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. |
European Employment Law Cases
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Editorial |
A Christmas Carol |
Authors | Zef Even |
Case Reports |
EELC 2018/35 Employees who lose their jobs upon retirement are not entitled to statutory severance compensation (NL) |
Keywords | Age discrimination |
Authors | Peter C. Vas Nunes |
AbstractAuthor's information |
Case Reports |
EELC 2018/36 An expectation that a disabled employee should work long hours was potentially discriminatory (UK) |
Keywords | Disability discrimination |
Authors | Tom McEvoy |
AbstractAuthor's information |
The Court of Appeal has confirmed that an expectation that a disabled employee would work long hours was a ‘provision, criterion or practice’ in a disability discrimination claim regarding reasonable adjustments. It also held that, on the facts, the employer’s conduct had caused the employee to resign and this entitled him to claim constructive unfair dismissal. |
Case Reports |
EELC 2018/37 Supreme Court rules on discrimination for being overweight (FI) |
Keywords | Disability discrimination |
Authors | Janne Nurminen |
AbstractAuthor's information |
The Finnish Supreme Court has held that an employer discriminated against an employee by not renewing his employment at the end of a fixed-term contract because he was overweight. |
Case Reports |
EELC 2018/38 Collective Redundancies: Failure to notify Employment Service cannot be healed by postponing termination (AU) |
Keywords | Collective redundancies |
Authors | Andreas Tinhofer |
AbstractAuthor's information |
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. |
Case Reports |
EELC 2018/39 Supreme Court decision on part-time work and fixed-term employment (DK) |
Keywords | Part-time work, Fixed-term work |
Authors | Christian K. Clasen |
AbstractAuthor's information |
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. |
Case Reports |
EELC 2018/40 Equal treatment of leased employees by ‘false’ works agreements (AU) |
Keywords | Temporary agency work, Part-time work |
Authors | Sarah Lurf |
AbstractAuthor's information |
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. |
Case Reports |
EELC 2018/41 Spanish Supreme Court now aligned with ECJ’s case law: Limitation to pre-transfer liabilities for new contractor under CBA-led transfers that triggers a non-asset based transfer are not valid (SP) |
Keywords | Transfer of undertaking, Miscellaneous |
Authors | Luis Aguilar |
AbstractAuthor's information |
Following the ECJ’s decision in Somoza Hermo – v – Ilunion Seguridad, C-60/17 (Somoza Hermo) of 11 July 2018, all eyes were on the Spanish Supreme Court. Since 2016, the Court has ruled a number of times that limitations to the liability of the new contractor established in a collective bargaining agreement (‘CBA’) in the context of a CBA-led transfer were valid (see e.g. EELC 2018/21). Somoza Hermo established that a CBA-led transfer that entails a non-asset-based transfer is a transfer within the meaning of the Acquired Rights Directive. Now the Supreme Court (in a decision dated 27 September 2018 taken with one dissenting opinion) is clear that its doctrine must be reviewed and has therefore held that limitations on pre-transfer liability for a new contractor under a CBA-led transfer that trigger a non-asset-based transfer, are not valid. |
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) |
Keywords | Paid leave |
Authors | Nina Stephan and Paul Schreiner |
AbstractAuthor's information |
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 2018/43 Non-guaranteed and voluntary overtime should be taken into account when calculating holiday pay (UK) |
Keywords | Paid leave |
Authors | Soren Kristophersen |
AbstractAuthor's information |
The Employment Appeal Tribunal has ruled both non-guaranteed and voluntary overtime should be included in the calculation of holiday pay. |
Case Reports |
EELC 2018/44 Travelling time from home to customers is working time in the absence of a fixed work place (BE) |
Keywords | Working time |
Authors | Dr. Pieter Pecinovsky |
AbstractAuthor's information |
For workers without a fixed workplace, travelling time between their place of residence and the first customer and travelling time between the last customer and the place of residence constitutes working time. |
Case Reports |
EELC 2018/45 The limits to checking emails out of business hours (IR) |
Keywords | Working time |
Authors | Lucy O’Neill |
AbstractAuthor's information |
In a recent decision, the Labour Court awarded an employee € 7,500 for working in excess of 48 hours a week, contrary to working time legislation. The complainant allegedly regularly checked and responded to emails outside of business hours, occasionally after midnight. The Labour Court reiterated it is the employer’s responsibility to ensure that employees are not permitted to work beyond the statutory maximum period and that if an employer is aware that an employee is working excessive hours, must take steps to curtail this. |
Case Reports |
EELC 2018/46 Limits to a contractual penalty for non-compliance with a non-compete clause (CZ) |
Keywords | Miscellaneous |
Authors | Anna Diblíková |
AbstractAuthor's information |
The Czech Supreme Court has ruled that the concept of good moral conduct must be taken into account when assessing whether an employee has breached his or her non-compete obligation and thus whether it is fair to demand that the employee pay a contractual penalty for the breach. The Court annulled the penalty. |
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 |
Keywords | Paid leave |
Abstract |
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. |
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 |
Keywords | Paid leave |
Abstract |
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. |
Rulings |
ECJ 7 August 2018, case C-61/17 (Bichat), Collective redundanciesMiriam Bichat – v – Aviation Passage Service Berlin GmbH & Co. KG, German case |
Keywords | Collective redundancies |
Abstract |
The obligations regarding collective redundancies also apply to all undertakings linked to an employer by shareholdings or by other links in law which allow for decisive influence in decision-making bodies and compel it to contemplate or to plan for collective redundancies. |
Rulings |
ECJ 6 September 2018, case C-527/16 (Alpenrind), Free movement, Social InsuranceSalzburger Gebietskrankenkasse, Bundesminister für Arbeit, Soziales und Konsumentenschutz (interested parties: Alpenrind GmbH and others), Austrian case |
Keywords | Free movement, Social insurance |
Abstract |
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Rulings |
ECJ 6 September 2018, case C-17/17 (Grenville Hampshire), InsolvencyGrenville Hampshire – v – The Board of the Pension Protection Fund, British case |
Keywords | Insolvency |
Abstract |
Each ex-employee of an insolvent employer is individually entitled to at least 50% of the pension that s/he would have enjoyed, had no insolvency taken place. |
Rulings |
ECJ 11 September 2018, case C-68/17 (IR – v – JQ), Religious discriminationIR – v – JQ, German case |
Keywords | Religious discrimination |
Abstract |
If a religious organisation relies on an exception to the principle of equal treatment to draft rules that differ according to the religion of the employees, this must be subject to judicial review and will be acceptable only if the religion or belief constitutes a genuine and legitimate occupational requirement, justified by the ethos of the organisation concerned and the application of the exception is proportionate. If there are contrary provisions in national law, these must be disapplied. |
Rulings |
ECJ 4 October 2018, case C-12/17 (Dicu), Maternity and parental leave, Paid leaveTribunalul Botoşani, Ministerul Justiţiei – v – Maria Dicu, Romanian case |
Keywords | Maternity and parental leave, Paid leave |
Abstract |
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. |
Rulings |
ECJ 25 October 2018, case C-451/17 (Walltopia), Social insurance‘Walltopia’ AD – v – Direktor na Teritorialna direktsia na Natsionalnata agentsia za prihodite – Veliko Tarnovo, Bulgarian case |
Keywords | Social insurance |
Abstract |
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Rulings |
ECJ 25 October 2018, case C-331/17 (Sciotto), Fixed-term workMartina Sciotto – v – Fondazione Teatro dell’Opera di Roma, Italian case |
Keywords | Fixed-term work |
Abstract |
The Framework Agreement to protect the misuse of successive fixed-term employment contracts or relationships precludes legislation, which disapplies rules aimed against such misuse, when there is no other effective penalty. |
Rulings |
ECJ 6 November 2018, case C-619/16 (Kreuziger), Paid leaveSebastian W. Kreuziger – v – Land Berlin, German case |
Keywords | Paid leave |
Abstract |
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. |
Rulings |
ECJ 7 november 2018, case C-432/17 (O’Brien), Part-time workDermod Patrick O’Brien – v – Ministry of Justice, UK case |
Keywords | Part-time work |
Abstract |
Periods of service prior to the deadline for transposing Directive 97/81/EC (amended by Directive 98/23/EC) must be taken into account for the purpose of calculating the retirement pension entitlement. |
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 |
Keywords | Fixed-term work, Paid leave |
Abstract |
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. |
Rulings |
ECJ 13 November 2018, case C-432/17 (Cepelnik), Other forms of free movementCepelnik d.o.o. – v – Michael Vavti, Austrian case |
Keywords | Other forms of free movement |
Abstract |
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Pending Cases |
Case C-33/18, Social insuranceV – v – Institut national d’assurances sociales pour travailleurs indépendants, Securex Integrity ASBL, reference lodged by the Cour du travail de Liège (Belgium) on 18 January 2018 |
Pending cases |
Case C-37/18, MiscellaneousVueling Airlines SA – v – Jean-Luc Poignan, reference lodged by the the Cour de cassation (France) on 19 January 2018 |
Pending cases |
Case C-44/18, Fixed-term workCobra Servicios Auxiliares, S.A. – v – FOGASA, Jesus Valiño Lopez en Incatema, S.L., reference lodged by the Tribunal Superior de Justicia de Galicia (Spain) on 24 January 2018 |
Pending cases |
Case C-103/18, Fixed-term workDomingo Sánchez Ruiz – v – Comunidad de Madrid (Servicio Madrileño de Salud), reference lodged by the Juzgado de lo Contencioso-Administrativo No 8 de Madrid (Spain) on 13 February 2018 |
Pending cases |
Case C-72/18, Fixed-term workDaniel Ustariz Aróstegui – v – Consejería de Educación del Gobierno de Navarra, reference lodged by the Juzgado de lo Contencioso-Administrativo No 1 de Pamplona (Spain) on 5 February 2018 |
Pending cases |
Case C-55/18, Working timeFederación de Servicios de Comisiones Obreras (CCOO) – v – Deutsche Bank SAE, reference lodged by the Audiencia Nacional (Spain) on 29 January 2018 |
Pending cases |
Case C-134/18, Social insuranceMaria Vester – v – Rijksdienst voor Ziekte- en Invaliditeitsverzekering (Riziv), reference lodged by the Arbeidsrechtbank Antwerpen (Belgium) on 19 February 2018 |
Pending cases |
Case C-161/18, Equal treatment, PensionVioleta Villar Láiz – v – Instituto Nacional de la Seguridad Social (INSS), Tesorería General de la Seguridad Social (TGSS), reference lodged by the Tribunal Superior de Justicia de Castilla y León (Spain) on 27 February 2018 |
Pending cases |
Case C-167/18 Transfer, Collective agreementUnión Insular de CC.OO. de Lanzarote – v – Swissport Spain Aviation Services Lanzarote, S.L., reference lodged by the Tribunal Superior de Justicia de Canarias (Spain) on 2 March 2018 |
Pending cases |
Case C-168/18, Insolvency, PensionPensions-Sicherungs-Verein VVaG – v – Günther Bauer, reference lodged by the Bundesarbeitsgericht (Germany) on 5 March 2018 |
Pending cases |
Case C-177/18, Other forms of discriminationAlmudena Baldonedo Martín – v – Ayuntamiento de Madrid, reference lodged by the Juzgado de lo Contencioso-Administrativo de Madrid (Spain) on 7 March 2018 |
Pending cases |
Case C-171/18, Equal treatment, PensionSafeway Ltd – v – Andrew Richard Newton, Safeway Pension Trustees Ltd, reference lodged by the Court of Appeal (United Kingdom) made on 5 March 2018 |
Pending cases |
Case C-194/18, TransferJadran Dodič – v – Banka Koper, Alta Invest, reference lodged by the Vrhovno sodišče Republike Slovenije (Slovenia) on 19 March 2018 |
Pending cases |
Case C-274/18, Gender discrimination, Fixed-term workMinoo Schuch-Ghannadan – v – Medizinische Universität Wien, reference lodged by the Arbeits- und Sozialgericht Wien (Austria) on 23 April 2018 |
Pending cases |
Case C-258/18, Social insuranceH. Solak – v – Raad van bestuur van het Uitvoeringsinstituut werknemersverzekeringen, reference lodged by the Centrale Raad van Beroep (Netherlands) on 13 April 2018 |
Pending cases |
Case C-254/18, Working timeSyndicat des cadres de la sécurité intérieure – v – Premier ministre, Ministre d’État, Ministre de l’Intérieur, Ministre de l’Action et des Comptes public, reference lodged by the Conseil d’État (France) on 12 April 2018 |
Pending cases |
Case C-257/18, Social insuranceM. Güler – v – Raad van bestuur van het Uitvoeringsinstituut werknemersverzekeringen, reference lodged by the Centrale Raad van Beroep (Netherlands) on 13 April 2018 |
Pending cases |
Case C-372/18, Social insuranceMinistre de l’Action et des Comptes publics – v – Mr and Mrs Raymond Dreyer, reference lodged by the Cour administrative d’appel de Nancy (France) on 7 June 2018 |
Pending cases |
Case C-293/18, Fixed-term workSindicato Nacional de CCOO de Galicia – v – Unión General de Trabajadores de Galicia (UGT), Universidad de Santiago de Compostela, Confederación Intersindical Gallega, reference lodged by the Tribunal Superior de Justicia de Galicia (Spain) on 26 April 2018 |
Pending cases |
Case C-317/18, Transfer, MiscellaneousCátia Correia Moreira – v – Município de Portimão, reference lodged by the Tribunal Judicial da Comarca de Faro (Portugal) on 14 May 2018 |
Pending cases |
Case C-428/18, PensionJörg Paul Konrad Fritz Bode – v – Instituto Nacional de la Seguridad Social and Tesorería General de la Seguridad Social, reference lodged by the Tribunal Superior de Justicia de Galicia (Spain) on 28 June 2018 |
Pending cases |
Case C-404/18, Gender discriminationJamina Hakelbracht, Tine Vandenbon, Instituut voor de Gelijkheid van Vrouwen en Mannen – v – WTG Retail BVBA, reference lodged by the Arbeidsrechtbank Antwerpen (Belgium) on 19 June 2018 |
Pending cases |
Case C-429/18, Fixed-term workBerta Fernández Álvarez, BMM, TGV, Natalia Fernández Olmos, María Claudia Téllez Barragán – v – Consejería de Sanidad de la Comunidad de Madrid, reference lodged by the Juzgado de lo Contencioso-Administrativo de Madrid (Spain) on 28 June 2018 |
Pending cases |
Case C-472/18, Part-time workER – v – Agencia Estatal de la Administración Tributaria, reference lodged by the Tribunal Superior de Justicia de Galicia (Spain) on 19 July 2018 |
Pending cases |
Case C-581/18, Age discriminationYV, reference lodged by the Sąd Najwyższy (Poland) on 17 August 2018 |
Pending cases |
Case C-486/18, Parental leaveRE – v – Praxair MRC, reference lodged by the Cour de cassation (France) on 23 July 2018 |
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 |