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.
2014/39 Supreme Court fails to identify transfer, Constitutional Court corrects error (SK)
A state-owned company was privatised. The transaction was clearly the transfer of an undertaking. However, the Social Insurance Agency, applying social insurance legislation, did not see it that way, with the result that a former employee of the company received lower pension benefits than he would have done, had the privatisation been treated as a transfer of undertaking. The issue in three instances was whether the private company had ‘arisen’ out of the state company within the meaning of the social insurance legislation and, if not, whether there was discrimination of private company employees as compared with employees of state-owned companies. It was not until subsequent proceedings in the Constitutional Court that the issue of the transfer came up.
2011/5: Referral to ECJ for clarification of legality of national time-bar rules in relation to discriminatory exclusion from pension scheme (NL)
A pension scheme under which full-time employees were enrolled in the scheme automatically, compulsorily and from the first date of their employment, but part-time staff had to apply in order to participate in the scheme on a voluntary basis, may be sex-discriminatory, depending on how explicitly the part-timers were warned by their employer of the disadvantage of not participating. The ECJ’s case law on the effectiveness of national time-bar rules is not clear, for which reason the ECJ will be asked for clarification.
2011/11: Failure by employer to provide employee with statement of employment particulars does not reverse burden of proof (NL)
The employment contract was silent on the weekly number of hours to be worked. The employee claimed he was employed full time (40 hours per week), whereas the employer claimed that the agreement was for work to be performed on an “on-call” basis. Who carried the burden of proof? The fact that the employer breached its duty to provide the employee with a written statement of employment particulars was insufficient to warrant shifting the burden of proof from the employee to the employer.
ECJ 18 November 2010, cases C-250/09 and C-268/09 (Vasil Ivanov Georgiev – v – Tehnicheski Universitet), Age discrimination
Directive 2000/78 must be interpreted as meaning that it does not preclude national legislation [...] under which university professors are compulsorily retired when they reach the age of 68 and may continue working beyond the age of 65 only by means of fixed-term one-year contracts renewable at most twice, provided that that legislation pursues a legitimate aim linked inter alia to employment and job market policy, such as the delivery of quality teaching and the best possible allocation of posts for professors between the generations, and that it makes it possible to achieve that aim by appropriate and necessary means. It is for the national court to determine whether those conditions are satisfied.
ECJ 18 November 2010, case C-356/09 (Pensionsversicherungsanstalt – v – Christine Kleist), Gender discrimination
Directive 76/207 must be interpreted as meaning that national rules that permit an employer to dismiss employees who have acquired the right to draw their retirement pension, when that right is acquired by women sooner than by men, constitute direct discrimination on the grounds of sex prohibited by that Directive.
2011/32 Employer may amend performance-related pay scheme (PT)
A field salesperson was transferred to the employer’s shop for reasons of performance and internal restructuring. In addition, the employer amended the sales commission scheme, as a result of which the salesperson’s earnings dropped. The salesperson challenged both changes but, surprisingly, the court found in favour of the employer.
2011/8:Cost is not a factor justifying different treatment of fixedterm employees with respect to redundancy package (IR)
The Labour Court was initially required to determine whether an employee with a fixed-term contract should be deemed permanent. It was deemed that she was not entitled to a contract of indefinite duration. In a subsequent case, the Labour Court was required to consider, inter alia, whether this now former fixed-term employee was entitled to the same redundancy package offered to permanent staff of the employing University. The Court believed that the University was not objectively justified in its difference in treatment between the former employee and her comparators, and awarded her a redundancy payment comparable to permanent employees.
ECJ 11 November 2010, case C-232/09 (Dita Danosa – v – LKB Lizings SIA), Gender discrimination
Even if Ms Danosa is not a “pregnant worker” within the meaning of Directive 92/85, if her removal as a Board member was on account of her pregnancy (bearing in mind the reversal of the burden of proof), that removal would be contrary to Directive 76/207. In as much as Latvian law allows such a removal, it is not in line with EU law (§ 74).
2011/16: The (central) works council of French subsidiaries must be informed of a foreign parent company merger project (FR)
The French Cour de cassation1 recently handed down a decision that increases French works council involvement in mergers where the decision-making is carried out at a higher level within the group, such as by the parent company. When a parent company located in The Netherlands and a US company were involved in a merger operation, the (central) works council (“CWC”) of the former’s French subsidiaries should have been informed, in compliance with the combined provisions of EC Regulations 802/2004 and 139/2004 relating to the control of mergers between undertakings and of Articles L.2323-1 and L.2323-20 of the French Labour Code, insofar as all the economic entities are either directly or indirectly affected by the acquisition of sole or joint control. The decision has wide-ranging implications for both French and international groups with subsidiaries in France.