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European Employment Law Cases European Employment Law Cases 2016 | 2 BELGIUM Court bans headscarf ban DENMARK Dismissing employee with disabled child not discriminatory UK Claimant must also show why ‘discriminatory’ practice is detrimental AUSTRIA May salary ladder be less steep at start of career? OM_EELC_2016_02.indd 1-2 25-7-2016 15:29:25 EELC Publisher List of national correspondents European Employment Law Cases (EELC) is a legal journal that is pub- Eleven International Publishing, Kanonstraat 4-IV, Country Name Website lished four times per year. Its principal aim is to publish judgments by P.O. Box 85576, 2508 CG The Hague, Austria Andreas Tinhofer, MOSATI Rechts anwälte www.mosati.at national courts in Europe that are likely to be of interest to legal prac- e-mail [email protected], website www.elevenpub.com. Belgium Chris van Olmen, Van Olmen & Wynant www.vow.be titioners in other European countries. To this end, EELC has a national Bulgaria Kalina Tchakarova, Djingov, Gouginski, Kyutchukov & Velichkov www.dgkv.com correspondent in almost every country within the EU (plus Norway), Subscriptions Croatia Dina Vlahov, Schoenherr Attorneys at Law www.schoenherr.eu who alerts the Editorial Board to such judgments within his or her own European Employment Law Cases is published quarterly. Annual sub- Cyprus George Z. Georgiou, Georgiou & Associates www.georgezgeorgiou.com jurisdiction. A case report describes the facts of the case and the main scription rates for 2016 are € 240 (print and online). A special subscrip- Czech Republic Nataša Randlová, Randl Partners www.randls.com aspects of the judgment. It also includes a Commentary by the author tion price for 2016 is available for EELA members. For more information, Denmark Mariann Norrbom, Norrbom Vinding www.norrbomvinding.com and, in many cases, comments on the case by lawyers in other jurisdic- please contact the publisher. Prices exclude VAT and postage. Finland Janne Nurminen, Roschier www.roschier.com tions. Readers are invited to submit case reports, preferably through the France Claire Toumieux, Allen & Overy www.allenovery.com national correspondent in their jurisdiction. Guidelines for authoring a Open access policy Germany Paul Schreiner, Luther Rechts anwalt gesellschaft www.luther-lawfirm.com case report are available from the Editorial Board. The names and con- Six months after the publication of the article, the author is free to pro- Greece Effie Mitsopoulou, Kyriakides Georgopoulos www.kgdi.gr tact details of the national correspondents are listed on the inside of the vide open access to the final pdf of his work. For more information, visit Hungary Gabriella Ormai, CMS Cameron McKenna www.cms-cmck.com back page. Besides case reports, EELC publishes the occasional article. www.elevenjournals.com. Eleven International Publishing assumes that Ireland Orla O’Leary, Mason Hayes & Curran www.mhc.ie the author agrees to the license which can be found on the website. Italy Caterina Rucci, Bird & Bird www.twobirds.com EELC also publishes summaries of recent judgments by the Court of Latvia Andis Burkevics, Sorainen www.sorainen.com Justice of the EU (the ECJ) that are relevant to practitioners of Euro- Subscription queries and requests for sample copies should be directed Lithuania Inga Klimašauskienė, Glimstedt www.glimstedt.lt pean employment law, as well as Advocates-Generals’ opinions and to the Publisher. Luxembourg Michel Molitor, Molitor www.molitorlegal.lu brief summaries of questions that have been referred to the ECJ for a Malta Matthew Brincat, Ganado Advocates www.ganadoadvocates.com preliminary ruling. ISSN 1877-9107 Netherlands Zef Even, SteensmaEven www.steensmaeven.com © Eleven International Publishing Norway André Istad Johansen, Advokatfirmaet Selmer www.selmer.no The full text of all editions of EELC since its launch in 2009, including an Poland Marcin Wujczyk, Ksiazek & Bigaj www.ksiazeklegal.pl index arranged by subject matter, can be accessed through the Eleven Portugal Maria da Glória Leitão, Cuatrecasas, Gonçalves Pereira www.cuatrecasas.com Journals’ website www.elevenjournals.com. Romania Andreea Suciu, S.P.R.L. Menzer & Bachmann-Noerr www.noerr.com Slovakia Gabriel Havrilla, Legal Counsels www.legalcounsels.sk Slovenia Petra Smolnikar, Schoenherr Attorneys at Law www.schoenherr.eu Editorial Board Spain Sonia Cortés, Abdón Pedrajas & Molero www.abdonpedrajas.com EELC has an Editorial Board consisting of: Sweden Lars Lövgren, MAQS Law Firm www.maqs.com United Kingdom James Davies, Lewis Silkin www.lewissilkin.com Andreea Suciu Noerr Bucharest, Romania [email protected] area of responsibility: Bulgaria, Croatia, Czech Board of Academic Editors Republic, Hungary, Latvia, Lithuania, Romania, Country Name University Slovakia, Slovenia Austria Prof. Dr. Martin E. Risak, PhD Universität Wien James Davies Lewis Silkin Belgium Prof. Dr. Marc de Vos University of Ghent London, UK Czech Republic Dr. iur. Petr Hůrka, PhD Charles University – Prague [email protected] Denmark Dr. Christian K. Clasen Copenhagen Business School area of responsibility: Denmark, Finland, Ireland, Finland Prof. Niklas Bruun University of Helsinki Norway, Sweden, UK France Prof. Jean-Philippe Lhernould Université de Nantes Paul Schreiner Luther Rechtsanwaltgesellschaft Germany Prof. Dr. Gregor Thüsing, LL.M (Harvard) Universität Bonn Köln, Germany Greece Dr. Constantin Bakopoulos Univerity of Athens [email protected] Italy Dr. Luca Calcaterra Università Suor Orsola Benincasa, Naples area of responsibility: Austria, Belgium, France, Ireland Prof. Anthony Kerr University College Dublin Germany, Luxembourg, Netherlands Lithuania Daiva Petrylaite Vilnius University Effie Mitsopoulou Kyriakides Georgopoulos Law Firm Netherlands Prof. Ruben Houweling Erasmus University, Rotterdam Athens, Greece Norway Prof. Stein Evju University of Oslo [email protected] Poland Prof. Dr. hab. Andrzej Marian Świątkowski Jagiellonian University area of responsibility: Cyprus, Greece, Italy, Malta, Slovakia Andrej Poruban Comenius University, Bratislava Portugal, Spain Spain Prof. Eduardo Gonzalez Biedma Universidad de Sevilla Peter Vas Nunes BarentsKrans Sweden Jur. Dr. Jonas Malmberg Uppsala Center for Labour Studies (general editor) The Hague, Netherlands United Kingdom Prof. Catherine Barnard University of Cambridge (Trinity College) [email protected] The Editorial Board is assisted by a professional editor, Deborah Ishihara in London. OM_EELC_2016_02.indd 3-4 25-7-2016 15:29:25 Editorial 110 2016/28 Employee compensated for employer’s refusal 81 Breaking up is hard to do to move her to another office nearer home, as advised by the occupational doctor (FR) Case Reports Delphine Levy Karcenty 82 2016/19 Reference in a termination letter to ‘retirement’ can cost the employer dearly (GE) 112 2016/29 Prohibition on dismissing union leaders, even Paul Schreiner and Dagmar Hellenkemper for reasons unrelated to union activity, is unconstitutional (RO) 85 2016/20 May employees move up the salary ladder Andreea Suciu more slowly at the start of their career? (AT) Marta J. Glowacka 116 2016/30 Members of a Board of Directors are ‘individual contractors’, not self-employed 89 2016/21 The attitude/behaviour of an employer ‘entrepreneurs’ (PL) towards an employee who partially resumes work after Marcin Wujczyk long-term incapacity can constitute harassment and discrimination (BE) 120 2016/31 Supreme Court: employer cannot dismiss Isabel Plets and Karl Goethals employee for exercising freedom of speech (SL) Nives Slemenjak 92 2016/22 Failing to offer voluntary redundancy because it triggered a right to early retirement is directly 123 2016/32 Window sticker sufficient to allow evidence discriminatory (UK) collected by surveillance camera (SP) Sarah O’Brien Sonia Cortes 95 2016/23 Are employers obliged to provide childcare 127 2016/33 Supreme Court clarifies rules on redundancy vouchers during maternity leave? (UK) selection methods (NO) Catherine Hayes Tore Lerheim and Ole Kristian Olsby 97 2016/24 Claimant required to show the ‘reason why’ 130 2016/34 Transferee has no claim against transferor for the underlying reason behind a practice was indirectly paid leave accrued before transfer (NL) discriminatory (UK) Amber Zwanenburg Anna Bond ECJ Court Watch 101 2016/25 Prohibition against displaying religious Rulings symbols breaches anti-discrimination legislation for 133 ECJ 21 January 2016, case C-515/14 (Cyprus), lack of proportionality (BE) freedom of movement Gautier Busschaert 133 ECJ 21 January 2016, case C-453/14 (Knauer), free 104 2016/26 Dismissal of an employee with a disabled movement – social security child was not discriminatory by association (DK) Mariann Norrbom 134 ECJ 25 February 2016, case C-299/14 (Garcia-Nieto), free movement – social security 106 2016/27 Employers must compensate employees separately for restricting their right to work for others, 136 ECJ 7 April 2016, case C-5/15 (Büyüktipi), legal not only after, but also during their employment (LI) expenses insurance Inga Klimašauskienė 137 ECJ 7 April 2016, case C-284/15 (ONEm), free movement – social insurance 139 ECJ 7 April 2016, case C-315/14 (Marchon 148 Case C-631/15. Fixed-term work Germany), commercial agency 148 Case C-668/15. Racial discrimination 140 ECJ (Grand Chamber) 19 April 2016, case C-441/14 (Ajos), age discrimination 149 Cases C-680/15 and C-681/15. Transfer of undertakings 143 ECJ 7 April 2016, case C-460/14 (Massar), legal insurance 149 Case C-20/16. Free movement – Tax 144 ECJ 2 June
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