ECJ 20 October 2011, case C-225/10 (Perez Garcia - v - Familienkasse Nürnberg), Free movement, Social insurance

Juan Perez Garcia, José Arias Neira, Fernando Barrera Castro and José Bernal...

2011/57: Facts that constitute sexual harassment may be found outside working hours (FR)

Sexual remarks and inappropriate behaviour by an employee towards an individual who he is in contact with through his work do not fall under the scope of his private life. Such behaviour may therefore be considered as sexual harassment, which justifies a dismissal for serious misconduct, even if it occurred outside working hours and outside the workplace.

2011/57: Facts that constitute sexual harassment may be found outside working hours (FR)

Sexual remarks and inappropriate behaviour by an employee towards an individual who he is in contact with through his work do not fall under the scope of his private life. Such behaviour may therefore be considered as sexual harassment, which justifies a dismissal for serious misconduct, even if it occurred outside working hours and outside the workplace.

ECtHR 12 February 2008, (Guja – v – Moldova), Application no. 14277/04 and ECtHR 6 October 2011, (Vellutine and Michel – v – France), Application no. 32820/09, Fundamental rights, Whistleblowing, Unions

The European Court of Human Rights (ECtHR) is developing a clear jurisprudence in relation to Article 10 of the European Convention on Human Rights in the employment context. Although this right to expression by the employee - contrary to the employer’s interests - must be balanced against a duty of loyalty to the employer, the ECtHR has afforded the employee ever greater freedom of expression. Both Guja and Vellutine offer wide application to Article 10 in the context of “whistleblowing” and labour disputes.

Guja was a whistleblowing case where a civil servant in a sensitive position disclosed letters to the media in order to draw attention to corruption at the governmental level. The ECtHR disagreed with the decision of the Moldova Supreme Court but the applicability of this decision may be limited to the unique circumstances existing in Moldova, namely the weakness of the rule of law in that country.

In Vellutine, the ECtHR consider the application of free speech in the context of a dispute between a trade union and a publically elected official. The Court had previously placed limits on the language that could be used during a labour dispute (Sanchez v Spain). However, in the context of a dispute involving an elected official greater latitude was permitted. The ECtHR disagreed with the Cours de Cassation that the use of defamatory words was not protected by Article 10.

ECtHR 12 February 2008, (Guja – v – Moldova), Application no. 14277/04 and ECtHR 6 October 2011, (Vellutine and Michel – v – France), Application no. 32820/09, Fundamental rights, Whistleblowing, Unions

The European Court of Human Rights (ECtHR) is developing a clear jurisprudence in relation to Article 10 of the European Convention on Human Rights in the employment context. Although this right to expression by the employee - contrary to the employer’s interests - must be balanced against a duty of loyalty to the employer, the ECtHR has afforded the employee ever greater freedom of expression. Both Guja and Vellutine offer wide application to Article 10 in the context of “whistleblowing” and labour disputes.

Guja was a whistleblowing case where a civil servant in a sensitive position disclosed letters to the media in order to draw attention to corruption at the governmental level. The ECtHR disagreed with the decision of the Moldova Supreme Court but the applicability of this decision may be limited to the unique circumstances existing in Moldova, namely the weakness of the rule of law in that country.

In Vellutine, the ECtHR consider the application of free speech in the context of a dispute between a trade union and a publically elected official. The Court had previously placed limits on the language that could be used during a labour dispute (Sanchez v Spain). However, in the context of a dispute involving an elected official greater latitude was permitted. The ECtHR disagreed with the Cours de Cassation that the use of defamatory words was not protected by Article 10.

2012/4: When is an adjustment to accommodate a disability too expensive to be reasonable? (UK)

An employer withdrew a job offer to a disabled employee upon realising that the cost of adjustments to enable the employee to do the job would exceed £250,000 a year. The employee alleged direct disability discrimination and a failure on the part of her employer to make reasonable adjustments. The employee was unsuccessful at first instance in the Employment Tribunal (“ET”) and appealed. The Employment Appeal Tribunal (“EAT”) dismissed the appeal.

2012/4: When is an adjustment to accommodate a disability too expensive to be reasonable? (UK)

An employer withdrew a job offer to a disabled employee upon realising that the cost of adjustments to enable the employee to do the job would exceed £250,000 a year. The employee alleged direct disability discrimination and a failure on the part of her employer to make reasonable adjustments. The employee was unsuccessful at first instance in the Employment Tribunal (“ET”) and appealed. The Employment Appeal Tribunal (“EAT”) dismissed the appeal.

2012/7: German works council rules do not override lex loci labori (AT)

An employee based in Austria was employed by a German company, which dismissed him. The dismissal was valid according to Austrian law but not according to German law because the employer had not informed its works council (in Germany) adequately in advance. Did the German works council rules override Austrian employment law? Based on German case law, the Austrian Supreme Court replied in the negative.

2012/7: German works council rules do not override lex loci labori (AT)

An employee based in Austria was employed by a German company, which dismissed him. The dismissal was valid according to Austrian law but not according to German law because the employer had not informed its works council (in Germany) adequately in advance. Did the German works council rules override Austrian employment law? Based on German case law, the Austrian Supreme Court replied in the negative.

ECJ 15 September 2011, case C-155/10 (Williams and others - v - British Airways plc), Paid leave

Article 7 of Directive 2003/88/EC must be interpreted as meaning that an airline pilot is entitled, during his annual leave, not only to the maintenance of his basic salary, but also (i) to all the components intrinsically linked to the performance of the tasks which he is required to carry out under his contract of employment and in respect of which a monetary amount, included in the calculation of his total remuneration, is provided and (ii) to all the elements relating to his personal and professional status as an airline pilot.

It is for the national court to assess whether the various components comprising that worker’s total remuneration meet those criteria.