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

Relying on the prohibition of age discrimination stemming from Directive 2000/78, the Brussels Labour Tribunal, in a judgment of 28 November 2019, ruled that an age limit of 25 for the recruitment of air traffic controllers constituted direct discrimination. Its decision was grounded on the fact that even if there are objective reasons related to air traffic safety which may justify setting an age limit for applicants, the employer must adduce concrete evidence based on scientific facts.

Failure to reinstate an employee upon her return from parental leave in her initial position or a similar position with equivalent remuneration can constitute indirect gender discrimination.

Many national decisions in Germany in the past had to deal with employers’ requirements regarding religious symbols in the workplace. Also, in 2017, the ECJ has dealt with two matters of such. Whilst the ECJ strictly refers to the principles of entrepreneurial freedom, the Federal Labour Court (Bundesarbeitsgericht, the ‘BAG’) tends to give priority to religious freedom. Last year, the BAG appealed to the ECJ for final clarification, in particular regarding the relationship between the basic rights of entrepreneurs and the constitutional right to religious freedom, by way of a preliminary ruling procedure with its decision dated 30 January 2019.

On 3 October 2019, in case C-274/18 (Schuch-Ghannadan), the ECJ held that a national regulation, which provides for different maximum total durations of successive fixed-term employment contracts for part-time workers on the one hand and full-time workers on the other, could result in a discrimination of part-time workers and an indirect discrimination of women.

In a recent case on fixed-term employment, the Danish Supreme Court addressed the question of what constitutes a comparable permanent employee. The Supreme Court ruled that four employees, who worked in a government agency, were not comparable with the agency’s permanent employees and for this reason they had not been discriminated against on the grounds of their fixed-term contracts.

The Craiova Court of Appeal has ruled that the continuous extensions of a fixed-term employment based on national provisions is not in accordance with the European jurisprudence. Relying on the findings of ECJ case C-614/15, the Craiova Court of Appeal made an exhaustive analysis of the relying arguments for subsequent extensions of fixed-term employments agreements for long periods of time and the objective reasons behind such use of contracts.

On 20 June 2019, Vilnius Regional Court in Lithuania (instance of appeal) delivered a decision in a case where the applicants claimed that a temporary employment agency, UAB Manpower Lit (the ‘Agency’), which recruited temporary workers (‘claimants’) for the European Institute for Gender Equality (‘EIGE’), paid them lower salaries than permanent staff. It was ruled that the Agency had discriminated against these workers by paying them lower salaries than they would have received if they had been recruited directly by EIGE. The Court also ordered the payment of pay arrears for a certain period to the temporary staff.

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).

While it is not strictly necessary to actually work in order to acquire leave entitlement under German law, the Federal Labour Court (Bundesarbeitsgericht – BAG) has ruled that during a sabbatical (unpaid special leave) the employee does not gain any entitlement to paid annual leave.

In a decision with implications for unfair dismissal law generally, the UK’s Supreme Court (SC) ruled that it is not always necessary for a dismissing manager to know about whistleblowing disclosures made by an employee in order for that dismissal to be automatically unfair.

In Austria, a collective bargaining agreement (CBA) for bicycle deliverers has been in force since 1 January 2020. According to the contracting parties (the Austrian Chamber of Commerce and the Austrian Trade Union Federation), it is the first of its kind worldwide.¹x https://www.vida.at/cms/S03/S03_4.8.a/1342616918551/kollektivvertrag/strasse/weltweit-erster-kv-fuer-fahrradboten-abgeschlossen. On this occasion, this article examines the legal basis for employment in this sector and whether this long-awaited step will really lead to an improvement for bicycle deliverers.

Noten

• 1 https://www.vida.at/cms/S03/S03_4.8.a/1342616918551/kollektivvertrag/strasse/weltweit-erster-kv-fuer-fahrradboten-abgeschlossen.

In the context of a takeover of an activity which requires substantial operating resources, not transferring the substantial operating resources cannot necessarily preclude the classification as a transfer of an undertaking, since other factual circumstances make it possible to establish that the identity of the economic entity has been retained.

In case of a transfer of undertaking involving multiple transferees, the rights and obligations arising from an employment contract may be divided between various transferees, if this is possible. If not (or if it is to the detriment of the employee), the transferees would be regarded as being responsible for any consequent termination under Article 4 of Directive 2001/23, even if this were to be initiated by the worker.

Additional benefits paid to high-level sportspersons who have represented a Member State or its legal predecessors are not ‘old-age benefits’ within the meaning of Article 3(1)(d) of Regulation 883/2004, but Article 7(2) of Regulation 492/2011 preclude that they are made conditional of having the nationality of that Member State.

On-board services on international trains do not fall under the scope of Directive 96/71/EC concerning the posting of workers if most of the work is performed in one Member State.

A reduction of old-age pensions under Directive 2008/94 is manifestly disproportionate if the former employee lives or would have to leave below Eurostat’s at-risk-of-poverty threshold, even if s/he receives at least half of the amounts of the benefits from his/her acquired rights.

Denial of surviving spouse pension found legitimate, as living together cannot be considered equal to marriage or registered non-marital partnership.

An unconditional right of pre-emption to pharmacists employed by the municipal pharmacy in a tendering procedure is contrary to the freedom of establishment.

The absence of severance compensation for interim civil servants is not contrary to Directive 1999/70.

German provisions disregarding salary obtained under another jurisdiction when calculating unemployment benefits found contrary to Regulation 883/2004.

The requirements to obtain a right of residence by way of working for 12 months in the last 3 years also apply to persons who have reached the pensionable age during that period.

General subsequent payment based on salary step not found discriminatory, provided that it protects existing acquired rights and if it does not prolong age discrimination. A summary will be provided once an English translation becomes available

Reduction of allowance for living costs for EEAS staff – ECJ annuls judgment of General Court – case referred back to the General Court.

It is possible to provide a contracting authority with the option or even an obligation to exclude a tender participant from the contract award procedure where the exclusion ground at issue is established by one of the subcontractors. However, this cannot happen automatically.

The assistance for integration of mentally disabled children and young people, provided for in the German Social Code does not constitute a benefit within the meaning of Article 3 of Regulation 883/2004 and therefore falls outside its material scope. Morover, Article 5 precludes that the German provision at issue and the child-rearing allowance for a disabled child provided for in the French Social Security Code cannot be considered issues of an equivalent nature for the purpose of Article 5(a). The principle of equal treatment of facts enshrined in Article 5(b) applies, so that the French authorities must take into account similar facts occurring in Germany as though they had taken place on their own territory.

Austrian rehabilitation allowance qualifies as a sickness benefit within the meaning of Article 3(1)(a) of Regulation No 883/2004. Denial of that benefit found possible.

The protection of an employee’s freedom of expression is not limited to comments in a debate on public matters only.

Clause 5 of the Framework Agreement on fixed-term work applies also to workers who continuously occupy interim posts based on successive fixed-term contracts in the absence of a recruitment procedure.

Employees’ remuneration adversely affected by the application of new retrospective law found in breach of the peaceful enjoyment of possessions.