EELC Updates

Case report

2017-12-01

United Kingdom

2017/46 Supreme Court upholds right to equal survivors’ pensions for same-sex partners (UK)

The Supreme Court has ruled in favour of a man seeking to establish that, if he died, his husband should be entitled to the same survivor’s pension as a female spouse would receive in the same circumstances. The Court unanimously held that an exemption in the Equality Act 2010 allowing employers to exclude same-sex partners from pension benefits accruing before December 2005, was incompatible with EU law and should be disapplied.

Supreme Court, 2017-07-12

Case report

2017-12-01

Belgium

2017/44 Dismissal based on the ‘Bradford factor’ does not necessarily constitute discrimination (BE)

On 10 January 2017, the Labour Court of Mons ruled that in the case of a collective dismissal, an employer may use absenteeism measured by the Bradford factor as a criterion for selecting employees for redundancy, without breaching anti-discrimination law.

Cour du travail de Mons (Labour Court of Mons), 2017-01-10

Court watch

2017-12-01

ECtHR 5 September 2017 (Barbulescu), Application no. 61496/08, Privacy

In Barbulescu, the Court examined for the first time a case concerning the monitoring of an employee’s electronic communications by a private employer. The Grand Chamber decided differently from the Chamber, when it concluded that the Romanian courts, in reviewing the decision of a private employer to dismiss an employee after having monitored his electronic communications, failed to strike a fair balance between the interests at stake: namely the employee’s right to respect for his private life and correspondence, on the one hand, and his employer’s right to take measures to ensure the smooth running of the company, on the other.

European Court of Human Rights (ECtHR), 2017-09-05

Summary

2017-12-01

2017/52 Greek austerity bills do not apply to Greek citizens employed in Germany (GE)

The highest administrative court in the Netherlands has delivered a razor-sharp ruling on the intra-community service provision set out in Articles 56 and 57 of the Treaty on the Functioning of the European Union). This concerns ‘new’ EU-nationals who are still under transitional measures with regard to access to the labour markets of ‘old’ EU Member States. The judgment was preceded by a request from the Chairman to a State Councillor Advocate General to deliver his opinion on various aspects of punitive administrative law practice in the Netherlands. Both the opinion and the judgment are a welcome clarification and addition (or even correction) on the practice.

Bundesarbeitsgericht (Federal Labour Court), 2017-04-26

Summary

2017-12-01

2017/46 Supreme Court upholds right to equal survivors’ pensions for same-sex partners (UK)

The Supreme Court has ruled in favour of a man seeking to establish that, if he died, his husband should be entitled to the same survivor’s pension as a female spouse would receive in the same circumstances. The Court unanimously held that an exemption in the Equality Act 2010 allowing employers to exclude same-sex partners from pension benefits accruing before December 2005, was incompatible with EU law and should be disapplied.

Supreme Court, 2017-07-12

Summary

2017-12-01

ECtHR 5 September 2017 (Barbulescu), Application no. 61496/08, Privacy

In Barbulescu, the Court examined for the first time a case concerning the monitoring of an employee’s electronic communications by a private employer. The Grand Chamber decided differently from the Chamber, when it concluded that the Romanian courts, in reviewing the decision of a private employer to dismiss an employee after having monitored his electronic communications, failed to strike a fair balance between the interests at stake: namely the employee’s right to respect for his private life and correspondence, on the one hand, and his employer’s right to take measures to ensure the smooth running of the company, on the other.

European Court of Human Rights (ECtHR), 2017-09-05

Summary

2017-12-01

2017/44 Dismissal based on the ‘Bradford factor’ does not necessarily constitute discrimination (BE)

On 10 January 2017, the Labour Court of Mons ruled that in the case of a collective dismissal, an employer may use absenteeism measured by the Bradford factor as a criterion for selecting employees for redundancy, without breaching anti-discrimination law.

Cour du travail de Mons (Labour Court of Mons), 2017-01-10

Case report

2017-12-01

Denmark

2017/53 Transfer of bus services was a transfer of undertaking (DK)

A privately operated public bus service was transferred back to the municipality. This constituted the transfer of an undertaking even though the municipality did not buy the buses from the bus operator.

Arbejdsretten (the Danish Labour Court), 2017-01-12

Case report

2017-12-01

United Kingdom

2017/42 Asda retail employees can compare themselves to distribution centre employees in equal pay claim (UK)

Between 2008 and 2016, around 7000 Asda employees working in retail stores (who were largely women) issued equal pay claims in the Manchester Employment Tribunal (‘ET’). The Claimants argued that retail store workers carry out work of ‘equal value’ to the predominantly male workforce working in the distribution centres, meaning they were appropriate comparators for the purposes of an equal pay claim. The ET upheld their claim, even though the stores and distribution centres were run by different departments and the rates of pay set by a different method. Asda appealed to the EAT, which dismissed all grounds of appeal and upheld the ET’s decision, allowing the UK’s largest private-sector group equal pay claim to proceed.

Employment Appeal Tribunal, 2017-08-31

Case report

2017-12-01

United Kingdom

2017/41 New approach to burden of proof in discrimination claims (UK)

The Employment Appeal Tribunal (EAT) has adopted a new approach to the burden of proof in discrimination cases. Up to now, the courts have held that the claimant must, in the first instance, prove sufficient facts from which (in the absence of any other explanation) an inference of discrimination can be drawn. Once the claimant has established these facts, the burden of proof shifts to the respondent to show that he or she did not breach the provisions of the Act. The EAT has now said that courts should consider all of the evidence (both the claimant’s and the respondent’s) when making its finding of facts, in order to determine whether or not a prima facie case of discrimination has been made out. It is then open to the respondent to demonstrate that there was no discrimination. This is an important development in how the burden of proof is dealt with in discrimination cases. It clarifies that it is not only the claimant’s evidence which will be scrutinised in determining whether the burden of proof has shifted, but also the respondent’s evidence (or lack thereof).

Employment Appeal Tribunal, 2017-08-10