A worker cannot automatically lose the right to annual leave because s/he did not apply for it. The employer must have informed the employee about the opportunity to take leave adequately and in a timely way, and must be able to prove this has been done. |
Zoekresultaat: 28 artikelen
Jaar 2018 xRulings |
ECJ 6 November 2018, case C-619/16 (Kreuziger), Paid leaveSebastian W. Kreuziger – v – Land Berlin, German case |
Tijdschrift | European Employment Law Cases, Aflevering 4 2018 |
Trefwoorden | Paid leave |
Samenvatting |
Case Reports |
EELC 2018/42 No reduction of vacation pay for already accrued vacation entitlement in the case of a reduction of weekly working hours later on (GE) |
Tijdschrift | European Employment Law Cases, Aflevering 4 2018 |
Trefwoorden | Paid leave |
Auteurs | Nina Stephan en Paul Schreiner |
SamenvattingAuteursinformatie |
According to German law, every employee is entitled to paid annual leave. The amount of pay is generally calculated based on the current salary (known as the “principle of loss of pay”) but a reduction of working hours during the year does not lead to a reduction of entitlement to holiday pay for previously acquired holiday entitlements. If the entitlement was already acquired before the reduction of working time (which can happen because in Germany holiday entitlement is acquired at the beginning of the calendar year), pay during leave will be based on the salary agreed between the employer and employee when the holiday entitlement was acquired and thus, based on the ‘old’ salary. |
Case Reports |
EELC 2018/40 Equal treatment of leased employees by ‘false’ works agreements (AU) |
Tijdschrift | European Employment Law Cases, Aflevering 4 2018 |
Trefwoorden | Temporary agency work, Part-time work |
Auteurs | Sarah Lurf |
SamenvattingAuteursinformatie |
A ‘false’ works agreement, which reduces the standard weekly working hours for permanent staff, also applies to leased employees. However, the pay of leased employees remains governed by the applicable collective bargaining agreement, rather than by the ‘false’ works agreement. Therefore, leased (part-time) employees benefitted from the reduced working hours by the ‘false’ works agreement, but received full pay based on the collective bargaining agreement. |
Pending cases |
Case C-588/18, Working timeFederación de Trabajadores Independientes de Comercio (FETICO), Federación Estatal de Servicios, Movilidad y Consumo de la Unión General de Trabajadores (FESMC-UGT), Federación de Servicios de Comisiones Obreras (CC.OO.) – v – Grupo de Empresas DIA, S.A., Twins Alimentación, S.A., reference lodged by the Audiencia Nacional (Spain) on 20 September 2018 |
Tijdschrift | European Employment Law Cases, Aflevering 4 2018 |
Case Reports |
EELC 2018/35 Employees who lose their jobs upon retirement are not entitled to statutory severance compensation (NL) |
Tijdschrift | European Employment Law Cases, Aflevering 4 2018 |
Trefwoorden | Age discrimination |
Auteurs | Peter C. Vas Nunes |
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. |
Landmark Rulings |
ECJ 6 November 2018, case C-684/16 (Max-Planck-Gesellschaft), Paid leaveMax-Planck-Gesellschaft zur Förderung der Wissenschaften e.V. – v – Tetsuji Shimizu, German case |
Tijdschrift | European Employment Law Cases, Aflevering 4 2018 |
Trefwoorden | Paid leave |
Samenvatting |
A worker does not automatically lose the right to annual leave because s/he did not apply for it. The employer must have informed the employee about the opportunity to take the leave adequately and in a timely way, and must be able to prove it. Based on the EU Charter of Fundamental Rights, this applies between individuals as well. |
Case Reports |
EELC 2018/39 Supreme Court decision on part-time work and fixed-term employment (DK) |
Tijdschrift | European Employment Law Cases, Aflevering 4 2018 |
Trefwoorden | Part-time work, Fixed-term work |
Auteurs | Christian K. Clasen |
SamenvattingAuteursinformatie |
The Danish Supreme Court has held there was no discrimination against four part-time teachers at a university in that they did not receive pension contributions. Their positions could not be compared to those of full-time teachers, who were entitled to pension contributions. However, it did constitute a violation of the Danish rules on fixed-term work that the teachers had, for a number of years, been employed on several fixed-term contracts, as they had, in effect, been continuously employed in the same position. Consequently, the teachers were awarded compensation. |
Rulings |
ECJ 21 November 2018, case C-245/17 (Viejobueno Ibáñez and De la Vara González), Fixed-term work, Paid leavePedro Viejobueno Ibáñez, Emilia de la Vara González – v – Consejería de Educación de Castilla-La Mancha, Spanish case |
Tijdschrift | European Employment Law Cases, Aflevering 4 2018 |
Trefwoorden | Fixed-term work, Paid leave |
Samenvatting |
The sole fact that fixed-term employment relationships terminate, whereas permanent relationships do not, does not constitute discrimination. Nevertheless, fixed-term teachers should receive an allowance in lieu of untaken leave. |
Landmark Rulings |
ECJ 6 November 2018, joined cases C-569/16 (Bauer) and C-570/16 (Willmeroth), Paid leaveStadt Wuppertal – v – Maria Elisabeth Bauer and Volker Willmeroth – v – Martina Broßonn, German case |
Tijdschrift | European Employment Law Cases, Aflevering 4 2018 |
Trefwoorden | Paid leave |
Samenvatting |
Heirs of a deceased worker are entitled to an allowance in lieu of untaken paid annual leave. Based on the EU Charter of Fundamental Rights, this applies between individuals as well. |
Case Reports |
EELC 2018/38 Collective Redundancies: Failure to notify Employment Service cannot be healed by postponing termination (AU) |
Tijdschrift | European Employment Law Cases, Aflevering 4 2018 |
Trefwoorden | Collective redundancies |
Auteurs | Andreas Tinhofer |
SamenvattingAuteursinformatie |
The Austrian Supreme Court has held that the employer must notify the Employment Service (AMS) when it is contemplating collective redundancies, even if they are carried by mutual agreement. The duty of notification is triggered if the employer proposes a mutual termination agreement to a relevant number of employees, provided the offer is binding and can be accepted by the employees within 30 days. If the employer fails to notify the AMS, any subsequent redundancies (or mutual terminations of employment occurring on the employer’s initiative) are void, even if effected after 30 days. |
Rulings |
ECJ 4 October 2018, case C-12/17 (Dicu), Maternity and parental leave, Paid leaveTribunalul Botoşani, Ministerul Justiţiei – v – Maria Dicu, Romanian case |
Tijdschrift | European Employment Law Cases, Aflevering 4 2018 |
Trefwoorden | Maternity and parental leave, Paid leave |
Samenvatting |
A period of parental leave does not count within the reference period for the purpose of determining an employee’s right to annual leave under Directive 2003/88/EC. |
Case Reports |
EELC 2018/43 Non-guaranteed and voluntary overtime should be taken into account when calculating holiday pay (UK) |
Tijdschrift | European Employment Law Cases, Aflevering 4 2018 |
Trefwoorden | Paid leave |
Auteurs | Soren Kristophersen |
SamenvattingAuteursinformatie |
The Employment Appeal Tribunal has ruled both non-guaranteed and voluntary overtime should be included in the calculation of holiday pay. |
Case Reports |
2018/34 Stand-by time must be interpreted in the light of ECJ case law (RO) |
Tijdschrift | European Employment Law Cases, Aflevering 3 2018 |
Trefwoorden | Working time |
Auteurs | Andreea Suciu |
SamenvattingAuteursinformatie |
The Supreme Court has ruled that it is at the discretion of the competent national court to assess whether periods of stand-by time are working time. In doing so, the court should apply Romanian law as interpreted in the light of ECJ case law. |
Case Reports |
2018/32 When is travelling time working time? (NO) |
Tijdschrift | European Employment Law Cases, Aflevering 3 2018 |
Trefwoorden | Working time |
Auteurs | Marianne Jenum Hotvedt en Anne-Beth Engan |
SamenvattingAuteursinformatie |
The Norwegian Supreme Court concludes that time spent on a journey ordered by the employer, to and from a place other than the employee’s fixed or habitual place of work, should be considered working time within the meaning of the statutory provisions implementing the Working Time Directive (2003/88/EC). This ruling takes into account the Advisory Opinion of the EFTA Court. |
Case Reports |
2018/31 Working as a ‘relief parent’ for a child protection association falls within the scope of the Working Time Directive and the Finnish Working Hours Act (FI) |
Tijdschrift | European Employment Law Cases, Aflevering 3 2018 |
Trefwoorden | Working time |
Auteurs | Janne Nurminen |
SamenvattingAuteursinformatie |
In its follow-up judgment to the ECJ’s preliminary ruling in the Hälvä case (C-175/16), the Finnish Supreme Court has held that ‘relief parents’ relieving foster parents in a child protection association on the latter’s holidays fall within the scope of the Finnish Working Hours Act even though the work was performed in the homes provided by the association for the children to live in. Therefore, the relief parents were entitled to the rights guaranteed by the Act (subject to the fact that some of their claims had expired). |
Case Reports |
2018/25 Two new cases consider whether fathers’ parental leave should be paid the same as mothers’ maternity leave (UK) |
Tijdschrift | European Employment Law Cases, Aflevering 3 2018 |
Trefwoorden | Gender discrimination |
Auteurs | Ludivine Gegaden |
SamenvattingAuteursinformatie |
Two differently constituted Employment Appeal Tribunals (‘EATs’) have recently considered whether it is sex discrimination to pay men on parental leave less than women on maternity leave. In Capita, the EAT decided that it was not direct sex discrimination to fail to pay full salary to a father taking shared parental leave, in circumstances where a mother taking maternity leave during the same period would have received full pay. However in Hextall, the EAT has indicated that enhancing maternity pay but not pay for shared parental leave may give rise to an indirect sex discrimination claim by fathers. |
Case Reports |
2018/28 The right to equal pay for temporary agency workers includes travel time allowances (NO) |
Tijdschrift | European Employment Law Cases, Aflevering 3 2018 |
Trefwoorden | Temporary agency work, Other forms of discrimination |
Auteurs | Kajsa Louise Tafjord Normannseth en Stein Evju |
SamenvattingAuteursinformatie |
Directive 2008/104/EC (Temporary Agency Work Directive) is implemented by means of the Norwegian Working Environment Act and provides for equal pay between regular workers and temporary agency workers. The Supreme Court has held that, in domestic law, the concept of ‘pay’ includes allowances for travel time and therefore a temporary agency worker was entitled to the same allowance as his permanent colleagues. |
Artikel |
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Tijdschrift | Crimmigratie & Recht, Aflevering 2 2018 |
Trefwoorden | article 1F, Refugee Convention, exclusion clauses, migrant smuggling, serious non-political crimes |
Auteurs | Anne Aagten LLL.M. |
SamenvattingAuteursinformatie |
In 2015, deadly incidents of migrant smuggling in the Mediterranean were daily covered by everyday newspapers. Empirical research has shown that migrants themselves may be involved in these smuggling operations. If they apply for refugee protection, they may be excluded from refugee status under Article 1F of the Refugee Convention. Article 1F(b) excludes asylum seekers from international protection if serious reasons exist to consider that they have committed serious non-political crimes. This contribution discusses whether migrant smuggling can be considered as such and whether various forms of participation in smuggling operations give rise to individual responsibility and trigger application of article 1F(b). |
Artikel |
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Tijdschrift | Law and Method, september 2018 |
Auteurs | Simone Schroff |
SamenvattingAuteursinformatie |
Different legal rules can lead to the same observable outcome, making it difficult to identify the most influential rule. This article addresses this gap by focusing on how competing explanatory theories derived from a doctrinal analysis can be assessed using a methodology called process-tracing. One of process-tracing’s main uses is to link explanatory theories to empirical evidence, permitting an assessment of causal mechanisms’ practical impact in comparison to each other. This article demonstrates the potential and practical implementation of process-tracing in the context of empirical legal research. In addition to the core characteristics of process-tracing, the paper clarifies when process-tracing can add to a doctrinal analysis and the requirements which have to be met. Furthermore, the process of linking doctrinal work with empirical evidence relying on process-tracing is shown, using the example of copyright ownership in the broadcasting sector. As a result, this paper demonstrates the added value of a process-tracing analysis carried out in addition to doctrinal work, in particular the insights into industry practice it generates. |
Opinion |
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Tijdschrift | Netherlands Journal of Legal Philosophy, Aflevering 1 2018 |
Auteurs | Lukas van den Berge |
Auteursinformatie |