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    On 12 October 2020, the Labour Court of Appeal of Ghent ruled that there was no indirect discrimination in the case of Mrs. Achbita, because a policy of neutrality does not disadvantage Muslim women who want to wear a headscarf more than any other worker. The Labour Court of Appeal was also of the opinion that the employer should not examine alternative job positions.


Gautier Busschaert
Gautier Busschaert is an attorney-at-law at Van Olmen & Wynant.
Pending Cases

Cases C-106/21, C-107/21 and C-135/21, Unions

Deutsche Lufthansa AG – v – BC, ZR, GD and WT, references lodged by the Landgericht Köln (Germany) on 22 February and 4 March 2021

Tijdschrift European Employment Law Cases, Aflevering 2 2021
Trefwoorden Unions
Case Law

Access_open 2021/1 EELC’s review of the year 2020

Tijdschrift European Employment Law Cases, Aflevering 1 2021
Auteurs Ruben Houweling, Daiva Petrylaitė, Marianne Hrdlicka e.a.
Samenvatting

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


Ruben Houweling

Daiva Petrylaitė

Marianne Hrdlicka

Attila Kun

Luca Calcaterra

Francesca Maffei

Jean-Philippe Lhernould

Niklas Bruun

Jan-Pieter Vos

Luca Ratti

Andrej Poruban

Anthony Kerr

Filip Dorssemont
Case Reports

2021/2 Warning strike timing (HU)

Tijdschrift European Employment Law Cases, Aflevering 1 2021
Trefwoorden Collective Agreements, Unions, Other Fundamental Rights
Auteurs Zsófia Oláh en Ildikó Rácz
SamenvattingAuteursinformatie

    This case involved an employer who claimed that a trade union organised an unlawful warning strike. The Curia (the highest judicial authority in Hungary) found that the trade union violated its obligation to cooperate with the employer according to Act No. 7 of 1989 on Strikes. The Curia and also the Regional Courts made some clear points on the question of the timing of a warning strike. The employer must be notified of a planned strike in sufficient time, which requirement also applies in the case of warning strikes. The time can be considered as sufficient if the employer is able to fulfil its rights to protect its property, prevent damage resulting from the strike, to carry out its duties to protect life and property, and to organise work accordingly. Failing this obligation, the warning strike is unlawful. The notice shall state the date and time that such action will commence.


Zsófia Oláh
Zsófia Oláh is a Partner at OPL Law Firm.

Ildikó Rácz
Ildikó Rácz is a Junior Associate at OPL Law Firm.

Zef Even

Noten


Thomas Dullinger
Univ.-Ass. Mag. Thomas Dullinger is associated with Institut für Arbeits- und Sozialrecht, Universität Wien.
Case Law

2020/1 EELC’s review of the year 2019

Tijdschrift European Employment Law Cases, Aflevering 1 2020
Auteurs Ruben Houweling, Daiva Petrylaitė, Peter Schöffmann e.a.
Samenvatting

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


Ruben Houweling

Daiva Petrylaitė

Peter Schöffmann

Attila Kun

Francesca Maffei

Jean-Philippe Lhernould

Niklas Bruun

Jan-Pieter Vos

Luca Ratti

Anthony Kerr

Petr Hůrka

Michal Vrajík

    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.


Kerry Salisbury
Kerry Salisbury is an Associate at Lewis Silkin LLP.
Rulings

ECJ 20 September 2018, case C-466/17 (Motter), Fixed-term work, other forms of discrimination

Chiara Motter – v – Provincia autonoma di Trento, Italian case

Tijdschrift European Employment Law Cases, Aflevering 3 2018
Trefwoorden Fixed-term work, Other forms of discrimination
Samenvatting

    A system, as exists in Italy, that only-partially counts service under fixed-term contracts for the purpose of classifying staff in grades, is compatible with the Framework Agreement on fixed-term work, as there was an objective justification.

Case Reports

2018/22 What is a collective agreement? Part two (DK)

Tijdschrift European Employment Law Cases, Aflevering 3 2018
Trefwoorden Collective agreements
Auteurs Christian K. Clasen
SamenvattingAuteursinformatie

    The Danish Supreme Court has upheld the decision from the Danish Eastern High Court (reported in EELC 2017/26) on the implementation of the Working Time Directive to the effect that an ‘intervention act’ can be deemed to be a collective agreement within the meaning of Article 18 of the Working Time Directive.


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

    In the aftermath of the ECJ’s ruling in the Asklepios case (C-680/15), the German Federal Employment Court (Bundesarbeitsgericht, hereinafter: BAG) held a dynamic referral clause valid following a transfer.


Othmar K. Traber
Othmar K. Traber is a partner at Ahlers & Vogel Rechtsanwälte PartG mbB in Bremen, www.ahlers-vogel.com.

    The Court of Appeal has overruled the recent Employment Appeal Tribunal (EAT) decision in Efobi – v – Royal Mail [2017] IRLR 956 (reported in EELC 2017/41), restoring the previous position that a claimant in a discrimination case has the initial burden of proof – which ‘shifts’ to the respondent to provide an explanation of why its conduct was non-discriminatory if a prima facie case is proven.
    The Court of Appeal disagreed with Mrs Justice Elisabeth Laing’s ruling in Efobi, that section136 of the Equality Act 2010 had made a substantial change to the law when it was introduced, on the basis that it could not be fair that a respondent should have to discharge the burden of proof without the claimant first showing that there is a case to be answered. Lord Singh ruled that it could not have been Parliament’s intention to remove this initial burden of proof when it enacted the Equality Act.


Kayleigh Williams
Kayleigh Williams is a paralegal at Lewis Silkin LLP.
Law Review

Access_open 2018/1 EELC’s review of the year 2017

Tijdschrift European Employment Law Cases, Aflevering 1 2018
Auteurs Ruben Houweling, Catherine Barnard, Zef Even e.a.
Samenvatting

    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.


Ruben Houweling

Catherine Barnard

Zef Even

Amber Zwanenburg

Daiva Petrylaitė

Petr Hůrka

Jean-Philippe Lhernould

Erika Kovács

Jan-Pieter Vos

Andrej Poruban

Luca Ratti

Niklas Bruun

Francesca Maffei
ECtHR Court Watch

ECtHR 5 September 2017 (Barbulescu), Application no. 61496/08, Privacy

Barbulescu – v – Romania, Romanian case

Tijdschrift European Employment Law Cases, Aflevering 4 2017
Trefwoorden Fundamental rights, Privacy
Samenvatting

    In Barbulescu, the Court examined for the first time a case concerning the monitoring of an employee’s electronic communications by a private employer. The Grand Chamber decided differently from the Chamber, when it concluded that the Romanian courts, in reviewing the decision of a private employer to dismiss an employee after having monitored his electronic communications, failed to strike a fair balance between the interests at stake: namely the employee’s right to respect for his private life and correspondence, on the one hand, and his employer’s right to take measures to ensure the smooth running of the company, on the other.

    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.
Case Reports

2017/26 What is a collective agreement? (DK)

Tijdschrift European Employment Law Cases, Aflevering 3 2017
Trefwoorden Collective labour law, Collective agreements
Auteurs Christian K. Clasen
SamenvattingAuteursinformatie

    On 2 June 2017, the Danish Eastern High Court decided that a statutory intervention by government was sufficient to enable derogation from the Working Time Directive (2003/88). The Directive can be derogated from by a collective agreement and although the statutory intervention was not a collective agreement, the High Court found that it was not inconsistent with that requirement.


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

    This case report concerns the lawfulness of a notified boycott against Holship Norge AS (‘Holship’) by the Norwegian Transport Workers’ Union (‘NTF’). In its decision, the Supreme Court considered whether the collective agreement exemption from competition law could be applied, and whether the boycott was unlawful pursuant to the right to freedom of establishment established by Article 31 of the EEA Agreement, cf. Article 101 of the Constitution and Article 11 of the European Convention on Human Rights.
    The boycott would prevent Holship’s staff from loading and unloading ships docked at the Port of Drammen. NTF’s purpose was to force Holship to enter into a collective agreement containing a priority of engagement clause, reserving loading and unloading work for dockworkers associated with the Administration Office for Dock Work in Drammen. The majority of the plenary Supreme Court found (10-7) that such boycott would be unlawful pursuant to section 2 of the Boycott Act. The dissent concerns the EEA rules.


Kurt Weltzien
Kurt Weltzien is a lawyer in NHO, which is the main representative organisation for Norwegian employers. He has a PhD on the thesis “Boycott in labour conflicts”. Kurt Weltzien also represented NHO in the Supreme Court in the case discussed in this case report.

Anne-Beth Engan
Anne-Beth Engan is an associate with Advokatfirmaet Selmer DA in Oslo.
Case Reports

2017/12 Court of Appeal rejects argument that Christmas strikes are unlawful under EU law (UK)

Tijdschrift European Employment Law Cases, Aflevering 2 2017
Trefwoorden Collective labour law, industrial actions, unions
Auteurs Vince Toman en David Hopper
SamenvattingAuteursinformatie

    The Court of Appeal has confirmed that industrial action called with the object or purpose of infringing the cross-border freedom to establish and receive services would be unlawful. It rejected the argument that industrial action would be unlawful if it made it unattractive for foreign companies to operate in the UK or if cross-border services might potentially be disrupted. These wider tests would be inconsistent with European case law on the Treaty on the Functioning of the European Union (‘TFEU’) and would be incompatible with proper protection of the right to strike.


Vince Toman

David Hopper
Vince Toman and David Hopper are respectively Head of the Trade Union and Collective Employment Law Group and Senior Associate at Lewis Silkin LLP.

    A pregnant employee with no valid work permit in France does not benefit from protective legal provisions forbidding or restraining her termination.


Claire Toumieux

Susan Ekrami
Claire Toumieux and Susan Ekrami are a partner and associate with Allen & Overy LLP in Paris, www.allenovery.com.
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