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 14 October 2010, case C-345/09 (J.A. van Delft et al. – v – College van Zorgverzekeringen), Social insurance
Neither Regulation 1408/71 nor Article 21 TFEU preclude national legislation under which recipients of a pension, who reside in another Member State in which they are entitled to sickness benefits in kind provided by that Member State, must pay, in the form of a deduction from their pension, a contribution in respect of those benefits even if they are not registered with the competent institution of their Member State of residence. However, Article 21 TFEU does preclude national legislation in so far as it induces or provides for an unjustified difference of treatment between residents and non-residents as regards ensuring the continuity of the overall protection against the risk of sickness enjoyed by them under insurance contracts concluded before the entry into force of that legislation.
ECJ 14 October 2010, case C-428/09 (Union Syndicale Solidaires Isère – v – Premier Ministre), Working time
Persons employed under an educational commitment contract fall within the scope of the derogation in Article 17(3)(b) and/or (c) of the Directive, but the French legislation at issue fails to afford them appropriate protection and is, therefore, not compatible with the Directive.
ECtHR 5 October 2010, (Kopke – v – German), Application no. 420/07, Fundamental rights
The European Court of Human Rights (“ECtHR”) has recently considered these cases, which have a direct and indirect impact on employment law. Kopke raises issues of an employer using covert surveillance on an employee to investigate and prevent theft. Lalmahomed was a criminal case, but illuminates the strict requirements of the need for a fair procedure. Cudak is a case in which the right to bring a claim for unfair dismissal was given primacy over the public international law principle of state immunity.
ECJ 1 October 2010, case C-3/10 (Franco Affatato – v – Azienda Sanitaria Provinciale di Cosenza), Fixed-term work
Clause 5 of the Framework Agreement does not preclude national legislation, such as Article 36(5) of Decree 165, prohibiting conversion of fixed-term contracts into permanent contracts, where the legal order of that Member State contains other effective measures to avoid and, as necessary, penalise the abusive use of successive fixed-term contracts. It is for the national courts to assess to what extent such measures are adequate, provided they are not less favourable than those governing similar situations and that they do not make it impossible or excessively difficult to exercise the rights conferred by EU law.
2011/28 No derogation is possible in relation to daily 11 hour rest period (FR)
The daily rest period of 11 consecutive hours set by Directive 93/104, as amended by Directive 2000/34/EC1 is interpreted as prohibiting all derogations.
ECtHR 23 September 2010 (Obst – v – Germany) Application no. 425/03, Fundamental rights
The European Court of Human Rights (ECtHR) recently considered these two cases about the dismissal of an employee from a religious organisation. The issue was whether these dismissals were compatible with Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“European Convention on Human Rights” or ECHR), which guarantees the right to respect for private and family life. Although both cases involved Church bodies, the rulings have wider implications for all ideological employments, including the scope of Article 4 of Directive 2000/78/EC. This provision allows Member States to maintain or adopt legislation “pursuant to which, in the case of occupational activities within churches and other public or private organisations the ethos of which is based on religion or belief, a difference of treatment based on a person’s religion or belief shall not constitute discrimination where, by reason of the nature of these activities or of the context in which they are carried out, a person’s religion or belief constitute a genuine, legitimate and justified occupational requirement, having regard to the organisation’s ethos”.
2011/6: Loss caused by ex-employer’s victimisation not too remote (UK)
A law firm that victimised a former employee by giving her a bad reference, because she had brought a sex discrimination claim against it, was liable to pay her compensation for loss of earnings when a prospective new employer withdrew a job offer because of the reference.
2010/76: Mandatory retirement of law firm partner at age 65 justified (UK)
It was lawful for a law firm to operate a policy of mandatory retirement of partners at the age of 65 as this was a proportionate means of meeting various legitimate aims.
2011/25 Statistics alone insufficient to establish presumption of “glass ceiling” (GE)
An employee who is not promoted to a higher position and who alleges that this is because there is a “glass ceiling”, must establish facts from which it may be presumed that there has been gender discrimination. Providing statistics to the effect that women are underrepresented in senior positions is insufficient for this purpose.