This case involved an employee who claimed that her two consecutive employers breached the principle of equal treatment during their employment relationships in relation to her belonging to the Roma minority. The employee built her case on the decision of the Equal Treatment Authority, which declared that her employers discriminated against her. The Curia (the highest judicial authority in Hungary) found that the decision of another authority has no binding effect on a court according to Act III of 1952 on Civil Procedure and that in cases concerning equal treatment, the burden of proof lies on the defendant (employer) to prove that there is no link between the disadvantage suffered by the plaintiff (employee) and her protected characteristic. The Curia and regional courts also found that the employer fulfils this obligation if it successfully proves that it assessed the applicant’s qualifications, professional suitability and attitude towards work when it decided on the question of whom to employ.

On 12 October 2020, the Labour Court of Appeal of Ghent ruled that there was no indirect discrimination in the case of Mrs. Achbita, because a policy of neutrality does not disadvantage Muslim women who want to wear a headscarf more than any other worker. The Labour Court of Appeal was also of the opinion that the employer should not examine alternative job positions.

In the context of collective redundancies the term ‘establishment’ (Betrieb) must be interpreted in compliance with the Collective Redundancies Directive 98/59/EC (the ‘Directive’). The early warning mechanism of Section 45a of the Austrian Labour Market Promotion Act (Arbeitsmarktförderungsgesetz, ‘AMFG’) is only triggered if the number of the planned redundancies reaches a relevant threshold in an establishment. In the present case the stores in question were qualified as separate establishments within the meaning of Section 45a AMFG.

The Bulgarian Supreme Court of Cassation in a decision of 2 February 2021 has ruled that in cases where the selection process is not a mandatory part of the termination procedure it is entirely up to the employer to conduct the selection and base its termination decisions on the results of such selection.

The Court of Appeal has overturned a High Court decision which granted injunctive relief to prevent the defendant from removing the plaintiff from his position as chief financial officer during his probationary period.

In a recent case, the Danish Supreme Court addressed the question of what constitutes a comparable permanent employee in relation to discrimination against fixed-term employees. The Supreme Court ruled that even though the two groups of fixed-term and permanent singers at the Royal Opera Chorus of the Royal Danish Theatre performed almost the same tasks, their positions were not comparable as the singers’ qualifications and skills were different and, for this reason, the difference in terms and conditions was not discriminatory.

In the case of a ‘service provision change’ under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE), where a service is outsourced or re-tendered, the Employment Appeal Tribunal (EAT) has ruled that an employee’s contract can be split so they go from working full-time for one employer to working part-time for two or more employers.

In its decision rendered on 28 February 2019, the Luxembourg Court of Appeal (Cour d’appel de Luxembourg) examined under which circumstances on-call duty performed at the workplace qualifies as actual working time.
The issue raised was whether the time spent at night by an employee (i.e. the presence of an employee at the workplace) performing the work of a live-in carer was to be considered as ‘actual working time’.
The Court expressly referred to EU case law and decided that the concept of actual working time is defined by two criteria, namely (i) whether the employee during such a period must be at the employer’s disposal, and (ii) the interference with the employee’s freedom to choose their activities.
In view of the working hours provided for in the employment contract and in the absence of evidence proving that the employee would not have been at the employer’s home during her working hours, the Court found that the employee stayed at the employer’s home at night and at the employer’s request. It was irrelevant in this respect whether it was for convenience or not. It was further established that the employee could not leave during the night and return to her home and go about her personal business, so that the hours she worked at night were to be considered as actual working time.
Given that the employee’s objections regarding her salary were justified (as the conditions of her remuneration violated statutory provisions), the Court decided that the dismissal was unfair.

The Bucharest Tribunal has ruled that the time spent by employees in isolation at work during a Covid-19 pandemic state of emergency represents working time. However, the time spent in isolation at home following the period of isolation at work does not constitute rest time.

On 22 May 2020, fifty-two members of the Hungarian parliament petitioned the Constitutional Court which was requested to establish the unconstitutionality of Section 6(4) of Government Decree no. 47/2020 (III. 18), its conflict with an international treaty and to annul it with retroactive effect to the date of its entry into force. According to Section 6(4) of the Decree “in a separate agreement, the employee and the employer may depart from the provisions of the Labour Code” (i.e. ‘absolute dispositivity’). The petition, among other things, alleged the violation of equal treatment and the right to rest and leisure. The Constitutional Court rejected the motion to establish the unconstitutionality of Section 6(4) and its annulment, since it was repealed on 18 June 2020. The Constitutional Court may, as a general rule, examine the unconstitutionality of the legislation in force, however it was no longer possible to examine the challenged piece of legislation in the framework of a posterior abstract norm control.

The German Federal Labour Court (Bundesarbeitsgericht, ‘BAG’) has ruled that the user of an online platform (‘crowdworker’) who takes on so-called ‘microjobs’ on the basis of a framework agreement concluded with the platform operator (‘crowdsourcer’) can be an employee of the crowdsourcer. This applies in a case where the framework agreement is aimed at a repeated acceptance of such microjobs. The decisive factor is whether the crowdworker performs work that is subject to instructions and is determined by third parties in the context of the actual performance of the contractual relationship. The name of the contract is irrelevant. One assumes an employment relationship if the crowdsourcer controls the collaboration via an online platform operated by them in such a way that the crowdworker cannot freely shape their activity in terms of place, time and content.

The Supreme Court (SC) has unanimously decided that drivers engaged by Uber are workers rather than independent contractors. It also decided that drivers are working when they are signed in to the Uber app and ready to work.

The principle, laid down by EU law, of equal pay for male and female workers can be relied upon directly, in respect both of ‘equal work’ and of ‘work of equal value’, in proceedings between individuals.

A temporary-work agency must carry out a significant part of its activities of assigning temporary agency workers locally for local social insurance to be applicable.

If, in a discrimination case, a defendant is willing to pay the full compensation claimed but denies the existence of that discrimination, the discrimination claim must still be heard.

Mandatory vaccination policies may not be contrary to art. 8 ECHR.

Appeal to annul the appellant’s 2014 and 2015 staff (performance) reports rejected.

Appeal to annul the appellant’s 2013 staff (performance) report rejected.

Use of reference year for determining family allowances not found contrary to Article 45 TFEU and Article 7 of Regulation 492/2011, even if subsequent income is significantly reduced.

Application of labour reserve system following the Greek financial crisis not found contrary to EU law. The difference in treatment on grounds of age established by that system pursues a legitimate labour-policy objective and the means of achieving that objective are appropriate and necessary.

Directive 79/7 on equal treatment for men and women in matters of social security does not apply to national legislation which grants a pension supplement to women with at least two children who retire (early) on grounds of law but not in case of voluntary early retirement, as the Directive concerns discrimination between men and women.

EC’s Rejection of request to join the Joint Sickness Insurance Scheme of the Institutions of the European Communities found illegitimate, case referred back to General Court.

Appeal against termination of agency contract was dismissed.

It is allowed to limit both the duration and number of fixed-term contracts without an objective justification being necessary, provided that there is no abuse of the rules.

It is not allowed to unilaterally extend fixed-term contracts anticipating definitive selection procedures for permanent positions, without it being clear when the selection procedure is held. The economic crisis of 2008 cannot justify the absence of any anti-abusive measures.

Article 21 CFREU precludes regulations which limit the application procedure for being a notary at 50 years of age, as it does not appear to meet its objectives, which is for the referring court to verify.

The ECJ has no jurisdiction, as the worker concerned has a fixed employment contract.

Well-founded decision to declare unlawful an announced trade union boycott to pressure foreign company into collective agreement in breach of EEA freedom of establishment.

European Anti-fraud Office and the Commission not found liable for alleged conduct in the context of criminal investigations against a former employee.

Spanish ‘fijos de obra’ employment contracts could be in breach of the Framework Agreement on Fixed-Term Work. Following a transfer, only the rights and obligations arising from the last contract transfer, provided that this is not to the detriment of the employee. Both are for the referring court to verify.

A daily allowance is part of the minimum wage during posting, unless it is paid in reimbursement of expenditure actually incurred on account of the posting. A bonus to reduce fuel consumption is allowed, unless it encourages the driver to endager road safety.

A Member State may impose legislation which require a work permit for third-country national crew members of a vessel flying the flag of a Member State, owned by a company in another Member State.

A person who has not met professional requirements in his home state, but has obtained some qualifications in both the home and host state, is entitled to a verification by the host state authorities whether to acknowledge his qualifications, albeit partly.