2017/45 No overtime premiums under collective bargaining agreements for individually agreed part-time employment (GE)

A clause in a collective bargaining agreement stipulating that overtime premiums for part time employees are only payable if their monthly working hours exceed those of a full-time employee is not discriminatory.

Case C-189/16. Social security

Do the provisions in Article 47(1)(d) of Regulation No 1408/71 mean that the insurance periods...

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.

Case C-189/16. Social security

Do the provisions in Article 47(1)(d) of Regulation No 1408/71 mean that the insurance periods...

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.

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).

2017/45 No overtime premiums under collective bargaining agreements for individually agreed part-time employment (GE)

A clause in a collective bargaining agreement stipulating that overtime premiums for part time employees are only payable if their monthly working hours exceed those of a full-time employee is not discriminatory.

2017/50 Limits on free speech that may defame an employer (CZ)

The Czech Supreme Court has given guidance on the limits to employees’ free speech. Employees must not engage in any conduct, even outside working hours, that could actually or potentially damage their employer’s business. Any criticism of an employer must be based on facts and not be misleading or defamatory. Inappropriate or unjustified criticism may lead to immediate termination of employment.

2017/39 The principle of legality applies to disciplinary sanctions (LU)

The Court of Appeal held that disciplinary sanctions are subject to the general principles of criminal law and therefore must respect the principle of legality. Consequently, the wording of any collective agreement that is used as the legal basis of a sanction must be sufficiently clear and precise to enable the employee to understand the consequences of his or her misconduct.

2017/47 Termination of employment contract for economic reasons may not be lawful if employees have been working overtime (SL)

In February 2017, a female worker was served notice of termination of her employment contract for economic reasons (odpoved pogodbe o zaposlitvi iz poslovnih razlogov). The reasons for the termination were: (i) a substantial decrease in orders, (ii) reduced realisation and (iii) reduced demand for particular products. In particular, the company had lost one of its clients in the automotive industry. The worker brought an action claiming that (i) the reason for the termination was not logical (this included challenging the arguments made in the termination letter because the business results in 2012, when the notice was served, were better than in 2011); (ii) the employer continuously requested employees to work overtime (but note that the overtime was within the statutory limits); and (iii) she had been discriminated against and the working conditions were poor in various respects. The first and second instance courts denied her claim and found the termination lawful.