported in EECL 2017-1). Uber has approximately 40,000 drivers (and about 3.5 million users of its mobile phone application in London alone) and so this decision has potentially significant financial consequences for the company. |
Case Reports |
2019/6 Choice of Belgian law in an employment contract extends to all provisions that regulate the mutual rights and obligations of the parties to the contract (BE) |
Tijdschrift | European Employment Law Cases, Aflevering 1 2019 |
Trefwoorden | Private international law, Applicable law |
Auteurs | Dr. Gautier Busschaert |
SamenvattingAuteursinformatie |
According to the Belgian Supreme Court, a choice of Belgian law for an employment relationship extends to all provisions beyond the employment contract. If parties choose to apply Belgian law to their employment relationship, this choice may extend to all provisions of Belgian law which regulate the mutual rights and obligations of the parties. This includes legislation on well-being at work and, hence, the payment of a protection indemnity following dismissal after filing a claim for harassment. |
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. |
Case Reports |
2019/8 Supreme Court rules on transfer of undertaking (FI) |
Tijdschrift | European Employment Law Cases, Aflevering 1 2019 |
Trefwoorden | Transfer of undertakings |
Auteurs | Janne Nurminen |
SamenvattingAuteursinformatie |
The Finnish Supreme Court held that a transfer of undertaking had taken place in a situation where no contract of transfer was concluded. |
Case Reports |
2019/9 The right to object against a transfer in case of incorrect information is not unlimited (GE) |
Tijdschrift | European Employment Law Cases, Aflevering 1 2019 |
Trefwoorden | Transfer of undertaking, Employees who transfer/refuse to transfer |
Auteurs | Nina Stephan |
SamenvattingAuteursinformatie |
According to German law, every employee has the right to object to the transfer of their employment relationship to the transferee in the case of a transfer of business. However, the right to object is not unlimited. The Federal Labour Court (Bundesarbeitsgericht (‘BAG’)) held that an employee who had worked for the transferee for seven years had lost this right if they had been informed about the transfer. |
Case Reports |
2019/10 Employee’s right of choice between transferor and transferee in the event of a business transfer (NO) |
Tijdschrift | European Employment Law Cases, Aflevering 1 2019 |
Trefwoorden | Transfer of undertakings, Employees who transfer/refuse to transfer |
Auteurs | Bernard Johann Mulder |
SamenvattingAuteursinformatie |
As a result of a transfer of an undertaking an employee lost her pension scheme rights. The transferor was bound by the pension scheme covering the employee which had been agreed upon in a collective agreement. However, the transferee company gave notification that it did not want to be bound by the collective agreement and, thus, the pension scheme. The Norwegian Supreme Court (Høyesterett) considered this loss a material negative change to the employment relationship. Therefore, the employee had the right to make use of the non-statutory exception rule of the right to insist upon continuation of the employment with the transferor, a non-statutory right of choice. |
Case Reports |
2019/4 The Italian Jobs Act (Legislative Decree no. 23 of 2015) reforming the protection against unfair dismissal contrasts with the European Social Charter 1996 (IT) |
Tijdschrift | European Employment Law Cases, Aflevering 1 2019 |
Trefwoorden | Dismissal, Unfair dismissal |
Auteurs | Andrea Pilati |
SamenvattingAuteursinformatie |
On 8 November 2018 the Italian Constitutional Court prohibited the reform of the protection against unfair dismissal introduced by the so-called Jobs Act (Legislative Decree no. 23 of 4 March 2015), insofar as it imposed a requirement on the judge to quantify the compensation due for unfair dismissal based on an employee’s seniority only. According to the Court, such a requirement violated not just internal constitutional norms, but also Article 24 of the (Revised) European Social Charter of 1996. This contribution focuses particularly on the EU law questions deriving from such an important judgment. |
Law Review |
2019/1 EELC’s review of the year 2018 |
Tijdschrift | European Employment Law Cases, Aflevering 1 2019 |
Auteurs | Ruben Houweling, Catherine Barnard, Filip Dorssemont e.a. |
Samenvatting |
For the second time, various of our academic board analysed employment law cases from last year. However, first, we start with some general remarks. |