2015/1 No obligation to inform employee representatives of transfer of business entity until final agreement (FI)

The management of a company informed the employee representatives that part of the company’s business – its stone building materials department – had been sold. It did so immediately after the purchase agreement was executed, 7½ hours before the transfer of ownership. The two responsible directors were prosecuted for violation of the Finnish Act on Co-operation within Undertakings (the “Codetermination Act”). At first instance, they were fined, but on appeal the court acquitted them. The Court of Appeal found that there was no legal obligation to inform the employee representatives until after reaching final agreement on the transfer of an undertaking and that the directors had informed the representatives “in good time” as provided by the law transposing Article 7 of the Acquired Rights Directive in Finland.

<strong>2015/40 The nature of a transferred activity, including its asset or labour intensiveness, determines the existence of a transfer of undertaking (HU)</strong>

In the case of an asset-intensive business, a transfer of undertaking may occur if the tangible assets are transferred, even though the employees are not taken over by the transferee.

ECJ 26 November 2014, joined cases&nbsp;C-22,&nbsp;61-63&nbsp;and 418/13&nbsp;(Raffaela Mascolo and others &ndash; v &ndash; Ministero dell&rsquo; Instruzione), Fixed-term work

2015/13 Implied choice of law in international employment contracts (AT)

Whether, and in favour of which jurisdiction, the parties to an employment contract with a cross-border dimension have made an implied choice of law, must be decided on a case by case basis. Essential indicators of an implied choice of law include direct references in the employment contract or related documents to concrete provisions and practices of a specific jurisdiction and the use of typical terms and clauses used by this jurisdiction

<p><strong>2015/41 No discrimination where Muslim candidate was told not to wear a jilbab that could pose a risk to health and safety (UK)</strong></p>

In a case involving a claim for indirect discrimination on grounds of religion or belief, the Employment Appeal Tribunal (EAT) agreed that an employer’s uniform policy, which required that no garment worn by an employee should present a tripping hazard, did not indirectly discriminate against Muslim women who wore jilbabs (long, flowing garments which cover the body).

2014/60 Harassed employee can claim damages for breach of health and safety rules as well as compensation for mental injury (FR)

An employee who is the victim of harassing behaviour is entitled – cumulatively – to at least two and, in some cases, three types of damages: compensation for emotional suffering, compensation for breach of the health and safety rules applicable to employers and, in some cases, an award for constructive dismissal.

<p><strong>2015/49 Non-compete clause may limit cross-border activity (LU)</strong></p>

For a non-competition clause in an employment contract to be valid under Luxembourg law, it cannot, inter alia, apply beyond national territory and it can only prohibit an independent activity identical or similar to that of the former employer. However, in a recent decision the Court of Appeal validated a non-competition clause that extended the prohibition against competing into France and prohibited an employed activity for a company competing with the former employer’s company.

ECJ 13 November 2014, case&nbsp;C-416/13&nbsp;(Mario Vital P&eacute;rez &ndash; v&ndash; Ayuntam&iacute;ento di Oviedo), Age discrimination

2015/17 Employee may not be dismissed on the day after returning from parental leave (LV)

Latvian Labour Law does not prohibit the employer from making the employee’s position redundant while the employee is on parental leave. However, if it does this the employer must remember that it is still obliged to offer the employee similar or equivalent work on no less favourable conditions and terms of employment. Labour law does not make this obligation conditional on what the employer is able to achieve.

ECJ 11 November 2014, case&nbsp;C-530/13&nbsp;(Leopold Schmitzer &ndash; v &ndash; Bundesministerin f&uuml;r Inneres), Age discrimination