By a majority of 4-3, the Supreme Court of Ireland has held that the Workplace Relations Commission’s power to adjudicate disputes between employers and employees was not unconstitutional. However, the majority of the Supreme Court did find that certain aspects of the Commission’s procedures were unconstitutional, namely the blanket ban on public hearings and the lack of capacity for taking evidence on oath. The Workplace Relations Act 2015 and the Workplace Relations Commission procedures have consequently been amended to address these issues. This case report is a follow-up on EELC 2020/34.

Mandatory vaccination policies may not be contrary to art. 8 ECHR.

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.

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”).

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.

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.

Various of our academic board analysed employment law cases from last year. However, first, we start with some general remarks.

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.

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.

For the second time, various of our academic board analysed employment law cases from last year. However, first, we start with some general remarks.

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.

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.

This is the first time we have produced a review of employment law cases from the previous year, based on analysis by various of our academic board members. But before looking at their findings, we would first like to make some general remarks.

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.

The Spanish courts breached Article 8 of the Convention on Human Rights by accepting covert footage as valid evidence in court.