2014/42 Cross-border transfers of undertakings, focussing on Germany, UK and the Netherlands (Article)

Undertakings are increasingly being transferred to foreign companies. Neither the Transfer of Undertaking Directive 2001/23/EC (the ‘Directive’) nor, to my knowledge, Member States’ regulations stipulate how to apply labour law provisions to a transfer between Member States. A crucial question is which national law applies. Transposition of a directive by a Member State does not in itself lead to uniform legislation within the EU. As long as the aim of a directive is achieved, the Member States may implement the directive in the way that best suits their legal system. In addition, Directive 2001/23/EC is a minimum harmonisation directive. Article 8 allows Member States to grant employees rights that are more favourable than the directive requires. As a result of choices made by Member States, domestic laws on transfers of undertakings vary across the EU. This article focuses on the issue of the conflict of law when dealing with a cross-border transfer. It also examines, where appropriate, the jurisdiction of the courts.

2014/42 Cross-border transfers of undertakings, focussing on Germany, UK and the Netherlands (Article)

Undertakings are increasingly being transferred to foreign companies. Neither the Transfer of Undertaking Directive 2001/23/EC (the ‘Directive’) nor, to my knowledge, Member States’ regulations stipulate how to apply labour law provisions to a transfer between Member States. A crucial question is which national law applies. Transposition of a directive by a Member State does not in itself lead to uniform legislation within the EU. As long as the aim of a directive is achieved, the Member States may implement the directive in the way that best suits their legal system. In addition, Directive 2001/23/EC is a minimum harmonisation directive. Article 8 allows Member States to grant employees rights that are more favourable than the directive requires. As a result of choices made by Member States, domestic laws on transfers of undertakings vary across the EU. This article focuses on the issue of the conflict of law when dealing with a cross-border transfer. It also examines, where appropriate, the jurisdiction of the courts.

2014/67 New Whistleblowing Law in Ireland – the Protected Disclosures Act 2014 (IR)

The Protected Disclosures Act 2014, enacted in July 2014, introduces a new regime in Ireland protecting whistleblowers in the workplace. The Act mirrors a trend across several European jurisdictions to introduce legislation to protect whistleblowers. The Act seeks to protect workers from penalisation who make disclosures of wrongdoing and matters of public interest which the Act calls “protected disclosures”. The Organisation for Economic Co-operation and Development (OECD) has advised the Irish government that the Act is the “strongest whistleblower legislation in Europe.”

The Act is extensive, protecting all workers in both the public and private sectors, including contractors, trainees and agency staff. Workers who are penalised for raising concerns of potential wrongdoing in the workplace can avail of significant protections.

2014/6 Equal pay for "temps" and the exemption from directive 2008/104 for publicly supported integration and (re-)training programs (AT)

For public or publicly supported vocational training, integration or retraining programs to be excluded from the scope of Directive 2008/104 on temporary agency work and national law transposing it, they must provide specific strategies and measures for workers who are difficult to place.

2014/6 Equal pay for "temps" and the exemption from directive 2008/104 for publicly supported integration and (re-)training programs (AT)

For public or publicly supported vocational training, integration or retraining programs to be excluded from the scope of Directive 2008/104 on temporary agency work and national law transposing it, they must provide specific strategies and measures for workers who are difficult to place.

2014/4 Dismissal of HIV-positive employee, part 2 (GE)

The Bundesarbeitsgericht (‘BAG’) has overturned the Court of Appeal’s decision reported in EELC 2012/18. An HIV-infection without symptoms constitutes a disability as defined in the German Equal Treatment Act. Therefore, the dismissal of an HIV-positive employee can lead to a successful claim for damages based on disability discrimination.

2014/4 Dismissal of HIV-positive employee, part 2 (GE)

The Bundesarbeitsgericht (‘BAG’) has overturned the Court of Appeal’s decision reported in EELC 2012/18. An HIV-infection without symptoms constitutes a disability as defined in the German Equal Treatment Act. Therefore, the dismissal of an HIV-positive employee can lead to a successful claim for damages based on disability discrimination.

2014/16 “Temps” entitled to same benefits as user undertaking’s own staff, even where not derived from statute (CR)

Croatia has gold-plated its transposition of Directive 2004/108, entitling temporary agency workers to all benefits accorded to the user undertaking’s own staff, rather than merely to the same pay, working time and holidays. The judgment reported here has broader relevance and must be seen in the context of a pending overhaul of Croatian law on temporary agency work that aims to increase labour flexibility.

2014/16 “Temps” entitled to same benefits as user undertaking’s own staff, even where not derived from statute (CR)

Croatia has gold-plated its transposition of Directive 2004/108, entitling temporary agency workers to all benefits accorded to the user undertaking’s own staff, rather than merely to the same pay, working time and holidays. The judgment reported here has broader relevance and must be seen in the context of a pending overhaul of Croatian law on temporary agency work that aims to increase labour flexibility.

ECJ 12 December 2013, case C-50/13 (Rocco Papalia - v - Commune di Aosta), Fixed-term work

Mr Papalia was employed by the municipality of Aosta from 1983 until 2012 on the basis of...