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.
2010/48: Bonus scheme pro-rated bonus for periods of pregnancy-related inactivity not discriminatory (NL)
A bonus scheme that prorates the bonus for periods of inactivity, even where such periods are caused by maternity leave or by pregnancy-related sickness, is not discriminatory.
2010/66: Employer may ‘level down’ discriminatory benefits (NL)
An employer may refuse to apply a provision in a collective labour agreement granting employees aged 50 and over additional paid annual leave.
2010/86: The need to protect one employee’s interests can justify unilaterally changing a colleague’s working times (PT)
An employer may unilaterally change an employee’s working times (from fixed hours to a shift schedule) if that is necessary to avoid harming another employee’s interests.
2010/82: Employer succeeds in discriminatory dismissal of employee who lacked work permit (AU)
Dismissal of an illegal worker (i.e. a worker lacking a work permit) could not be sex discriminatory according to Austrian law as it stood before being amended in 2008.
2010/77: Employee being openly gay affected harassment claim (UK)
The Employment Appeal Tribunal (EAT) allowed an appeal against a finding that an employee was subjected to unlawful sexual orientation discrimination after his manager revealed to other employees that he was gay. The Employment Tribunal had failed properly to take into account, among other things, that the claimant had been open about his sexuality whilst working at a different office of the same organisation.
2010/89: Accepting compensation without protest causes employee to lose right to claim unfair dismissal (PT)
An employee who has been made redundant and who accepts severance compensation without protest, loses the right to claim for unfair dismissal.
2010/60: Dismissal following notice that employee was undergoing fertility treatment not presumptively discriminatory (DE)
It was up to a female sign language interpreter undergoing fertility treatment to show facts that raised a presumption of discrimination when she lost her job in a round of redundancies.
2010/64: Dismissal at age 65 implied term of employment and not in breach of Directive 2000/78 (IR)
An employee brought judicial review proceedings of a decision by her employer, the Health Service Executive (HSE), to terminate her employment upon her reaching the retirement age of 65. Although the employee was never furnished with a contract of employment, the Court held that a mandatory retirement age of 65 was an implied term of her contract of employment, and that the employer’s decision to terminate the employee’s employment on her reaching the age of 65 was lawful.
2010/40: Supreme Court, shunning distinction between capital and labour intensive, applies “Spijkers criteria” comprehensively (NO)
Rather than assessing an undertaking as capital-intensive or labour-intensive the Norwegian Supreme Court considers a comprehensive assessment of the "Spijkers criteria". In the present case the Supreme Court found that there had been a transfer of an undertaking even if there was no contract between the former and new supplier and no equipment or other assets were transferred