Welcome to the EELA EELC Updates, 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.
2014/23 Different termination rules for blue and white collar workers finally ended (BE)
The Belgian Constitutional Court has judged that the differences in treatment between blue and white collar workers regarding notice periods and sick pay are discriminatory. It gave the legislator a deadline of 8 July 2013 to harmonise the statutes relating to blue and white collar workers in relation to notice periods and sick pay. This eventually led to the Act of 26 December 2013 which provides a thorough modernisation of Belgian termination law and has pensioned off the well-known ‘Claeys formula’.
ECJ 7 July 2011, case C-310/10 (Ministerul Justitiei si Libertatilor Cetatenesti – v – Stefan Agafitei and others), Other forms of discrimination
The plaintiffs were 31 Romanian judges. They felt discriminated against because prosecutors within two branches of the Justice Department (the branch that prosecutes corruption and the branch that prosecutes terrorism) were given a salary increase, as a result of which they earn more than judges.
The reference for a primary ruling is inadmissible.
2011/53: Does disclosing employee’s sexual orientation constitute discrimination or harassment? (UK)
The Court of Appeal has confirmed that a homosexual employee who had chosen to reveal his sexual orientation to colleagues at a previous workplace could not claim that he was unlawfully discriminated against or harassed simply because he was not able to choose how and when he could reveal his sexual orientation to other colleagues. However, ‘outing’ someone without consent could amount to discrimination and harassment in other circumstances.
ECJ 30 June 2011, case C-388/09 (Joao Filipe da Silva Martins - v - Bank Betriebskrankenkasse- Pflegekasse), Social insurance
Articles 15 and 27 of Council Regulation (EEC) No 1408/71 […] must be interpreted as not precluding a person in a situation such as that at issue in the main proceedings, who draws retirement pensions from retirement insurance funds both of his Member State of origin and of the Member State in which he spent most of his working life and has moved from that Member State to his Member State of origin, from continuing, by reason of optional continued affiliation to a separate care insurance scheme in the Member State in which he spent most of his working life, to receive a cash benefit corresponding to that affiliation, in particular where cash benefits relating to the specific risk of reliance on care do not exist in the Member State of residence, that being a matter for the referring court to ascertain.
If, contrary to that hypothesis, cash benefits relating to the risk of reliance on care are provided for under the legislation of the Member State of residence, but only at a lower level than that of the benefits relating to that risk from the other pension-paying Member State, Article 27 of Regulation No 1408/71 […] must be interpreted as meaning that such a person is entitled, at the expense of the competent institution of the latter State, to additional benefits equal to the difference between the two amounts.
2011/7: Discriminatory termination in probationary period can lead to claims for damages (GE)
Although the German Law on Dismissal Protection does not apply during an employee’s initial probationary period, this does not prevent an employee whose employment has been terminated during this period from bringing a claim for damages as a result of discrimination.
2011/51 Lump-sum agreements in days ("forfait-jours") validated under strict conditions (FR)
The French Supreme Court has validated the principle of lump sum agreements in days (forfait jours)1, despite opposition from the European Committee of Social Rights.
2012/8: Posted workers may benefit from the application of Belgian law (BE)
The Belgian courts have jurisdiction over foreign employers who post their workers in Belgian territory. Belgian law on temporary work, temping and the lending of employees constitutes mandatory law within the meaning of Article 7(2) of the Rome Convention (now Article 9 of “Rome I”) and thus applies to posted workers on Belgian territory, notwithstanding any choice of law to the contrary. If the legislation is not complied with, the employee will be deemed to be employed by the receiving company under an open-ended employment contract subject to Belgian labour law.
2012/6: Parent company liable as “co-employer” for unfair dismissal (FR)
A confluence of interests, activities and management between two entities in the same group can result in a co-employment relationship. If such a co-employment relationship exists a Job Preservation Plan drawn up by only one of the entities is unlawful and each co-employer will be required to bear the consequences and pay damages to redundant employees.
2011/55: Reasonable adjustment need not have ‘good prospect’ of removing disabled employee’s disadvantage (UK)
Under UK disability discrimination legislation, a proposed adjustment does not need to have a ‘good or real prospect’ of removing a disabled employee’s disadvantage in order to be regarded as reasonable. It is sufficient that there is merely some prospect that it will succeed.
2011/48 Inactive stand-by periods can be compensated differently from active working hours (BE)
Remuneration for stand-by periods, during which an employee is simply asked to be available by phone in order to answer urgent calls, without the obligation to be at a specific location or to perform his habitual tasks, need not be equivalent to the remuneration for active working hours.