2014/14 Distinction asset-intensive/labour intensive not decisive; all Spijkers criteria relevant (NL)

The transfer of part of a business under the transfers of undertakings rules can occur without assets being transferred from one party to the other. The Dutch Supreme Court recently found such a transfer to have occurred without assessing whether the business in question was asset-reliant or labour-reliant. The other ‘Spijkers criteria’ took precedence.

2014/14 Distinction asset-intensive/labour intensive not decisive; all Spijkers criteria relevant (NL)

The transfer of part of a business under the transfers of undertakings rules can occur without assets being transferred from one party to the other. The Dutch Supreme Court recently found such a transfer to have occurred without assessing whether the business in question was asset-reliant or labour-reliant. The other ‘Spijkers criteria’ took precedence.

2014/65 Inadequate “pre-negotiation” with employee representatives can invalidate dismissal (SK)

Slovakian law requires employers to consult with their employee representatives before handing an employee a written notice of termination. Failure to follow the correct procedure can invalidate a subsequent dismissal, as this case demonstrates. The employee was offered a written notice of termination on 30 June 2010, signed by the director and co-signed by the employee representative alongside the statement: “This notice was discussed with the employee representative I.S. on 28/6/10”. The Supreme Court found that this constituted insufficient evidence that there had been a real discussion with the employee representative prior to the dismissal. This made the dismissal void.

2014/65 Inadequate “pre-negotiation” with employee representatives can invalidate dismissal (SK)

Slovakian law requires employers to consult with their employee representatives before handing an employee a written notice of termination. Failure to follow the correct procedure can invalidate a subsequent dismissal, as this case demonstrates. The employee was offered a written notice of termination on 30 June 2010, signed by the director and co-signed by the employee representative alongside the statement: “This notice was discussed with the employee representative I.S. on 28/6/10”. The Supreme Court found that this constituted insufficient evidence that there had been a real discussion with the employee representative prior to the dismissal. This made the dismissal void.

2014/32 Severance Pay is Salary (LA)

Severance compensation paid to an employee pursuant to section 112 of the Latvian Labour Law (e.g. where an employment contract is terminated on account of a headcount reduction) is covered by the concept of “work remuneration” (hereinafter “salary”) as defined in section 59 of the Labour Law, being “any other remuneration in relation to work”. This means that wrongly paid severance compensation can only be reclaimed on the basis of section 78 of the Labour Law and not on the basis of the general provisions of civil law. According to a recent Supreme Court decision, this in turn means that an employer cannot recover severance compensation paid to an employee based on a court judgment that has been enforced despite appeal and later overturned.

2014/32 Severance Pay is Salary (LA)

Severance compensation paid to an employee pursuant to section 112 of the Latvian Labour Law (e.g. where an employment contract is terminated on account of a headcount reduction) is covered by the concept of “work remuneration” (hereinafter “salary”) as defined in section 59 of the Labour Law, being “any other remuneration in relation to work”. This means that wrongly paid severance compensation can only be reclaimed on the basis of section 78 of the Labour Law and not on the basis of the general provisions of civil law. According to a recent Supreme Court decision, this in turn means that an employer cannot recover severance compensation paid to an employee based on a court judgment that has been enforced despite appeal and later overturned.

ECJ (Grand Chamber) 18 March 2014, case C-167/12 (C.D. - v - S.T.), Working time and leave, Maternity and parental leave

Ms D, an employee in the UK, entered into a surrogacy agreement to have a baby. The sperm was...

ECJ (Grand Chamber) 18 March 2014, case C-167/12 (C.D. - v - S.T.), Working time and leave, Maternity and parental leave

Ms D, an employee in the UK, entered into a surrogacy agreement to have a baby. The sperm was...

ECJ 18 March 2014 (Grand Chamber), case C-363/12 (Z - v - A Government department and the Board of management of a community school), Gender discrimination, Disability discrimination

Mr and Ms Z are fertile but because Ms Z has no uterus, she cannot support a pregnancy. In 2010...

ECJ 18 March 2014 (Grand Chamber), case C-363/12 (Z - v - A Government department and the Board of management of a community school), Gender discrimination, Disability discrimination

Mr and Ms Z are fertile but because Ms Z has no uterus, she cannot support a pregnancy. In 2010...