Various of our academic board analysed employment law cases from last year. However, first, we start with some general remarks.

This case involved an employer who claimed that a trade union organised an unlawful warning strike. The Curia (the highest judicial authority in Hungary) found that the trade union violated its obligation to cooperate with the employer according to Act No. 7 of 1989 on Strikes. The Curia and also the Regional Courts made some clear points on the question of the timing of a warning strike. The employer must be notified of a planned strike in sufficient time, which requirement also applies in the case of warning strikes. The time can be considered as sufficient if the employer is able to fulfil its rights to protect its property, prevent damage resulting from the strike, to carry out its duties to protect life and property, and to organise work accordingly. Failing this obligation, the warning strike is unlawful. The notice shall state the date and time that such action will commence.

On 16 December 2020, the Supreme Court of Lithuania (Cassation Court) delivered a ruling in a case where an employee claimed that the employer, JSC ‘Lithuanian Railways’, did not apply the regulations of the company’s employer-level collective agreement and did not pay a special bonus – an anniversary benefit (i.e. a benefit paid to employees on reaching a certain age) – because the employee was not a member of the trade union which had signed the collective agreement. According to the employee, she was discriminated against because of her membership of another trade union, i.e membership of the ‘wrong’ trade union.
The Supreme Court held that combatting discrimination under certain grounds falls within the competence and scope of EU law, but that discrimination on the grounds of trade union membership is not distinguished as a form of discrimination. Also, the Court ruled that in this case (contrary to what the employee claimed in her cassation appeal) Article 157 of the Treaty on the Functioning of the European Union (TFEU) is not applicable because it regulates the prohibition of discrimination on other (sex) grounds. Moreover, the Court found that there was no legal basis for relying on the relevant case law of the ECJ which provides clarification on other forms of discrimination, but not on discrimination based on trade union membership.

If an employer has a policy which is indirectly discriminatory and the employer’s aim is no more than saving money, the Court of Appeal (CA) has ruled that this cannot justify the discrimination. However, needing to balance the books can potentially be a valid justification for indirect discrimination.

An adjudication officer of the Irish Workplace Relations Commission has ruled that an upper age limit for entrance to An Garda Síochána (the national police force) was discriminatory on the grounds of age.

In 2014, the ECJ was presented with a preliminary reference from the District Court in Kolding on the matter of whether EU law provides protection against discrimination on grounds of obesity with regard to employment and occupation. Following the ECJ’s ruling, first the District Court and later the High Court found that an employee’s obesity as such did not constitute a disability within the meaning of Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation since his obesity had not constituted a limitation or inconvenience in the performance of his job.

The Vaslui Tribunal has recently annulled an individual dismissal decision issued during the state of alert in Romania due to formalities which had not been observed by the employer. While the judge invested with determining the matter limited their analysis to the elements contained in the individual dismissal decision, the judicial assistant ascertained, within a competing opinion, that the dismissal decision should have been annulled for other reasons, namely for the fact that, in reality, the employer had implemented a collective redundancy process without observing the procedure and employees’ rights in the event of such dismissal. Relying on the provisions of Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies, the judicial assistant has made an exhaustive analysis of the conditions required for the existence of a collective dismissal.
While the competing opinion does not have the same effect as a court ruling, it is part of the judicial procedure and, from this perspective, the independence and impartiality of all the members of the court and their obedience solely to the law is maintained.

The UK failed properly to implement EU health and safety law by restricting protection from detriment on health and safety grounds to ‘employees’, the High Court (HC) ruled in a recent case. Such protection should be extended to the broader category of ‘workers’. Importantly, this ruling potentially increases employers’ exposure to Covid-19-related health and safety claims.

The Supreme Court of Greece has clarified that the validity of terminations is not affected by the lack of consultation with the employees’ representatives, as per Directive 2002/14/EC on a general framework for informing and consulting employees. In case of non-compliance with such obligation, alternative administrative or judicial measures can be provided by the Member States. It further reiterated that the expediency and necessity of the company’s business decision to suddenly interrupt its plant operation cannot be subject to judicial control.

The Bulgarian Supreme Administrative Court has ruled that an employee’s right to a guaranteed payment from the Guaranteed Receivables Fund arises only after a court decision for opening of bankruptcy proceedings has been issued and the decision has been published in the Commercial Register with the Registry Agency of the Republic of Bulgaria. Therefore, if this condition is not met, the employee is not entitled to such payment even if the employer is de facto insolvent.

According to German law, leave entitlements of an employee shall in principle expire at the end of the calendar year or a permissible carryover period. However, based on the case law of the ECJ, this shall only apply if the employer has previously enabled and summoned the employee to take leave and the employee has nevertheless not taken it. But what happens if an employee is incapacitated for work for a longer period of time and therefore is unable to take his or her annual leave? Does the employer also have to inform this employee about their leave entitlement? The Federal Labour Court (Bundesarbeitsgericht, ‘BAG’) recently had to deal with this question in two cases and now the ECJ will have to address this matter. This is because the BAG has asked the ECJ to decide whether and when an employee’s entitlement to paid leave can expire if an employee loses their ability to work during the course of the leave year, while the employee could have taken at least part of the annual leave before becoming incapacitated for work, but the employee was not properly informed by the employer about their leave entitlement.

Following ECJ case law, the Supreme Court of the Republic of Slovenia has ruled that a worker is entitled to compensation for unused annual leave in the event that the termination of employment has occurred 15 months after the end of the transfer period (i.e. the period for the transfer of the right to use annual leave) provided for in national legislation. The relevant transposition period is therefore three months longer than the transposition period set out in the Slovenian law.

A period of stand-by time according to a stand-by system is not, in its entirety, working time unless the constraints imposed on the worker very significantly affect his or her ability to manage, during that period, his or her freetime.

A period of stand-by time according to a stand-by system is not, in its entirety, working time unless the constraints imposed on the worker very significantly affect his or her ability to manage, during that period, his or her freetime.

Denial of action to annul provisions of Directive 2018/957.

Denial of action to annul provisions of Directive 2018/957.

A host state must grant a Union citizen a reasonable period to find a job.

Appeal against non-renewal of fixed-term contract found invalid.

Requiring a minimum pension amount for allowing early retirement is not contrary to Article 4(1) of Directive 79/7 even if it puts female workers at a particular disadvantage, provided that this is justified by legitimate reasons of social policy which are not related to gender discrimination.

Payment of an allowance only to workers with disabilities who have submitted disability certificates after a date chosen by that employer may constitute direct or indirect discrimination on the grounds of disability.

Transfer of the actuarial equivalent of pension rights from the EU pension scheme to a national scheme is possible not only if the employee enters the national administration for the first time, but also if s/he returns to it.

The concept of “successive fixed-term contracts” in Clause 1 and 5(2) of the framework agreement on fixed-term work (annexed to Directive 1999/70/EC) also covers automatic extensions, even if they do not meet formal national requirements. The referring court must undertake, to the fullest extent possible, assess whether national law can be interpreted in conformity with the directive.

Legislation which reserves dock work to recognised workers may be compatible with EU law if it is aimed at ensuring safety in port areas and preventing workplace accidents. However, the intervention of a joint administrative committee in the recognition of dockers is neither necessary nor appropriate for attaining the objective pursued.

Section 5 of Chapter II of Regulation (EU) No. 1215/2012 also apply if an employee in one member state was recruited to work in another member state, even though that work was not performed for a reason attributable to that employer. They preclude the application of national rules of jurisdiction in respect of an action irrespective of whether those rules are more beneficial to the employee.

While Member States can require that a parent has been uninterruptedly employed during the year prior to the start of the parental leave, they cannot require that s/he was employed during when the child was born or adopted.

Member States may authorise partial access to certain healthcare professions subject to the automatic recognition of professional qualifications; however this applies to the professions but not the professionals benefiting from automatic recognition, who should have full access to the activities covered by the corresponding profession in the host Member State.

In principle, a Member State can require an attorney-at-law from another Member State to cooperate with a local attorney-at-law during litigation, but a general obligation not taking the experience of the visiting laywer into account would go beyond what is necessary in order to attain the objective of the proper administration of justice

Where a worker has concluded more than one employment contract with the same employer, the minimum daily rest period applies to the contracts taken as a whole and not to each of the contracts taken separately.

Italian regulations regarding collective redundancies found outside scope of Directive 98/59 and hence cannot be assessed against articles 20 and 30 of the Charter. Transitional scheme regarding conversion of fixed-term contracts into contracts for an indefinite term not found contrary to Clause 4 of the Framework Agreement on Fixed-Term Work (Directive 1999/70). Unfortunately, no English version of the judgment is available.

The prohibition to ‘take up a position’ within the meaning of Article 22(a)(1)(a) of Directive 2006/43 includes concluding an employment contract, even if the employee has not yet begun to actually perform his or her duties in that post.

Lorry, motor coach and bus drivers who, during an inspection, do not produce the record sheets for the tachograph relating to the current day and the previous 28 days are subject to a single penalty, irrespective of the number of missing record sheets

Unjustified dismissal of Serbian ethnic origin teacher for failing to use standard Croatian in class, considered unable to adapt due to pre-retirement age.

Internal EU Case. Rejection of appeals to EC’s and Council’s decision to revoke officials’ rights to (i) leave of 2.5 days for travelling to the home country and (ii) to a fixed allowance for travelling expenses.