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.
2011/1: What happens to the contract of an employee who works only partially for the transferred business? (FR)
When the employment contract of the employee is “mainly” performed in the transferred business activity, the entire contract is transferred to the transferee.
2011/2: What happens to the contract of an employee who works only partially for the transferred business? (FR)
When the application of Article L. 1224-1 of the Labour Code results in a change of the employment contract for the transferred employee, other than a change of employer, he or she is entitled to object to such a change. It is then the transferee’s duty, if it cannot maintain the employee’s previous working terms and conditions, to either formulate new proposals, or if the employee refuses to accept those proposals, initiate a dismissal proceeding. Failing to do so will entitle the employee to file for the judicial termination of his or her employment contract, which will have the same consequences as a dismissal without real and serious cause.
2010/52: Fujitsu penalised for failure by parent company to apply local co-determination rules (FI)
A Finnish subsidiary should have carried out codetermination negotiations before the Dutch parent company made a decision to close down the subsidiary's production facility.
2010/61: Employer may exclude older employees from voluntary exit arrangement (GE)
The exemption of older employees from a general offer to conclude attractive severance agreements is compatible with the German General Anti-Discrimination Act (Allgemeines Gleichbehandlungsgesetz, “AGG”).
2010/56: Claim for invalid dismissal crosses over to transferee (CZ)
The rights and obligations of an employee who was dismissed invalidly prior to a transfer of undertaking cross over to the transferee. In this particular case, however, they remain with the transferor on account of a judicial error.
2010/70: Illegal monitoring of employees makes collected evidence of computer abuse inadmissible in dismissal proceedings (IT)
An employee was discovered having repeatedly accessed the Internet during working time and was dismissed on the grounds that such computer use was in breach of the company’s regulations. The employer had found out about the transgression with the aid of ‘Superscout’ software. This made the discovery illegal. Hence the evidence of the transgression was inadmissible and the dismissal was ineffective.
2010/71: Provision limiting Member States’ right to derogate from Working Time Directive in respect of public transport has direct (vertical) effect (FR)
Article 17 of the Working Time Directive allows Member States to exclude certain activities, such as passenger transport, from the obligation to grant employees a rest break after six hours of work. However, Member States that do this must afford the employees concerned equivalent periods of compensatory rest or, if that is not possible, with appropriate protection. An exempted public body, in this case the Paris metro, that fails to afford its employees such equivalent compensation or appropriate protection cannot rely on its exempted status and must therefore apply the normal national rules.
2010/63: Dismissal for poor productivity does not constitute age discrimination unless discriminatory intent is proved (LU)
In Luxembourg, poor productivity can be used to select the employee(s) to be made redundant for business reasons, even though it leads in fact to the dismissal of older or sick employee(s). If the dismissal occurred before Luxembourg transposed Directive 2000/78, it can still be incompatible with the ‘principle of non-discrimination’, but in that case the employee must prove discriminatory intent.
2010/43: 'No visible jewellery' policy not (indirectly) discriminatory (UK)
A claim of indirect discrimination on grounds of religion or belief must be based on actual or potential disadvantage to a group rather than a single individual. Accordingly, a Christian employee did not suffer indirect discrimination when her employer, in line with its uniform policy, insisted that a cross on her necklace be concealed.
2010/41: Transfer of undertaking despite termination by the transferor followed by a new contract with the transferee (CZ)
Where, in a transfer of undertaking situation, the employment contract with the transferor is expressly terminated and a "new" contract is entered into with the transferee, there is no real termination and the employee is not eligible for severance compensation.