EELA Updates

Summary

2017-07-01

2017/14 Dansk Industri revisited: the Danish Supreme Court overrides the EU Court of Justice (DE)

On 6 December 2016, the Danish Supreme Court delivered its long-awaited judgment on the case of Ajos, addressing the issue of whether a private employer was entitled to refuse to make a redundancy payment in reliance on the former section 2a(3) of the Danish Salaried Employees Act or whether the general principle against discrimination on grounds of age needed to take precedence. It concluded that the employer was entitled to refuse to pay.

Højesteret (Supreme Court), 2016-12-06

Case report

2017-04-01

Germany

2017/3 Meeting the qualification requirements for a job is not a prerequisite for an applicant to be entitled to damages on grounds of discrimination (GE)

A claim for compensation for discrimination was not excluded simply because the applicant did not have the ‘objective qualifications’ necessary for the job. According to the German General Equal Treatment Act (the ‘Allgemeines Gleichbehandlungsgesetz’, or ‘AGG’), what is necessary for a compensation claim is a ‘comparable situation’. According to the latest decision of the German Federal Labour Court (the ‘Bundesarbeitsgericht’, or ‘BAG’) this can occur even if the applicant does not fulfill the general requirements to do the job.

Bundesarbeitsgericht (Federal Labour Court), 2016-05-19

Court watch

2017-04-01

ECJ 15 December 2016, joined cases C-401/15 to C-403/15 (Depesme), Free movement, social insurance

These cases concern the refusal by Luxembourg to grant financial aid to students studying in Luxembourg whilst living in France or Belgium, when they would be entitled to such aid under Regulation 492/2011 on free movement (pursuant to Article 45 TFEU), based on their family circumstances, were it not that the person employed in Luxembourg was not their father but their stepfather. The ECJ found in favour of the students.

European Court of Justice (ECJ), 2016-12-15

Court watch

2017-04-01

ECJ 24 November 2016, case C-443/15 (Parris), Sex discrimination

The ECJ found that a gay lecturer was not unlawfully discriminated against under an occupational pension scheme that did not entitle those over a certain age or sexual orientation to claim a survivor’s benefit for their (same-sex) civil partner or spouse.

European Court of Justice (ECJ), 2016-11-24

Summary

2017-04-01

ECJ 15 December 2016, joined cases C-401/15 to C-403/15 (Depesme), Free movement, social insurance

These cases concern the refusal by Luxembourg to grant financial aid to students studying in Luxembourg whilst living in France or Belgium, when they would be entitled to such aid under Regulation 492/2011 on free movement (pursuant to Article 45 TFEU), based on their family circumstances, were it not that the person employed in Luxembourg was not their father but their stepfather. The ECJ found in favour of the students.

European Court of Justice (ECJ), 2016-12-15

Summary

2017-04-01

2017/3 Meeting the qualification requirements for a job is not a prerequisite for an applicant to be entitled to damages on grounds of discrimination (GE)

A claim for compensation for discrimination was not excluded simply because the applicant did not have the ‘objective qualifications’ necessary for the job. According to the German General Equal Treatment Act (the ‘Allgemeines Gleichbehandlungsgesetz’, or ‘AGG’), what is necessary for a compensation claim is a ‘comparable situation’. According to the latest decision of the German Federal Labour Court (the ‘Bundesarbeitsgericht’, or ‘BAG’) this can occur even if the applicant does not fulfill the general requirements to do the job.

Bundesarbeitsgericht (Federal Labour Court), 2016-05-19

Summary

2017-04-01

ECJ 24 November 2016, case C-443/15 (Parris), Sex discrimination

The ECJ found that a gay lecturer was not unlawfully discriminated against under an occupational pension scheme that did not entitle those over a certain age or sexual orientation to claim a survivor’s benefit for their (same-sex) civil partner or spouse.

European Court of Justice (ECJ), 2016-11-24

Case report

2017-04-01

Belgium

2017/4 Obesity may constitute a disability even if it is falsely presumed (BE)

For the first time, a Belgian court has relied on the Kaltoft case, which holds that obesity may constitute a disability. That case gives rise to protection against discrimination, according to the Labour Tribunal of Liège, even if it is falsely presumed. This is the case where an employer sends an email to an applicant stating that the applicant cannot be hired because his or her obesity is a disability in relation to the job.

Tribunal du Travail de Liège (Labour Tribunal of Liège), 2016-06-20

Case report

2017-04-01

Cyprus

2017/5 Unlawful dismissal of pregnant employee upon business takeover (CY)

The dismissal of a pregnant employee upon her employer’s business takeover was deemed to be unlawful discrimination.

Industrial Disputes Court, 2016-12-28

Summary

2017-04-01

2017/4 Obesity may constitute a disability even if it is falsely presumed (BE)

For the first time, a Belgian court has relied on the Kaltoft case, which holds that obesity may constitute a disability. That case gives rise to protection against discrimination, according to the Labour Tribunal of Liège, even if it is falsely presumed. This is the case where an employer sends an email to an applicant stating that the applicant cannot be hired because his or her obesity is a disability in relation to the job.

Tribunal du Travail de Liège (Labour Tribunal of Liège), 2016-06-20