EELC Updates

Case report

2016-06-01

Poland

2016/30 Members of a Board of Directors are ‘individual contractors’, not self-employed ‘entrepreneurs’ (PL)

The Supreme Court in this case establishes conditions to be met in order for the member of a Board of Directors to qualify as a self-employed “entrepreneur”. In light of these conditions, Directors must be considered to have the status of “individual contractor”, obligating them to pay increased social security contributions.

Sąd Najwyższy (Supreme Court), 2015-06-17

Case report

2016-06-01

United Kingdom

2016/24 Claimant required to show the ‘reason why’ the underlying reason behind a practice was indirectly discriminatory (UK)

The Court of Appeal (‘CoA’) has held that there was no indirect discrimination where the underlying reason behind a ‘provision, criterion or practice’ (‘PCP’) operated by an employer was not discriminatory. The claim of indirect discrimination was brought by Mr Naeem, who is employed by the Prison Service as a full-time imam at HMP Bullingdon. Until 2002, the Prison Service employed only Christian chaplains full-time due to a lack of demand for chaplains of other faiths (who were employed on a sessional basis only). From 2002, it started to hire full-time Muslim as well as Christian chaplains due to an increase in the number of Muslim prisoners.The prison system’s pay scale rewards length of service and pay rises are linked to both performance and length of full-time service. Mr Naeem argued that this had a disproportionate negative effect on Muslims, as they could not have been employed for as long as Christians. The CoA rejected this claim, based on the fact that the underlying reason for the difference was the lack of demand for Muslim chaplains before 2002, and that this was not discriminatory.This case follows the 2015 CoA case of Essop v Home Office [2015] EWCA Civ 609, which was the first case to add in this extra layer to the indirect discrimination test. According to these cases, a claimant must now show not only that a particular practice particularly disadvantaged them, but also why this is the case. In both cases, appeals have been made to the Supreme Court and these are expected to be heard together later this year.

Court of Appeal, 2015-12-09

Court watch

2016-06-01

ECJ (Grand Chamber) 19 April 2016, case C-441/14 (Ajos), age discrimination

A court applying national law that is at odds with the principle of non-discrimination on grounds of age must disapply that law, even if it is unequivocal and even where the dispute is between private parties.

European Court of Justice (ECJ), 2016-04-19

Summary

2016-06-01

2016/33 Supreme Court clarifies rules on redundancy selection methods (NO)

The basic rule in Norwegian law is that an employer planning to reduce headcount must apply the rules for selecting those to be dismissed (based on seniority, qualifications, personal circumstances, etc.) to the entire workforce within the relevant legal entity. However, there are circumstances under which the employer may limit the pool of employees within which to apply those rules. In this case, the employer was justified in limiting that pool to one employee, thereby avoiding the need to make a selection.

Hojesteret (Supreme Court), 2015-12-08

Summary

2016-06-01

2016/20 May employees move up the salary ladder more slowly at the start of their career? (AT)

For the fourth time in seven years, an Austrian court has asked the ECJ for guidance on the subject of age discrimination in pay scales. In this latest case, the period required to progress from step 1 to step 2 on the pay scale was longer than the period needed to progress from step 2 to step 3 and beyond. Does that constitute age discrimination? The author argues that it does, and that the arguments advanced to justify it are not valid.

Oberster Gerichtshof (Supreme Court), 2015-09-24

Summary

2016-06-01

2016/30 Members of a Board of Directors are ‘individual contractors’, not self-employed ‘entrepreneurs’ (PL)

The Supreme Court in this case establishes conditions to be met in order for the member of a Board of Directors to qualify as a self-employed “entrepreneur”. In light of these conditions, Directors must be considered to have the status of “individual contractor”, obligating them to pay increased social security contributions.

Sąd Najwyższy (Supreme Court), 2015-06-17

Summary

2016-06-01

2016/24 Claimant required to show the ‘reason why’ the underlying reason behind a practice was indirectly discriminatory (UK)

The Court of Appeal (‘CoA’) has held that there was no indirect discrimination where the underlying reason behind a ‘provision, criterion or practice’ (‘PCP’) operated by an employer was not discriminatory. The claim of indirect discrimination was brought by Mr Naeem, who is employed by the Prison Service as a full-time imam at HMP Bullingdon. Until 2002, the Prison Service employed only Christian chaplains full-time due to a lack of demand for chaplains of other faiths (who were employed on a sessional basis only). From 2002, it started to hire full-time Muslim as well as Christian chaplains due to an increase in the number of Muslim prisoners.The prison system’s pay scale rewards length of service and pay rises are linked to both performance and length of full-time service. Mr Naeem argued that this had a disproportionate negative effect on Muslims, as they could not have been employed for as long as Christians. The CoA rejected this claim, based on the fact that the underlying reason for the difference was the lack of demand for Muslim chaplains before 2002, and that this was not discriminatory.This case follows the 2015 CoA case of Essop v Home Office [2015] EWCA Civ 609, which was the first case to add in this extra layer to the indirect discrimination test. According to these cases, a claimant must now show not only that a particular practice particularly disadvantaged them, but also why this is the case. In both cases, appeals have been made to the Supreme Court and these are expected to be heard together later this year.

Court of Appeal, 2015-12-09

Summary

2016-06-01

2016/25 Prohibition against displaying religious symbols breaches anti-discrimination legislation for lack of proportionality (BE)

A general prohibition against displaying religious, political and philosophical symbols constitutes indirect discrimination which fails to meet the proportionality requirement. In this case the court took account of the fact that it was possible for the employer to distinguish between back-office and front-office work (the claimant worked in a back office position) and also because of the absence of complaints by colleagues or clients and the absence of any attempt by the claimant to encourage other women to wear a headscarf.

Tribunal du travail francophone de Bruxelles (Labour Tribunal of Brussels), 2015-11-16

Summary

2016-06-01

ECJ (Grand Chamber) 19 April 2016, case C-441/14 (Ajos), age discrimination

A court applying national law that is at odds with the principle of non-discrimination on grounds of age must disapply that law, even if it is unequivocal and even where the dispute is between private parties.

European Court of Justice (ECJ), 2016-04-19

Case report

2016-06-01

Netherlands

2016/34 Transferee has no claim against transferor for paid leave accrued before transfer (NL)

A transferee cannot claim the value of leave accrued but not taken by transferred employees before a transfer from the transferor.

Gerechtshof Den Haag (Court of Appeal in The Hague), 2016-02-16