ECJ 25 October 2017, case C-106/16 (Polbud), Miscellaneous

Member States may not impose mandatory liquidation on companies that wish to transfer their registered office to another Member State. A restriction on freedom of establishment may be justified by overriding reasons in the public interest, such as the protection of the interests of creditors, minority shareholders and employees, but a general mandatory liquidation goes beyond what is necessary to achieve the objective of protecting these interests.

ECtHR 5 December 2017, application no. 57101/10, Nationality discrimination

Denial of military pension is deemed to be discriminatory based on nationality.

Ribać – v – Slovenia, Slovenian case

Case C-551/16. Free movement, Social insurance

J. Klein Schiphorst – v – Raad van bestuur van het Uitvoeringsinstituut werknemersverzekeringen, reference lodged by the Dutch Centrale Raad van Beroep on 31 October 2017

2018/6 Dismissals anticipating a transfer of undertaking validated (HU)

The Hungarian Supreme Court has held that within the context of the transfer of an undertaking, the transferee can terminate employment relationships immediately after the transfer for operational reasons and can commence preparations to that effect before the transfer.

ECJ 9 November 2017, case C-98/15 (Espadas Recio), Part-time work

While a provision that treats the unemployment benefits of vertical part-time workers unfavourably compared to full-time workers falls outside the scope of the Framework Agreement on part-time work, such a benefit scheme may still violate the principle of equal treatment of men and women, for example, if it is indirectly discriminatory towards women.

2018/2 Court of Appeal restores burden of proof test in discrimination cases (UK)

The Court of Appeal has overruled the recent Employment Appeal Tribunal (EAT) decision in Efobi – v – Royal Mail [2017] IRLR 956 (reported in EELC 2017/41), restoring the previous position that a claimant in a discrimination case has the initial burden of proof – which ‘shifts’ to the respondent to provide an explanation of why its conduct was non-discriminatory if a prima facie case is proven.The Court of Appeal disagreed with Mrs Justice Elisabeth Laing’s ruling in Efobi, that section136 of the Equality Act 2010 had made a substantial change to the law when it was introduced, on the basis that it could not be fair that a respondent should have to discharge the burden of proof without the claimant first showing that there is a case to be answered. Lord Singh ruled that it could not have been Parliament’s intention to remove this initial burden of proof when it enacted the Equality Act.

ECJ 29 November 2017, case C-214/16 (Conley King), Paid leave

The Working Time Directive precludes provisions that establish the right to be paid only after leave has been taken. Further, the right to paid leave (or a corresponding payment at the end of the employment relationship) cannot lapse if the employee has been deterred from taking the leave.

ECJ 5 July 2017, case C-190/16 (Fries), Age discrimination

The non-discrimination principle and the freedom of occupation, as provided for in the Charter of Fundamental Rights of the European Union, do not prevent the EU from setting an age limit for pilots involved in commercial air transport, provided that this is done in accordance with Article 52(1) of the Charter.

ECJ 25 October 2017, case C-106/16 (Polbud), Miscellaneous

Member States may not impose mandatory liquidation on companies that wish to transfer their registered office to another Member State. A restriction on freedom of establishment may be justified by overriding reasons in the public interest, such as the protection of the interests of creditors, minority shareholders and employees, but a general mandatory liquidation goes beyond what is necessary to achieve the objective of protecting these interests.

2018/7 ‘Ryanair’ after ‘Ryanair’: Crew member still left empty-handed? (NL)

A Dutch first instance court applies the recent ECJ Ryanair ruling (C-168/16 and C-169/16) in another Ryanair private international law dispute. Even though the Dutch court accepted jurisdiction, it applied Irish law to the employees’ unfair termination claim.