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Rulings

ECJ 24 March 2021, case C-950/19 (A), Miscellaneous, Other Fundamental Rights

A. Intervening party: Patentti- ja rekisterihallituksen tilintarkastuslautakunta, Finnish Case

Tijdschrift European Employment Law Cases, Aflevering 1 2021
Trefwoorden Miscellaneous, Other Fundamental Rights
Samenvatting

    The prohibition to ‘take up a position’ within the meaning of Article 22(a)(1)(a) of Directive 2006/43 includes concluding an employment contract, even if the employee has not yet begun to actually perform his or her duties in that post.

    An adjudication officer of the Irish Workplace Relations Commission has ruled that an upper age limit for entrance to An Garda Síochána (the national police force) was discriminatory on the grounds of age.


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

    In a surprise decision, with potentially wide-ranging ramifications, an Employment Tribunal (ET) has found that ‘workers’ as well as traditional ‘employees’ are covered by the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE).


Colin Leckey
Colin Leckey is a Partner at Lewis Silkin LLP.

    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.


Gautier Busschaert
Gautier Busschaert is an Attorney at Van Olmen & Wynant.

    The German Federal Labour Court has held that it was justifiable for the employment of an actor to be limited in time because of the “type of work” involved and the fact that the work was with a film production company, even though the actor was given a number of fixed term employment contracts over around 18 years.


Paul Schreiner
Paul Schreiner is an attorney-at-law at Luther Rechtsanwaltsgesellschaft mbH.

Jana Voigt
Jana Voigt is an attorney-at-law at Luther Rechtsanwaltsgesellschaft mbH.
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

    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

2017/10 Uber drivers found to be workers (UK)

Tijdschrift European Employment Law Cases, Aflevering 1 2017
Trefwoorden Employment Tribunal
Auteurs Bethan Carney
SamenvattingAuteursinformatie

    In a much publicised case, Uber drivers have won a first instance employment tribunal finding that they are ‘workers’ and not self-employed contractors. This decision means that they are entitled to basic protections, such as the national minimum wage, paid holiday (under the Working Time Directive) and protection against detriment for ‘blowing the whistle’ on wrong doing. The decision could have substantial financial consequences for Uber, which has around 40,000 drivers in the UK but Uber has already confirmed that it will appeal the decision, so we are unlikely to have a final determination on this question for some time.


Bethan Carney
Bethan Carney is a lawyer at Lewis Silkin LLP: www.lewissilkin.com.

    In one of the first high-profile cases under the Protected Disclosures Act 2014 (i.e. whistleblowing legislation), two employees have successfully secured an injunction in the Circuit Court which prevents their dismissal.


Lucy O’Neill
Lucy O’Neill is an associate at Mason Hayes & Curan, www.MHC.ie.
ECJ Court Watch

EFTA Court 16 December 2015, case E-5/15 (M’bye), working time

Matja Kumba T M’bye and Others – v – Stiftelsen Fossumkollektivet, Norwegian case*

Tijdschrift European Employment Law Cases, Aflevering 2 2016
Trefwoorden Working time
Samenvatting

    An 84-hour working week imposed on resident therapists at a care home may in certain circumstances be compatible with Directive 2003/88.

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