The German Federal Labour Court (Bundesarbeitsgericht, ‘BAG’) found, that in a compensation case, an unsuccessful job applicant regularly meets the burden of proof for the causal link between their severe disability and a discrimination by only alleging a suspected violation of the requirement for the employer to inform the works council about an application of a severely disabled person.

On 3 October 2023, the Supreme Court of Lithuania adjudicated on a case under a claim brought by the claimant (the employee) against an international freight transport company (the respondent employer) for a declaration that his dismissal from employment was unlawful.

The costs incurred by a European Works Council for necessary expert consultations are to be borne by the central management. The European Works Council is not obligated to primarily use free services provided by employee representative bodies for legal advice.

In Case C-427/21 of 22 June 2023, ALB FILS KLINIKEN, the European Court of Justice (the ‘CJEU’) focused on the interpretation of Article 1(1) and (2) of Directive 2008/104/EC of the European Parliament and of the Council of 19 November 2008 on temporary agency work (the ‘TAW Directive’), in order to better clarify the scope of the Directive itself in relation to forms of long-term labour intermediation.

The Italian Supreme Court with a decision of 2023 confirmed that although in Italy there is no explicit provision on the temporary duration of temporary agency work, this does not preclude this requirement being considered implicit in temporary agency work, in accordance with the Directive 2008/104/EC. Therefore, it will be for the Court to establish, on a case-by-case basis, whether the reiteration of agency work assignments with the same user exceed the limit of a duration that can reasonably be regarded as temporary, in violation of the Italian law and EU rules.

According to the Portuguese Supreme Court of Justice there is no transfer of establishment when a company ceases to provide surveillance and security services to a particular client, following the contracting (by the client) of such services to another company, without any employee or any other resources, skills or organisational instruments having been transferred to the new services provider, which could constitute an ‘economic unit’.
For this assessment, the Supreme Court has taken into consideration the ruling issued by the Court of Justice of the European Union (‘CJEU’) in Case C-675/21, Strong Charon and the enlightenments about the interpretation of Council Directive 2001/23/EC concerning the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses.

The Bucharest Court of Appeal has ruled that in a case where a dismissal is initiated after a transfer of undertakings, but the reason for terminating the employment is attributable to the transfer of undertakings and anticipated prior to the actual transfer, the decision is null and void.
In the case at hand, the real reason for the termination of the employment contract was not believed to be the implementation of the objective restructuring plan per se, but the transfer of undertakings. Thus, even though the dissolution of the job position was considered to be a real one, because the position was no longer part of the organizational chart, the dismissal did not have a serious and objective cause.

The French Supreme Court has recently ruled on two cases concerning paid annual leave. In the first case, the Supreme Court held that an employee whose employment contract is suspended due to an illness, whether of occupational origin or not, continues to acquire paid annual leave rights during this period (Supreme Court, 13 September 2023, no. 22-17.340). In the second case, the Court held that the acquisition of paid annual leave rights due to occupational illness or accident is not limited to one year (Supreme Court, 13 September 2023, no. 22-17.638).

The Italian Supreme Court has held that salary paid during holidays must include all the components that are normally paid to the employee when they work. This decision is in line with the judgments of the ECJ and with the purpose of the Working Time Directive 2003/88/EC.

The concept of ‘total accumulated driving time during any two consecutive weeks’ as set out in Article 6(3) of Regulation No 561/2006 only covers ‘driving time’ within the meaning of Article 4(j) of that regulation.

The fact that an employer is a private undertaking, holding a public service delegation, is irrelevant with regard to the right of a worker to paid annual leave. National legislation or national practice which allows requests for paid annual leave made less than 15 months after the end of the reference period and limited to entitlement accrued and not exercised, due to a long-term absence from work due to illness, during two consecutive reference periods to be granted, is not precluded.

National legislation of a Member State which subjects the income of an EU official who has remained in the service of an institution until pensionable age and who pursues a self-employed professional activity in that Member State to the social security scheme of that State infringes the exclusive competence of the EU to determine the rules applicable to EU officials as regards their social security obligations.

The Court definitively dismisses the appeals brought by Ryanair concerning the support measures put in place by France and Sweden during the Covid-19 pandemic.

Wearing of religious symbols in the workplace: a public administration may decide to prohibit all of its employees from wearing such signs.

The change in the holder of a notarial practice must be treated in the same way as a change of employer and despite inter alia the fact that the notaries become the holder of a practice by reason of their appointment by the State. The ECJ’s summary of the case is available on: https://curia.europa.eu/jcms/upload/docs/application/pdf/2023-11/cp230173en.pdf.

National legislation which, for the purposes of recognizing the length of service of a worker upon his or her establishment in employment, excludes periods of service completed under fixed-term employment contracts that do not amount to 180 per academic year, exceeds what is necessary and is thereby precluded by clause 4 of the framework agreement on fixed-term work.

The hiring of a personal assistant to help a disabled person in everyday life may be limited to persons within the same age range.

An employee who ‘enjoys’ his annual leave while he is quarantined, is not entitled to take that leave at a later moment.

Disciplinary sanctions on teachers with civil-servant status for striking during working hours: no violation of the Convention.

Rules on ‘home grown’ football players could infringe the free movement of workers as these could be indirectly discriminatory on grounds of nationality.

An EU migrant worker’s mother who is dependent on that worker, may apply for social assistance without that application questioning her right of residence.