Dear EELA Members,

With Christmas approaching quickly, please find EELC newsletter #5, the last newsletter of this year.

There has been only one new case to report, but we are also happy to inform you that EELC’s last issue of the year has been released!

Recent case law highlight

Annual leave has been one of the ECJ’s favorite subjects this year. In the last reported employment law case this year, the ECJ developed this notion further. In case C-385/17(Hein), the ECJ held that reductions in earnings because no work was performed owing to short-time working cannot lead to the vacation pay being lower than the normal pay. This would deter workers from taking leave. Furthermore, the ECJ held that incidental overtime, given its exceptional and unforeseeable nature, does not, in principle, form part of the vacation pay. However, regular and predictable overtime does.

EELC 2018/4

We are happy to inform you about developments in various EU jurisdictions on a wide variety of topics, which should be relevant for employment law practitioners throughout Europe. For example, an Irish court has set limits to checking emails out of business hours. There are also interesting developments on holiday pay in Germany and the UK which could be inspiring for your own practice.

Please take a look at our new case reports, as well as the comments by others!

• Editorial Zef Even
• EELC 2018/35 Peter Vas Nunes (BarentsKrans) – Employees who lose their jobs upon retirement are not entitled to statutory severance compensation (NL)
• EELC 2018/36 Tom McEvoy (Lewis Silkin LLP) – An expectation that a disabled employee should work long hours was potentially discriminatory (UK)
• EELC 2018/37 Janne Nurminen (Roschier Attorneys Ltd.) – Supreme Court rules on discrimination for being overweight (FI)
• EELC 2018/38 Andreas Tinhofer (Mosati Rechtsanwälte) – Collective Redundancies: Failure to notify Employment Service cannot be healed by postponing termination (AU)
• EELC 2018/39 Christian K. Clasen (Norrbom Vinding) – Supreme Court decision on part-time work and fixed-term employment (DK)
• EELC 2018/40 Sarah Lurf (Schima Mayer Starlinger Rechtsanwälte GmbH) – Equal treatment of leased employees by ‘false’ works agreements (AU)
• EELC 2018/41 Luis Aguilar (Eversheds Sutherland) – Spanish Supreme Court now aligned with ECJ’s case law: Limitation to pre-transfer liabilities for new contractor under CBA-led transfers that triggers a non-asset based transfer are not valid (SP)
• EELC 2018/42 Nina Stephan and Paul Schreiner (Luther Rechtsanwaltsgesellschaft mbH) – No reduction of vacation pay for already accrued vacation entitlement in the case of a reduction of weekly working hours later on (GE)
• EELC 2018/43 Soren Kristophersen (Lewis Silkin LLP) – Non-guaranteed and voluntary overtime should be taken into account when calculating holiday pay (UK)
• EELC 2018/44 Pieter Pecinovsky (Van Olmen & Wynant) – Travelling time from home to customers is working time in the absence of a fixed work place (BE)
• EELC 2018/45 Lucy O’Neill (Mason Hayes & Curran) – The limits to checking emails out of business hours (IR)
• EELC 2018/46 Anna Diblíková (Noerr) – Limits to a contractual penalty for non-compliance with a non-compete clause (CZ) 

All subscribers with a hard-copy subscription should receive their copy in January 2019.

While we work with national correspondents, we are always open for guest authors to contribute to our magazine. If you would like to contribute to EELC yourself, please send us an email (eelc@law.eur.nl)!

List of recent case law

• Case C-385/17(Hein): Article 7(1) of Directive 2003/88 and Article 31(2) of the CFREU preclude national legislation which allows, for the purpose of calculating remuneration for annual leave, collective agreements to reflect days on which no work was performed due to short-time working, leading to a lower remuneration for annual leave than the normal remuneration. The temporal effect of this judgment should not be limited.

EU employment law news

Brexit developments: On Wednesday 11 December 2018, Prime Minister May won the ‘no confidence vote’ of the Conservative Party. The UK Parliament vote on the Withdrawal Agreement has been postponed until the week of 14 January 2018, the exact date being unknown yet.

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Concluding remarks

We hope that you appreciate this newsletter to keep you up to date on EU employment law developments. Once again, if you have suggestions or requests regarding this newsletter, please send an email to eelc@law.eur.nl.

We wish you happy holidays and hope to report to you again in 2019!

Best regards,

19 December 2018

Zef Even
Editor-in-chief EELC

Ruben Houweling
General editor Academic Board EELC