Various of our academic board analysed employment law cases from last year.

The Supreme Court has confirmed that recognised trade unions do not have a veto over employers making direct offers to their members to change terms and conditions of employment. Employers must, however, follow and exhaust the collective bargaining processes with their recognised unions before they may make direct offers with a view to resolving an impasse that has arisen.

The Danish Ministry of Employment has been held liable for a protracted legislative process following the ECJ’s ruling in the Ole Andersen case (C-499/08), which concluded that the Salaried Employees Act was not compliant with Directive 2000/78/EC concerning equal treatment in employment and occupation (prohibition of discrimination on grounds of age).

The Federal Labour Court of Germany has continued to specify the requirements for the legality of age limits in employer-funded pension plans under German law. In this case, according to the Court, the employer could impose a maximum age of 55 as a requirement of entry to the company pension plan.

The German Federal Labour Court has held that where a job-filling procedure disregards mandatory procedural and/or promotional obligations in favour of severely disabled persons, this results in the presumption that an unsuccessful severely disabled applicant had not been considered in the procedure and hence had been disadvantaged on account of their severe disability. In the case at hand the severely disabled job applicant was entitled to compensation for non-pecuniary damage.

In a case arising from the sudden collapse of a construction company, the Employment Appeal Tribunal has confirmed the limited scope of the ‘special circumstances’ defence for not consulting on collective redundancies.

The Supreme Court has decided that the summary dismissal of an employee for violating a Covid-19 quarantine order by appearing at work is effective and justified.

In its judgment of 25 November 2021, the Belgian Constitutional Court has upheld the obligation to call on recognised dock workers for the activity consisting of preparing trailers on a dock for shipment with a vehicle specifically intended for that purpose (known as a ‘tugmaster tractor’). The obligation to rely solely on recognised dock workers for the performance of port work is justified, among other things, by the need to improve safety in port areas and to prevent accidents at work. The identical treatment of, on the one hand, the loading and unloading of ships in the strict sense and, on the other hand, the activity of preparing trailers on a dock for shipment with a tugmaster tractor, does not breach the principle of equality and non-discrimination. Therefore, equal treatment of both types of port labour, with regard to the obligation to call on recognised dock workers, is reasonably justified.

The Iaşi Court of Appeal in Romania has upheld a decision issued by the Vaslui Tribunal which found that an employee cannot be the subject of disciplinary action for the refusal to perform work during their weekly rest notwithstanding that a working time schedule imposed by the employer was based on the applicability of an internal company policy.

Working as a rider for the Deliveroo platform is a professional activity that can be performed as a self-employed worker, the Labour Tribunal of Brussels has decided, which also ruled out the possibility of Deliveroo riders enjoying the fiscally beneficial status available for workers active on electronic platforms of the collaborative economy (or ‘sharing economy’).

On 1 December 2021, just prior to the transposition deadline for Directive (EU) 2019/1937 on the protection of persons who report breaches of Union law (the ‘Whistleblowing Directive’), the Irish Supreme Court delivered a judgment that may have an impact on the Protected Disclosures (Amendment) Bill, the piece of legislation intended to be enacted in order to comply with the Whistleblowing Directive. The judgment noted that, while the Oireachtas (the Irish parliament) had envisaged that most complaints for which whistleblower protection would be sought would concern matters of public interest, the actual definition of ‘protected disclosure’ in the Protected Disclosures Act 2014 (the ‘2014 Act’) extends further than that and can cover complaints in the context of employment which are personal to the reporting person. While Ireland has missed the deadline and has yet to enact the Protected Disclosures (Amendment) Bill, one of the intended amendments has been changed since this judgment was delivered.

A disciplinary sanction imposed on a serving judge for sharing a critical press article on Facebook constitutes a violation of the freedom of expression.

The requirement to hold a suitability certificate issued by a Church authority does not justify using fixed-term contracts.

Periods of annual leave must be taken into account when calculating whether an employee reached the threshold to be entitled to overtime payments.

It does not follow from EU law that a national court must disapply national provisions on minimum tariffs for architects and engineers which are contrary to Directive 2006/123, although this can follow from other national provisions. Moreover, the disadvantaged party can claim compensation based on state liability as the German implementation legislation is not in conformity with EU law.

A disabled worker who is incapable of performing the essential duties of the position shall be reassigned to a suitable position, even if s/he is still in the probationary period, provided that the reassignment does not impose a disproportionate burden on the employer.

Member States are allowed to impose sanctions for breaches of the Posting of Workers Directive (96/71/EC) even after five years.

No sufficiently compelling reason justifying retrospective application of a law determining the substance of pensions disputes in pending proceedings.

It is not compulsory for the normal length of night work for firefighters to be shorter than the normal length of day work. It is allowed to provide for a maximum length of night work of 7 hours only for workers in the private sector and not for public-sector workers.

Legislation excluding domestic workers from unemployment benefits found indirectly discriminatory.

Eulex Kosovo qualifies as employer and therefore as defendant in any action regarding the mission in Kosovo.

Medical students who started their training before directive 82/76 was adopted (29 January 1982) and continued with this training after the directive came into force (1 January 1983) are entitled to remuneration for this training, provided that the training meets the applicable criteria.

A Member State may not impose requirements to be a doctor on a person if he possesses all formal qualifications, except for a minor certificate, as the imposed requirements are not proportionate.

National courts must ensure that penalties for non-compliance with administrative obligations are proportionate

Internal EU case. Imposed sanctions on a EU offical found null and void.

Once a child and a parent have obtained a right of permanent residence, they do not need a comprehensive sickness insurance cover. However, they do need it when they want to obtain an initial right of residence for more than three months.

It is possible have a temporary agency worker fill in a permanent position. However, using multiple assignments may be in breach of Directive 2008/104, if the assignment is longer than ‘temporary’ and if there is no objective reason.

Inadmissibility of request whether to annul a judge’s service relationship.

Peace judges must be treated like ordinary judges.