In businesses employing fewer than ten employees, the rules on unfair dismissal do not apply. However, those on discrimination do. This fact made it possible for the 63 year-old employee in this case to claim damages, effectively for unfair dismissal. She had been dismissed following a reduction in the available work. She was selected for redundancy because she was less qualified than her colleagues. However, her termination letter mentioned that she had become “eligible for retirement”. This remark created a presumption of age discrimination, which the employer was not able to rebut.

For the fourth time in seven years, an Austrian court has asked the ECJ for guidance on the subject of age discrimination in pay scales. In this latest case, the period required to progress from step 1 to step 2 on the pay scale was longer than the period needed to progress from step 2 to step 3 and beyond. Does that constitute age discrimination? The author argues that it does, and that the arguments advanced to justify it are not valid.

The Belgian Labour Court decided in this case that the attitude/behaviour of an employer towards an employee constitutes harassment and discrimination, as the behaviour was such that the employee could have had the impression that he could lose his job because of his state of health. The employee resumed work after long-term incapacity owing to heart disease, but only on a part-time basis.
The Court considered that the successive actions of the employer towards his employee were aimed at ending his employment rather than actively promoting reintegration. Such behaviour, on the facts, could be considered as harassment and discrimination.
Moreover, the Court specified that the health of the employee, who had partially resumed work after being off sick for heart disease, could be regarded as a disability in accordance with EU Directive 2000/78. The Court explicitly referred to the ECJ HK Danmark case.

Following a restructure of his employer, an over 50 year old employee was deprived of the opportunity to apply for voluntary redundancy, compared to his under 50 year old colleagues, because it would have triggered early retirement resulting in a higher redundancy package. The Employment Tribunal (‘ET’) held that the use of under 50 year old comparators was not appropriate because the comparators were not entitled to early retirement and were therefore in materially different circumstances compared to the claimant. On appeal to the Employment Appeal Tribunal (‘EAT’), the EAT held that the fact that the comparators were not entitled to early retirement was not a “relevant circumstance” making the comparators invalid. A prima facie case of direct age discrimination was therefore made out. The EAT remitted the case back to the original ET to determine if the employer’s direct discrimination could be justified.

An employee challenged whether her employer’s refusal to provide childcare vouchers during maternity leave was discriminatory. The Employment Appeal Tribunal (EAT) determined, somewhat tentatively, that where childcare vouchers are provided through a salary sacrifice scheme, it is not discriminatory for employers to cease to provide childcare vouchers during maternity leave.

The Court of Appeal (‘CoA’) has held that there was no indirect discrimination where the underlying reason behind a ‘provision, criterion or practice’ (‘PCP’) operated by an employer was not discriminatory. The claim of indirect discrimination was brought by Mr Naeem, who is employed by the Prison Service as a full-time imam at HMP Bullingdon. Until 2002, the Prison Service employed only Christian chaplains full-time due to a lack of demand for chaplains of other faiths (who were employed on a sessional basis only). From 2002, it started to hire full-time Muslim as well as Christian chaplains due to an increase in the number of Muslim prisoners.
The prison system’s pay scale rewards length of service and pay rises are linked to both performance and length of full-time service. Mr Naeem argued that this had a disproportionate negative effect on Muslims, as they could not have been employed for as long as Christians. The CoA rejected this claim, based on the fact that the underlying reason for the difference was the lack of demand for Muslim chaplains before 2002, and that this was not discriminatory.
This case follows the 2015 CoA case of Essop v Home Office [2015] EWCA Civ 609, which was the first case to add in this extra layer to the indirect discrimination test. According to these cases, a claimant must now show not only that a particular practice particularly disadvantaged them, but also why this is the case. In both cases, appeals have been made to the Supreme Court and these are expected to be heard together later this year.

A general prohibition against displaying religious, political and philosophical symbols constitutes indirect discrimination which fails to meet the proportionality requirement. In this case the court took account of the fact that it was possible for the employer to distinguish between back-office and front-office work (the claimant worked in a back office position) and also because of the absence of complaints by colleagues or clients and the absence of any attempt by the claimant to encourage other women to wear a headscarf.

It was neither direct nor indirect discrimination when a municipality dismissed a childminder with a disabled child, since the decision to dismiss was based on the interests of safeguarding children in the municipality’s childminding services, by not taking them out of their usual environment and placing them with a childminder they did not know.

Following the latest case law of the Supreme Court of Lithuania, it is not enough to state that an employee cannot work for a competitor during their employment. It is necessary to pay compensation in order for the non-compete obligation to be legally enforceable, because of the onerous nature of the obligation.

An employer that fails to comply with an occupational doctor’s recommendation regarding an employee’s health, as it relates to his job, is in breach of its health and safety obligations.

Article 60(1)(g) of the Romanian Labour Code does not allow an employer to dismiss trade union leaders for reasons other than disciplinary misconduct or judicial reorganisation, dissolution or bankruptcy of the employer. The Constitutional Court has recently ruled that Article 60(1)(g) is unconstitutional.

The Supreme Court in this case establishes conditions to be met in order for the member of a Board of Directors to qualify as a self-employed “entrepreneur”. In light of these conditions, Directors must be considered to have the status of “individual contractor”, obligating them to pay increased social security contributions.

The employee, a public servant, criticised her employer’s director in an email that she sent all of her co-workers. The email made its way into a newspaper. She was dismissed. She challenged her dismissal successfully: the Supreme Court, weighing the employee’s right to freedom of speech against the employer’s right to protect its reputation and business interests, held the dismissal to be unfounded.

A decision issued by the Constitutional Court on 3 March 2016 upholds a High Court decision on whether evidence obtained through video surveillance at the work place without previously informing the employee or the works council of the recording infringes employees’ privacy. The existence of cameras in the workplace was only made known via a sticker on the shop window, but the Constitutional Court found that it provided sufficient information to employees. The Court found that, as there was a prior suspicion of theft by the employee, temporary recording of the cashier area was lawful and did not require prior consent. The judgment sets out the criteria to be used to determine a fair balance between the competing interests of employee privacy and the employer’s right to compliance.

The basic rule in Norwegian law is that an employer planning to reduce headcount must apply the rules for selecting those to be dismissed (based on seniority, qualifications, personal circumstances, etc.) to the entire workforce within the relevant legal entity. However, there are circumstances under which the employer may limit the pool of employees within which to apply those rules. In this case, the employer was justified in limiting that pool to one employee, thereby avoiding the need to make a selection.

A transferee cannot claim the value of leave accrued but not taken by transferred employees before a transfer from the transferor.

Cypriot law on civil servants’ pensions violates EU law.

Austrian statutory pension benefits and Liechenstein occupational pension benefits are “equivalent”.

An unemployed EU citizen moving to another Member State is not entitled to social assistance in that State for the first three months.

A legal expenses insurance policy must cover the cost of a lawyer of choice, even in administrative proceedings (judgment largely identical to that in Massar, also summarised in this edition of EELC).

An EU citizen moving to another Member State, in order to qualify for unemployment benefits there, must meet the requirements for entitlement under the law of his new State of residence.

This case involves the right of a self-employed commercial agent, following termination of the contract with his principal, to an indemnity for having brought in new business. This right may not be interpreted restrictively.

A court applying national law that is at odds with the principle of non-discrimination on grounds of age must disapply that law, even if it is unequivocal and even where the dispute is between private parties.

A legal expenses insurance policy must cover the cost of a lawyer of choice, even in administrative proceedings (judgment almost identical to that in Büyüktipi, also summarised in this edition of EELC).

National tax law (which the claimant in this case considered to be age discriminatory) does not fall within the scope of Directive 2000/78.

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