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Case report

2012-01-01

Greece

2012/54 Economic woes justify 20% salary cut (GR)

The employer’s unilateral reduction of the employee’s salary was considered lawful and not abusive, since it was done in the context of the exercise of the employer’s managerial rights, by reason of the economic difficulties the company faced.

First Instance Court of Thessaloniki

Summary

2012-01-01

2012/54 Economic woes justify 20% salary cut (GR)

The employer’s unilateral reduction of the employee’s salary was considered lawful and not abusive, since it was done in the context of the exercise of the employer’s managerial rights, by reason of the economic difficulties the company faced.

First Instance Court of Thessaloniki

Case report

2011-12-22

Norway

2012/14: Airline catering company is capitalintensive (NO)

In a line of recent cases before the Norwegian courts, defendants with claims of transfer of undertakings against them have stressed the need for an economic legal entity to be identified, arguing that the transfer of an undertaking cannot take place where no such entity existed pretransfer. In this case, which concerned the transfer of a contract for catering services to an airline, the Supreme Court, perhaps chose not to rule on whether an economic entity had been subject to transfer - but combined this question with the issue of retention of identity, and found no transfer had taken place.

Hojesteret (Supreme Court), 2011-12-22

Summary

2011-12-22

2012/14: Airline catering company is capitalintensive (NO)

In a line of recent cases before the Norwegian courts, defendants with claims of transfer of undertakings against them have stressed the need for an economic legal entity to be identified, arguing that the transfer of an undertaking cannot take place where no such entity existed pretransfer. In this case, which concerned the transfer of a contract for catering services to an airline, the Supreme Court, perhaps chose not to rule on whether an economic entity had been subject to transfer - but combined this question with the issue of retention of identity, and found no transfer had taken place.

Hojesteret (Supreme Court), 2011-12-22

Case report

2011-12-15

Germany

2013/16 Bundesarbeitsgericht, applying Süzen, holds that only actual takeover of staff, not an offer to do so, is relevant (GE)

A security company lost its contract to a competitor. The competitor offered employment to all of the employees involved, albeit at a lower salary. Half of the employees accepted the offer and were hired by the competitor. One of the remaining employees claimed that the service provision change constituted a transfer of undertaking and that he had therefore become an employee of the competitor at his former salary level. The court found that the service provision change did not constitute a transfer of undertaking, given that the activity in question was labour-intensive and that only half of the employees involved in that activity went across to the competitor. Interestingly, the Bundesarbeitsgericht considered the fact that the competitor offered employment to all of the employees involved in the activity to be irrelevant.

Bundesarbeitsgericht (Federal Labour Court), 2011-12-15

Summary

2011-12-15

2013/16 Bundesarbeitsgericht, applying Süzen, holds that only actual takeover of staff, not an offer to do so, is relevant (GE)

A security company lost its contract to a competitor. The competitor offered employment to all of the employees involved, albeit at a lower salary. Half of the employees accepted the offer and were hired by the competitor. One of the remaining employees claimed that the service provision change constituted a transfer of undertaking and that he had therefore become an employee of the competitor at his former salary level. The court found that the service provision change did not constitute a transfer of undertaking, given that the activity in question was labour-intensive and that only half of the employees involved in that activity went across to the competitor. Interestingly, the Bundesarbeitsgericht considered the fact that the competitor offered employment to all of the employees involved in the activity to be irrelevant.

Bundesarbeitsgericht (Federal Labour Court), 2011-12-15

Case report

2011-12-07

United Kingdom

2012/12: Offshore workers can be required to take annual leave during onshore field breaks (UK)

Offshore workers in the oil and gas industry brought an action claiming that, in not being allowed to take annual leave during periods when they were rostered for offshore work, they were being denied their entitlement to annual leave under the Working Time Regulations 1998 (the “WTR”). The WTR implement the Working Time Directive 93/104/EC (now consolidated as Directive 2003/88/EC, the “WTD”). The Supreme Court rejected the employees’ argument and held that onshore field breaks could be used for statutory holiday entitlement. It also refused a request for a reference to the ECJ for a decision on the meaning of “annual leave” under the WTD.

UK Supreme Court, 2011-12-07

Summary

2011-12-07

2012/12: Offshore workers can be required to take annual leave during onshore field breaks (UK)

Offshore workers in the oil and gas industry brought an action claiming that, in not being allowed to take annual leave during periods when they were rostered for offshore work, they were being denied their entitlement to annual leave under the Working Time Regulations 1998 (the “WTR”). The WTR implement the Working Time Directive 93/104/EC (now consolidated as Directive 2003/88/EC, the “WTD”). The Supreme Court rejected the employees’ argument and held that onshore field breaks could be used for statutory holiday entitlement. It also refused a request for a reference to the ECJ for a decision on the meaning of “annual leave” under the WTD.

UK Supreme Court, 2011-12-07

Case report

2011-12-07

Denmark

2012/3: Age was not a factor (DK)

A 55-year-old temp applied for a vacant permanent position in her department. When the employer decided not to consider her for the position, the temp was convinced it was because of her age. The employer explained that the decision was based on a lack of personal qualities. The Supreme Court agreed with the employer and, accordingly, did not find that the principle of equal treatment had been breached.

Højesteret (Danish Supreme Court), 2011-12-07

Summary

2011-12-07

2012/3: Age was not a factor (DK)

A 55-year-old temp applied for a vacant permanent position in her department. When the employer decided not to consider her for the position, the temp was convinced it was because of her age. The employer explained that the decision was based on a lack of personal qualities. The Supreme Court agreed with the employer and, accordingly, did not find that the principle of equal treatment had been breached.

Højesteret (Danish Supreme Court), 2011-12-07