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.
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.
2011/23 Rebranding of pub discriminated against gay employee (UK)
An employee suffered discrimination on grounds of sexual orientation on account of his employer’s policy of rebranding a well-known “gay” pub in order to widen its clientele. This was done in such a way as to disadvantage gay customers and so directly discriminated against the claimant, who was himself gay and uncomfortable implementing the policy.
2011/17: Portuguese judgment highlights distinction between regular dismissal and probationary termination (PT)
If the parties to an employment agreement are silent on a probationary or notice period, they must be deemed to have agreed to a probationary period of 90 days, during which the employee lacks protection against termination.
2011/22 Replacement of 51 year-old TV presenter was age discrimination (UK)
A 51-year-old female TV presenter suffered unjustified age discrimination when she was replaced by younger presenters. Whilst the employer’s wish to appeal to younger viewers was a legitimate aim, the dropping of an older presenter in order to pander to their assumed prejudices was not a proportionate means of achieving that aim.
2011/33 Reimbursement of costs of expert support to Participation Bodies in The Netherlands (Article)
This article deals with one aspect of Dutch law in the field of works councils, client councils and school councils (together: “participation bodies”), namely reimbursement of legal fees and other expenses. Reimbursement of legal costs forms a crucial, though sometimes expensive element, in the law aimed at supporting these participation bodies. This article considers both the legal and the practical aspects. It may be of particular interest to lawyers of companies with subsidiaries in the Netherlands.