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.
2011/22 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.
2011/27 Pregnancy protection despite collective redundancy (HU)
A civil servant in a public hospital was informed that she was to be dismissed in the context of a collective redundancy. As she was pregnant at the time, she had dismissal protection and could not be dismissed. Subsequently, the hospital’s activities were privatised. Even though the Hungarian transfer of undertaking legislation does not apply fully to civil servants, the entity that took over the hospital had to offer her employment.
2011/14: Employer may not deny bonus to employees who participate in an unlawful strike (FI)
It was deemed discriminatory and a breach of the employer’s duty to respect employees’ freedom of association for an employer to refuse to pay bonuses to employees who had participated in unlawful trade union strikes. However, this did not entitle the employees to separate compensation for discrimination.
ECJ 22 December 2010, cases C-444/09 and C-459/09 (Gavieiro), Fixed-term work
Interim civil servants fall within the scope of Directive 1999/70, which covers length-of-service increments. The lack of a reference to the Directive in domestic law does not preclude that law from constituting a measure of transposition. Clause 4 of the Directive is unconditional and sufficiently precise for individuals to rely on it in the period from the transposition deadline, with retroactive effect.
2011/10: Danish Supreme Court turns off the money printer in relation to failure to inform employee of employment particulars (DE)
Following a period of confusion regarding the level of compensation for inadequate statements of employment particulars, the Danish Supreme Court laid down a number of assessment principles to apply when setting the correct level. In this particular case, the employee was awarded approximately € 1,350 in compensation for never being issued with a statement of particulars, although he had requested one.
2011/49 Creative interpretation of law on compensating forced absence from work in light of EU principles (LT)
If an employee has been reinstated at work by a court judgment, compensation for forced absence from work cannot be calculated differently as a result of the fact that before the dismissal the employee did not actually perform his or her work.
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.