2014/3 Dismissal for being HIV-positive violates ECHR (GR)

In 2009 the Greek Supreme Court held that being HIV-positive does not make an employee ‘disabled’. In a recent judgment, the European Court of Human Rights held otherwise.

2014/3 Dismissal for being HIV-positive violates ECHR (GR)

In 2009 the Greek Supreme Court held that being HIV-positive does not make an employee ‘disabled’. In a recent judgment, the European Court of Human Rights held otherwise.

2012/49 UK protection against dismissal on grounds of political opinions inadequate (UK)

The European Court of Human Rights (ECtHR) has ruled that an employee dismissed for being a member of the far-right British National Party (BNP) did not have adequate redress under United Kingdom law. The relevant legislation was incompatible with the European Convention on the Protection of Human Rights and Fundamental Freedoms (the ‘Convention’) because it did not provide sufficient protection against dismissal on grounds of their political opinions or affiliations, including extreme views that “offend, shock or disturb”.

2012/49 UK protection against dismissal on grounds of political opinions inadequate (UK)

The European Court of Human Rights (ECtHR) has ruled that an employee dismissed for being a member of the far-right British National Party (BNP) did not have adequate redress under United Kingdom law. The relevant legislation was incompatible with the European Convention on the Protection of Human Rights and Fundamental Freedoms (the ‘Convention’) because it did not provide sufficient protection against dismissal on grounds of their political opinions or affiliations, including extreme views that “offend, shock or disturb”.

ECtHR 12 February 2008, (Guja – v – Moldova), Application no. 14277/04 and ECtHR 6 October 2011, (Vellutine and Michel – v – France), Application no. 32820/09, Fundamental rights, Whistleblowing, Unions

The European Court of Human Rights (ECtHR) is developing a clear jurisprudence in relation to Article 10 of the European Convention on Human Rights in the employment context. Although this right to expression by the employee - contrary to the employer’s interests - must be balanced against a duty of loyalty to the employer, the ECtHR has afforded the employee ever greater freedom of expression. Both Guja and Vellutine offer wide application to Article 10 in the context of “whistleblowing” and labour disputes.

Guja was a whistleblowing case where a civil servant in a sensitive position disclosed letters to the media in order to draw attention to corruption at the governmental level. The ECtHR disagreed with the decision of the Moldova Supreme Court but the applicability of this decision may be limited to the unique circumstances existing in Moldova, namely the weakness of the rule of law in that country.

In Vellutine, the ECtHR consider the application of free speech in the context of a dispute between a trade union and a publically elected official. The Court had previously placed limits on the language that could be used during a labour dispute (Sanchez v Spain). However, in the context of a dispute involving an elected official greater latitude was permitted. The ECtHR disagreed with the Cours de Cassation that the use of defamatory words was not protected by Article 10.

ECtHR 12 February 2008, (Guja – v – Moldova), Application no. 14277/04 and ECtHR 6 October 2011, (Vellutine and Michel – v – France), Application no. 32820/09, Fundamental rights, Whistleblowing, Unions

The European Court of Human Rights (ECtHR) is developing a clear jurisprudence in relation to Article 10 of the European Convention on Human Rights in the employment context. Although this right to expression by the employee - contrary to the employer’s interests - must be balanced against a duty of loyalty to the employer, the ECtHR has afforded the employee ever greater freedom of expression. Both Guja and Vellutine offer wide application to Article 10 in the context of “whistleblowing” and labour disputes.

Guja was a whistleblowing case where a civil servant in a sensitive position disclosed letters to the media in order to draw attention to corruption at the governmental level. The ECtHR disagreed with the decision of the Moldova Supreme Court but the applicability of this decision may be limited to the unique circumstances existing in Moldova, namely the weakness of the rule of law in that country.

In Vellutine, the ECtHR consider the application of free speech in the context of a dispute between a trade union and a publically elected official. The Court had previously placed limits on the language that could be used during a labour dispute (Sanchez v Spain). However, in the context of a dispute involving an elected official greater latitude was permitted. The ECtHR disagreed with the Cours de Cassation that the use of defamatory words was not protected by Article 10.

ECtHR 3 February 2011 (Siebenharr – v – Germany), Application no. 18136/02, Fundamental rights

The European Court of Human Rights (ECtHR) has recently considered, or will be considering these cases, which have both a direct and indirect impact on employment law. 

In Siebenhaar – v – Germany, the European Court considers the position of the Church as an employer. What is unusual is that this case is now the third such case against Germany in less than six months (Both Obst – v – Germany (Application No 425/03) and Schuth – v – Germany (Application No 1620/03) were decided on 23 September 2010, see EELC 2010-5).

On 12 April 2011, the European Court accepted two cases from the United Kingdom on the place of religious rights in the employment context. In both McFarlane and Ladele, an employee who is a practising Christian refused to preside over a civil partnership service for homosexuals on the premise that they would be facilitating their lifestyle.

It is because of the increasing sensitivity of this issue that the subject should be addressed. Further, it is prudent to note the upcoming cases from the United Kingdom because of their likely widespread impact on employment practice throughout Europe.

The issue of an employee’s religious rights in the workplace is becoming contentious across Europe and it further appears that the Christian faith is particularly problematic. This is likely to be because of twin factors, which appear contradictory. The first is the increasing secularism within the EU and the consequent displacement of Judeo-Christian values; the second is the increasing importance of religion in a multi-faith Europe.

ECtHR 3 February 2011 (Siebenharr – v – Germany), Application no. 18136/02, Fundamental rights

The European Court of Human Rights (ECtHR) has recently considered, or will be considering these cases, which have both a direct and indirect impact on employment law. 

In Siebenhaar – v – Germany, the European Court considers the position of the Church as an employer. What is unusual is that this case is now the third such case against Germany in less than six months (Both Obst – v – Germany (Application No 425/03) and Schuth – v – Germany (Application No 1620/03) were decided on 23 September 2010, see EELC 2010-5).

On 12 April 2011, the European Court accepted two cases from the United Kingdom on the place of religious rights in the employment context. In both McFarlane and Ladele, an employee who is a practising Christian refused to preside over a civil partnership service for homosexuals on the premise that they would be facilitating their lifestyle.

It is because of the increasing sensitivity of this issue that the subject should be addressed. Further, it is prudent to note the upcoming cases from the United Kingdom because of their likely widespread impact on employment practice throughout Europe.

The issue of an employee’s religious rights in the workplace is becoming contentious across Europe and it further appears that the Christian faith is particularly problematic. This is likely to be because of twin factors, which appear contradictory. The first is the increasing secularism within the EU and the consequent displacement of Judeo-Christian values; the second is the increasing importance of religion in a multi-faith Europe.

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.

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.