Welcome to the European Employment Law Cases (EELC), an online database of judgments of national courts, the European Court of Justice and the European Court of Human Rights in the field of employment law. In addition to case law, we also bring you the occasional articles and news items. For more information, please click here.
ECJ 10 February 2011, cases C-307 through 309/09 (Vicoplus SC PUH, BAM Vermeer Contracting Sp.zoo and Olbek Industrial Services Sp. zoo, Work and residence permit
Articles 56 and 57 TFEU do not preclude a Member State from making the hiring-out of workers from the Member States that acceded to the EU in 2004 subject to a work permit requirement during the relevant transitional period. Cross-border hiring-out of workers is characterised by the fact that the movement of workers to the host Member State constitutes the very purpose of the services provided by the workers’ employer.
ECJ 10 February 2011, case C-30/10 (Lotta Andersson – v – Staten genom Kronofogdemyndigheten i Jönköping), Insolvency
Article 12(c) of Directive 2008/94 does not preclude a provision of national law that excludes an employee from entitlement under the guarantee of payment on the grounds that the employee, alone or together with close relatives, within the six months preceding the application for a declaration of insolvency, was the owner of an essential part of the business and had a considerable influence on its activities.
ECtHR 3 February 2011 (Siebenharr – v – Germany), Application no. 18136/02, Fundamental rights
The European Court of Human Rights (ECtHR) has recently considered, or will be considering these cases, which have both a direct and indirect impact on employment law.
In Siebenhaar – v – Germany, the European Court considers the position of the Church as an employer. What is unusual is that this case is now the third such case against Germany in less than six months (Both Obst – v – Germany (Application No 425/03) and Schuth – v – Germany (Application No 1620/03) were decided on 23 September 2010, see EELC 2010-5).
On 12 April 2011, the European Court accepted two cases from the United Kingdom on the place of religious rights in the employment context. In both McFarlane and Ladele, an employee who is a practising Christian refused to preside over a civil partnership service for homosexuals on the premise that they would be facilitating their lifestyle.
It is because of the increasing sensitivity of this issue that the subject should be addressed. Further, it is prudent to note the upcoming cases from the United Kingdom because of their likely widespread impact on employment practice throughout Europe.
The issue of an employee’s religious rights in the workplace is becoming contentious across Europe and it further appears that the Christian faith is particularly problematic. This is likely to be because of twin factors, which appear contradictory. The first is the increasing secularism within the EU and the consequent displacement of Judeo-Christian values; the second is the increasing importance of religion in a multi-faith Europe.
2011/30 Visiting Facebook at work is a valid reason for termination (GR)
In this first case in which a Greek court addressed the issue of an employee spending working time on Facebook, the court found that a summary dismissal was not disproportionate.
2011/46 Numerous fixed-term contracts: difference between ‘continuous’ and ‘successive’ employment (IR)
Under the Protection of Employees (Fixed-Term Work) Act 2003, the Labour Court was required to determine whether a former employee of the Irish Civil Service (Mr Beary), who had numerous fixed-term contracts between 2002 and 2008, was entitled to a permanent contract of employment.
The Court also addressed an issue which arose as to whether Ireland had complied with its obligations in implementing Clause 5 of the Framework Agreement annexed to Council Directive 1999/70/EC. The issue arose because the objective of Clause 5 is to combat the abuse of ‘successive’ fixed-term contracts, whereas the 2003 Act is directed at preventing the unlimited use of ‘continuous’ fixed-term contracts.
The Labour Court determined that there was incompatibility between the Framework Agreement and the 2003 Act because although “all periods of employment which are continuous are necessarily successive, not all employment which is successive is necessarily continuous”. The Court concluded that while the former employee had become entitled to a permanent contract, there were objective grounds for not giving the contract.
2011/31 Dismissal, not (discovery of) pregnancy, triggers dismissal protection time-bar (LU)
It was not until after being dismissed that the employee discovered that she was pregnant and had already been pregnant for a while at the time of her dismissal. Luxembourg law has such short time limits for nullifying a dismissal in these circumstances that the employee effectively had no dismissal protection. Nevertheless, the court held her to the statutory time limits and ruled against her.
ECJ 18 January 2011, case C-272/10 (Souzana Berziki-Nikolakaki – v – ASEP and Aristoteleio Panepistimio Thessalonikis), Fixed-term workMs Berziki was employed as a full-time microbiologist by the University of Thessaloniki on the...
2011/44 Dismissal for Using Social Media at Work - Is It Fair? (UK)
The Employment Tribunal dismissed an employee’s claim for unfair dismissal where the employee had made negative comments on Facebook about a customer who subsequently complained to the employer. Whilst the employee had a right to freedom of expression under Article 10 of the European Convention on Human Rights, her employer’s action was justified because of the risk of damage to their reputation. The dismissal fell within the range of reasonable responses available to a reasonable employer.
2011/26 Nine fixed-term contracts: no abuse (IR)
An employee was given two consecutive fixed-term contracts, lasting a total of almost one year. Then, after a break of about four months, she was given seven consecutive fixed-term contracts lasting a total of 3 years. Irish law allows “continuous” fixed-term employment up to a maximum of four years. It was therefore relevant whether the second series of seven contracts constituted a continuation of the initial series of two contracts. This was not the case, but the employer was nevertheless ordered to pay 5,000 for failure to specify the reason why the ninth contract was not permanent.