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

The Schleswig-Holstein Regional Labour Court (Landesarbeitsgericht, ‘LAG’) has found that a person who expressed interest in a job through the Internet portal ‘eBay Classifieds’ was an ‘applicant’ within the meaning of the German General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz, ‘AGG’) and, provided the other legal requirements are met, eligible for compensation for immaterial damage. The Court further ruled that the hurdles are high for the compensation claim to be countered by the defence of abuse of rights.

Compensation for a breach of equal treatment on grounds of sex and gender identity shall be awarded to a transgender employee who is not issued women’s work clothing.

In an interim ruling regarding the refusal by the City of Brussels to employ a female candidate wearing an Islamic headscarf, the Brussels Labour Tribunal considered that such a public authority is allowed to pursue a neutrality policy concerning functions that involve contact with the public, thus concluding that the City of Brussels did not discriminate against a female candidate when refusing to employ her on the ground that she wore a religious symbol.

The Dutch Supreme Court has found that a dismissal related to the publication of a book interfered with the employee’s freedom of expression as there was a causal link between the publication of the book and the termination request.

The Constitutional Court of the Republic of Lithuania has recognised that the requirement for certain industries’ employees to undergo a health check before work or be suspended from work without salary in cases where there was no possibility to transfer such employees to other work in the company due to their health was not in conflict with the Lithuanian Constitution.

In its decision rendered on 19 May 2022, the Luxembourg Court of Cassation (Cour de Cassation de Luxembourg) ruled on the applicable law to the employment contract of an employee of a Luxembourg company who was on long-term secondment in France, most notably regarding the provisions applicable to determining retirement age and its consequence on the employment contract. The employee was hired at the age of 62 by a Luxembourg company pursuant to an employment contract governed by Luxembourg law and a few months later was seconded to France (to work at the head office of the group) for a period of five years. However, when the employee reached the age of 65, his employer informed him by means of a letter that, in accordance with the provisions of Luxembourg law, he was entitled to an old-age pension with the consequence that his employment contract was automatically terminated.
The Court of Cassation overturned the decision of the Court of Appeal on the ground of insufficient reasoning as it considered that the Court of Appeal did not respond to the arguments put forward by the employee, who had challenged the validity of his secondment (considering that France was the country in which the employee habitually carried out his work).

This is the first judgment in the Netherlands regarding training costs and repayment arrangements since implementation of Directive 2019/1152/EU on transparent and predictable working conditions in the European Union (the ‘Directive’). The subdistrict court ruled that the training did not qualify as mandatory training, in light of the employee’s position and the agreements that were made. According to the subdistrict court, the repayment arrangements were legally valid: the employee was obligated to repay the training costs.

A recent Irish Labour Court decision held that the complainant was not successful in his claim brought under the transfer of undertakings regulations because there was no transfer of an economic entity.

A school director could not take annual leave without affecting the annual leave rights of her colleagues. As no solution was offered by the employer, the Iaşi Court of Appeal found that the school director could not be considered to have abstained from her right to annual leave. In the absence of effective conditions and real possibilities for the employee to actually benefit from the right to leave, the Court awarded the school director compensation for untaken leave.

The Finnish Labour Court has held in an interlocutory judgment that whether stand-by time is considered working time depends on the limiting effect of stand-by duty on the use of leisure time. Firefighters who worked as officer firefighters were able to spend their time relatively freely during stand-by periods. For officer firefighters, the Labour Court held that their stand-by time was not to be considered as working time in its entirety. The Labour Court came to the opposite conclusion regarding firefighters working as unit leaders. These firefighters were in practice supposed to stay at the fire station in order for them to comply with the required response time, leading to the conclusion that their stand-by time was considered working time in its entirety.

After several years of resistance, the French Supreme Court has decided to implement – at least partially – the position of the European Court of Justice (ECJ) on the commute time of an itinerant employee between their home and the first and last customer of the day. This commute time can qualify, under certain conditions, as effective working time and should be remunerated as such.

The scope of the Framework Directive extends to self-employed workers. The freedom of contract cannot justify refusing to conclude a contract with a self-employed workers for discriminatory reasons.

Although a Member State is not obliged to transfer pension amounts to the ECB pension scheme without an agreement between that Member State and the ECB, it must negotiate in good faith with a view to enter into such agreement.

‘Special corrective appliances’ include corrective spectacles which can also be used outside work. An employer has either to provide these or reimburse expenses and cannot suffice with a general salary supplement.

An appeal against the General Court’s nullification of an appointment decision was dismissed.

The GDPR does not preclude national legislation which enables DPO’s to be dismissed only for just cause, even if not related to the performance of the DPO’s task, insofar as such regulation does not undermine the GDPR’s objectives. A DPO may experience a conflict of interest when other tasks or duties would result in him or her determining the objectives and methods of processing personal data.

While, in principle, Turkish nationals who already have access to employment may not be subjected to a ‘new restriction’, such restriction may still objectively be justified for the protection of public policy.

Directive 2008/94/EC precludes unreasonable recovery claims of insolvency benefits.

The absence of a contractual link between a transferor and a transferee has no bearing on the establishment of the existence of a transfer. In a labor intensive undertaking, the fact that a only very limited number of employees is taken over, without them having specific skills and knowledge essential to the services, is not likely to establish the existence of a transfer.

Directive 2008/94/EC precludes unreasonable recovery claims of insolvency benefits.

A1-certificates are binding even if they are suspended, but the court of the ‘host’ Member State may still set them aside if (i) the issuing institution does not cooperate with the procedure of dialogue and reconciliation, and (ii) the right to a fair trial is still guaranteed. The fact that a company holds a Community licence for road transport does not constitute irrefutable evidence in determining which Member States’ social security legislation applies.

A profession which is subject to qualification requirements by law, but the assessment thereof is to the discretion of the employer, is no ‘regulated profession’ within the meaning of Directive 2005/36.

Daily rest may not be (partially) replaced by weekly rest, even if they follow each other; this also applies when the weekly rest exceeds the required minimum.

Commission which a commercial agent would have received for contracts with new customers or volume increases of contracts with existing customers, if the agency contract would have continued, must be taken into account in determining the indemnity for post-contract benefits. Even if parties used a one-off commission structure, the agent can still be entitled to an indemnity.

Refinements of Austrian salary grading system found discriminatory.

Recalculation of pension rights resulting from transition into a new system not found discriminatory.