2018/39 Supreme Court decision on part-time work and fixed-term employment (DK)

The Danish Supreme Court has held there was no discrimination against four part-time teachers at a university in that they did not receive pension contributions. Their positions could not be compared to those of full-time teachers, who were entitled to pension contributions. However, it did constitute a violation of the Danish rules on fixed-term work that the teachers had, for a number of years, been employed on several fixed-term contracts, as they had, in effect, been continuously employed in the same position. Consequently, the teachers were awarded compensation.

2018/43 Non-guaranteed and voluntary overtime should be taken into account when calculating holiday pay (UK)

The Employment Appeal Tribunal has ruled both non-guaranteed and voluntary overtime should be included in the calculation of holiday pay.

ECJ 13 December 2018, C-385/17 (Hein), Paid leave

Torsten Hein – v – Albert Holzkamm GmbH & Co. KG, German case

2018/38 Collective Redundancies: Failure to notify Employment Service cannot be healed by postponing termination (AU)

The Austrian Supreme Court has held that the employer must notify the Employment Service (AMS) when it is contemplating collective redundancies, even if they are carried by mutual agreement. The duty of notification is triggered if the employer proposes a mutual termination agreement to a relevant number of employees, provided the offer is binding and can be accepted by the employees within 30 days. If the employer fails to notify the AMS, any subsequent redundancies (or mutual terminations of employment occurring on the employer’s initiative) are void, even if effected after 30 days.

2018/42 No reduction of vacation pay for already accrued vacation entitlement in the case of a reduction of weekly working hours later on (GE)

According to German law, every employee is entitled to paid annual leave. The amount of pay is generally calculated based on the current salary (known as the “principle of loss of pay”) but a reduction of working hours during the year does not lead to a reduction of entitlement to holiday pay for previously acquired holiday entitlements. If the entitlement was already acquired before the reduction of working time (which can happen because in Germany holiday entitlement is acquired at the beginning of the calendar year), pay during leave will be based on the salary agreed between the employer and employee when the holiday entitlement was acquired and thus, based on the ‘old’ salary.

2018/38 Collective Redundancies: Failure to notify Employment Service cannot be healed by postponing termination (AU)

The Austrian Supreme Court has held that the employer must notify the Employment Service (AMS) when it is contemplating collective redundancies, even if they are carried by mutual agreement. The duty of notification is triggered if the employer proposes a mutual termination agreement to a relevant number of employees, provided the offer is binding and can be accepted by the employees within 30 days. If the employer fails to notify the AMS, any subsequent redundancies (or mutual terminations of employment occurring on the employer’s initiative) are void, even if effected after 30 days.

2018/42 No reduction of vacation pay for already accrued vacation entitlement in the case of a reduction of weekly working hours later on (GE)

According to German law, every employee is entitled to paid annual leave. The amount of pay is generally calculated based on the current salary (known as the “principle of loss of pay”) but a reduction of working hours during the year does not lead to a reduction of entitlement to holiday pay for previously acquired holiday entitlements. If the entitlement was already acquired before the reduction of working time (which can happen because in Germany holiday entitlement is acquired at the beginning of the calendar year), pay during leave will be based on the salary agreed between the employer and employee when the holiday entitlement was acquired and thus, based on the ‘old’ salary.

2018/35 Employees who lose their jobs upon retirement are not entitled to statutory severance compensation (NL)

A provision of Dutch law, according to which employees who lose their jobs upon retirement are excluded from the right to statutory severance compensation, is not in breach of the Framework Directive.

2018/36 An expectation that a disabled employee should work long hours was potentially discriminatory (UK)

The Court of Appeal has confirmed that an expectation that a disabled employee would work long hours was a ‘provision, criterion or practice’ in a disability discrimination claim regarding reasonable adjustments. It also held that, on the facts, the employer’s conduct had caused the employee to resign and this entitled him to claim constructive unfair dismissal.

2018/40 Equal treatment of leased employees by ‘false’ works agreements (AU)

A ‘false’ works agreement, which reduces the standard weekly working hours for permanent staff, also applies to leased employees. However, the pay of leased employees remains governed by the applicable collective bargaining agreement, rather than by the ‘false’ works agreement. Therefore, leased (part-time) employees benefitted from the reduced working hours by the ‘false’ works agreement, but received full pay based on the collective bargaining agreement.