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.
2011/63: American ‘employer’ cannot be sued in Italy (IT)
An Italian salesman may sue the American company with which he has a contract before an Italian court, but only if his work is connected sufficiently to Italy, which was not the case in this dispute.
2011/60: Dismissal for refusing pay cut may be fair provided employer has sound business reasons and acts reasonably (UK)
The Employment Appeal Tribunal (‘EAT’) has confirmed that it may be fair for an employer to dismiss an employee for refusing to agree to reduction in pay if it has good business reasons for implementing the change and acts reasonably in the circumstances. The focus in such cases should be on the reasonableness or otherwise of the employer’s behaviour rather than the reasonableness of the employee’s refusal to accept the new terms.
2011/38 No power for tribunal to apportion liability for unlawful discrimination (UK)
The Employment Appeal Tribunal (EAT) held that an Employment Tribunal had no power to apportion liability for damages between respondents where several respondents were found guilty of the same act of race discrimination. Where more than one party is found guilty of discrimination and the damage is ‘indivisible’, liability should be ‘joint and several’ as a matter of law - that is, the claimant is entitled to recover the entirety of his or her loss from any of the respondents.
2011/20 Activity transferred 80/20% to A and B: employee goes across to A for 100% (NL)
A cleaning company had a contract with the owner of two buildings, A and B. The plaintiff, an employee of the cleaning company, spent about 80% of his working time supervising the cleaners in building A and the remaining 20% of his working time cleaning in building B. Following a competitive bid, his employer lost the contract in respect of building A to one competitor and the contract in respect of building B to another competitor. The court found that he transferred fully (100%) into the employment of the competitor that won the contract in respect of building A.
2012/1: Cross-border transfer of undertaking from Germany to Switzerland (GE)
The cross-border relocation of a German establishment to a foreign country can constitute a transfer of undertaking according to section 613a of the German Civil Code.
2012/47 Protection against dismissal of an employee who discloses pay discrimination (PL)
An employer may not use any labour law sanctions against an employee who discloses breaches of the principle of equal treatment in employment or pay discrimination.
ECJ 19 May 2011, cases C-256/10 and C-261/10 (Fernández), Health and safety
The Directive 2003/10 must be interpreted as meaning that an employer in a company in which the workers’ daily noise exposure level exceeds 85dB, measured without taking account of the effect of individual hearing protectors, fails to fulfil its obligations by simply providing the workers with such protectors.
The Directive does not require an employer to make an extra payment to workers who are exposed to a noise level above 85dB, measured without taking account of the effect of individual hearing protectors. However, national law must provide appropriate mechanisms to ensure that such workers can require the employer to take preventive measures.
ECJ 10 May 2011 (Grand Chamber), case C-147/08 (Jürgen Römer – v – Freie und Hansestadt Hamburg), Sexual orientation discrimination
The supplementary pensions at issue constitute “pay” within the meaning of Article 157 TFEU and do not fall outside the material scope of the Directive.
The Directive precludes national law such as the Tax Provision if certain conditions are satisfied (see above).
If the Tax Provision is discriminatory, Mr Römer can claim equal treatment under the Directive, but not for the period before 3 December 2003.
2011/45 No unilateral change of working time (CZ)
A contract that specifies the employee’s number of working hours per week (in this case, 37.5) and/or her work schedule (in this case, a variable three-shift schedule) limits the employer’s ability to make use of its statutory right to determine those terms of employment at its own discretion.