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Journal European Employment Law Cases x
2016/9 Employee lawfully dismissed for poor behaviour during investigation of her harassment claim (CY)
Keywords sexual harassment
Authors Panayiota Papakyriacou
An employee's behaviour during the investigation of a sexual harassment complaint that she had made against her manager was a crucial factor in the Court's decision to dismiss her application for damages for unlawful termination and discrimination.
Panayiota Papakyriacou
Panayiota Papakyriacou is a lawyer with George Z. Georgiou & Associates LLC in Nicosia, Cyprus, www.gzg.com.cy.
Case C-518/15. Working Time
Ville de Nivelles –v– Rudy Matzak, reference lodged by the Belgian cour du travail de Bruxelles on 28 September 2015
Keywords working time
ECJ 17 November 2015, case C-115/14. (Regio Post), Social Dumping
RegioPost GmbH & Co. KG –v– Stadt Landau in der Pfalz, German case
Keywords social dumping
2016/13 Compensation for wrongful dismissal includes loss of equity income (LU)
Keywords unlawful dismissal
Authors Michel Molitor
The compensation for an employee who is a victim of unlawful dismissal should be as comprehensive as possible, but only harm that is directly linked to the dismissal should be compensated. Material damage suffered by an employee in a senior position may include benefits such as profit shares received in his or her position as an equity partner. In this case, the Court of Appeal ordered a firm to pay a former employee the exceptional amount of more than one million Euros in compensation for wrongful dismissal.
Michel Molitor
Michel Molitor is an avocat with MOLITOR, www.molitorlegal.lu.
Opinion of Advocate-General Bot of 25 November 2015 in case C-441/14. (Ajos), Age Discrimination
Dansk Industri, acting on behalf of Ajos A/S –v– Estate of Karsten Eigil Rasmussen, Danish case
Keywords age discrimination
ECJ 3 March 2016, case C-12/14. Free Movement – Social Insurance
European Commission –v– Republic of Malta
Keywords free movement – social insurance
2016/15 Former CEO awarded € 1,250,000 compensation for unfair dismissal (IR)
Keywords unfair dismissal
Authors Orla O'Leary
Under Irish law, an employee claiming compensation for constructive dismissal bears a high burden of proof. Failure to exhaust the employer's grievance procedure before bringing such a claim to court is generally a recipe for failure. However, a CEO who brought such a claim without first going through the grievance procedure was recently awarded record compensation of € 1.25 million.
Orla O'Leary
Orla O'Leary is a solicitor with Mason Hayes & Curran in Dublin, www.mhc.ie.
2016/8 A limited company that was a member of an LLP was allowed to bring a claim alleging direct discrimination by the LLP (UK)
Keywords associative age discrimination
Authors Florence Chan
Mr Abrams was a member of a limited liability partnership (LLP) and was due to retire. For tax reasons, shortly before retirement Mr Abrams decided to set up a limited company to take his place as a member of the LLP. This was accepted by the LLP. Mr Abrams's employment by the LLP was stopped and he no longer had a continuing contractual relationship with it. The limited company, as a member of the LLP, was entitled to receive the profit share that Mr Abrams would have received had he continued as a member. It was also agreed that this limited company would supply the services of an appropriate fee-earner to the LLP (which was, in practice, Mr Abrams).
When Mr Abrams reached retirement age, the LLP tried to terminate his services on the basis that he had reached retirement age and the LLP objected to Mr Abrams's limited company continuing to be a member of the LLP.
Mr Abrams and his company brought a claim of age discrimination against the LLP at the Employment Tribunal (ET) and the ET had to decide if a limited company could bring such a claim, which was effectively that it had suffered detrimental treatment because of a protected characteristic of someone with whom it was associated. The ET decided it could and the respondent appealed to the Employment Appeal Tribunal (EAT).
Florence Chan
Florence Chan is a Legal Assistant at Lewis Silkin Hong Kong: www.lewissilkinemployment.com.
2016/14 Compensation in lieu of paid leave, if not time-barred, can be inherited by a deceased employee's heirs (GE)
Keywords paid leave
Authors Paul Schreiner and Dagmar Hellenkemper
An employee who does not recover from illness during the calendar year in which he accrues paid leave (the 'leave year') and who continues to be incapable of taking that leave, loses the right to take it 15 months after the end of the leave year, i.e. on March 31 of the second calendar year following the leave year. If his employment terminates within that 15 month period, his entitlement to leave converts into a claim for payment in lieu, and as such, can be claimed by his heirs if he dies.
Paul Schreiner
Paul Schreiner and
Dagmar Hellenkemper
Dagmar Hellenkemper are Rechtsanwälte with Luther Rechtsanwaltsgesellschaft mbH, www.luther-lawfirm.com.
Case C-454/15. Insolvency Protection
Jürgen Webb-Sämann –v– Christopher Seagon acting as liquidator in the insolvency of Baumarkt Praktiker DIY GmbH, reference lodged by the German Hessisches Landesarbeitsgericht on 24 August 2015
Keywords insolvency protection
Case C-569/15. Free Movement – Social Insurance
X –v– Staatssecretaris van Financiën, reference lodged by the Dutch Hoge Raad on 5 November 2015
2016/5 Government order to suspend civil servants' pension payments discriminatory (HU)
Keywords discrimination, other grounds
Authors Dr. Ildiko Ratkai
The European Court of Human Rights (ECtHR) has recently ruled on a Hungarian law suspending payment of civil servants' pensions for the period during which they are employed in certain areas of the public sector. The ECtHR found this law to be discriminatory as it breaches Article 14 of the European Convention on Human Rights (ECHR) read in conjunction with Article 1, Protocol 1. Hungary, as the respondent State, is to pay pecuniary and non-pecuniary damages and procedural costs and expenses to the applicant, Mr Gyula Fábián. The judgment was delivered on 15 December 2015 and, if not appealed to the Grand Chamber, will cease to be appealable on 15 March 2016.
Dr. Ildiko Ratkai
Dr. Ildiko Ratkai is a lawyer with Ratkai Law Firm, www.ratkai.com in Budapest.
2016/7 The prohibition against gender-based discrimination applies to self-employed contractors (HU)
Keywords sex discrimination
Authors Gabriella Ormai and Péter Bán
In accordance with EU law, the prohibition against gender-based discrimination (in this case: dismissal relating to pregnancy) cannot be limited to employment relationships as defined in national law: it must also apply to other types of legal relationship, where one party provides services to another party for consideration, for an open-ended period of time under the supervision of a principal.
Gabriella Ormai is a partner and
Péter Bán
Péter Bán is senior counsel with CMS Cameron McKenna LLP, www.cms-cmck.com.
ECtHR 26 November 2015, application 64846/11. (Ebrahimian), Religious Discrimination
Christiane Ebrahimian –v– France, French case
Keywords Religious Discrimination
2016/17 Court order for reinstatement not satisfied by placing employee on garden leave (LI)
Keywords dismissal, suspension
Authors Inga Klimašauskiené
An employer was ordered to reinstate an employee they had wrongly dismissed. The employer reinstated him, putting him back on the payroll, but simultaneously placed him on involuntary garden leave. The employee sought and got a second court order that this was not real reinstatement. The employer was ordered to allow the employee to return to the office and perform his habitual work there on pain of a penalty of € 100 for each day of non-compliance. The employer challenged this penalty, but without success.
Inga Klimašauskiené
Inga Klimašauskiené is a Senior Associate at GLIMSTEDT in Vilnius, http://www.glimstedt.lt.
ECJ 25 February 2016, case C-292/14. (Stroumpoulis), Insolvency
Elleniko Dimosio –v– Stefanos Stroumpoulis and six others, Greek case
Keywords insolvency
ECtHR 12 January 2016, application 61496/08. (Bărbulescu), Fundamental Rights
Bărbulescu –v– Romania, Romanian case
Keywords Fundamental Rights
Case C-531/15. Sex Discrimination
Elda Otero Ramos –v– Servizo Galego de Saúde, Instituto Nacional de la Seguridad Social, reference lodged by the Spanish Tribunal Superior de Justicia de Galicia on 8 October 2015
2016/11 Less favourable treatment over a series of fixed term contracts is sufficiently linked to amount to a 'series of similar acts' despite no continuity of employment (UK)
Keywords Fixed-term discrimination
Authors Helen Coombes
The Employment Appeal Tribunal ('EAT') held that a university lecturer's complaints of less favourable treatment over a series of fixed term contracts were sufficiently linked to amount to 'a series of similar acts' and therefore could fall within the time limit of three months for bringing a claim in the Employment Tribunal.
Helen Coombes
Helen Coombes is an Associate at Lewis Silkin LLP: www.lewissilkin.com.
2016/18 Legislation that increased the statutory retirement age violates ECHR (NL)
Keywords human rights
Authors Peter Vas Nunes
A 60-year old widow with a house but without income other than a small widow's pension has successfully challenged legislation that moved the qualification age for state pension benefits from 65 to 67. A court has found that, in her particular case, the legislation constitutes an "individual and excessive burden" within the meaning of ECtHR case law on the First Protocol to the ECHR. The government was ordered to start paying the widow state pension from age 65 despite and contrary to the wording of the law.
Peter Vas Nunes
Peter Vas Nunes is an advocaat with BarentsKrans in The Hague, www.barentskrans.nl.
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