2021/41 Home-based stand-by time may constitute working time in accordance with EU law, but paid differently by virtue of national law (BE)

Building upon the ECJ case law qualifying stand-by time with significant availability obligations of volunteer firefighters as working time, the Belgian Court of Cassation has upheld a system of compensation by which stand-by time pays less than regular working time.

2021/37 Employer loses discrimination claim after trying to reduce gender pay gap (UK)

An Employment Tribunal (ET) decision involving an advertising agency has highlighted the dangers for employers of taking an overly aggressive approach to reducing gender pay gaps. It also provides a reminder that all discrimination is unlawful, even where the victims are from a historically privileged group.

ECJ 10 February 2022, case C-485/20 (HR Rail), Disability Discrimination

Employee – v – HR Rail SA, Belgian case

2021/37 Employer loses discrimination claim after trying to reduce gender pay gap (UK)

An Employment Tribunal (ET) decision involving an advertising agency has highlighted the dangers for employers of taking an overly aggressive approach to reducing gender pay gaps. It also provides a reminder that all discrimination is unlawful, even where the victims are from a historically privileged group.

ECJ 10 February 2022, case C-485/20 (HR Rail), Disability Discrimination

Employee – v – HR Rail SA, Belgian case

2021/40 School director and loss of right to leave due to non-fulfilment of duties (RO)

The claimant in the case at hand was acting as the director of a public school, and it was her task to schedule the annual leave of all school teachers, to submit the annual appointments made within the deadlines prescribed, including her own right to annual leave, as well as the requests for its granting. The Dolj Tribunal (the ‘Court’) established that the former director did not make any leave appointments for herself or for the other school teachers during her mandate as school director, nor did she file any requests to take her annual leave, although she acknowledged she took a small number of days from her annual leave entitlement during the relevant period. As no evidence was provided to the Court in respect of the performance of tasks concerning the scheduling of annual leave, the request of the former director to receive compensation for the untaken annual leave was rejected. The Court applied the findings of ECJ Case C-619/16 (Sebastian W. Kreuziger – v – Land Berlin) and the conditions required for the loss of the right to annual leave or for its compensation to apply.

Covid - Green Pass to access the workplace

2021/40 School director and loss of right to leave due to non-fulfilment of duties (RO)

The claimant in the case at hand was acting as the director of a public school, and it was her task to schedule the annual leave of all school teachers, to submit the annual appointments made within the deadlines prescribed, including her own right to annual leave, as well as the requests for its granting. The Dolj Tribunal (the ‘Court’) established that the former director did not make any leave appointments for herself or for the other school teachers during her mandate as school director, nor did she file any requests to take her annual leave, although she acknowledged she took a small number of days from her annual leave entitlement during the relevant period. As no evidence was provided to the Court in respect of the performance of tasks concerning the scheduling of annual leave, the request of the former director to receive compensation for the untaken annual leave was rejected. The Court applied the findings of ECJ Case C-619/16 (Sebastian W. Kreuziger – v – Land Berlin) and the conditions required for the loss of the right to annual leave or for its compensation to apply.

2021/39 Lapse of the right to paid annual leave: how does Max Planck apply to a manager? (NL)

The Arnhem Court of Appeal has examined whether an employee was reasonably able to take leave, applying the ECJ’s Max Planck and Kreuziger judgments. According to the Court, the employer did not violate its obligation to inform the employee regarding the lapse of the right to paid annual leave. The Court stated that the employee was reasonably able to take leave, despite being incapacitated for work due to sickness. The Court ruled that the employee was not entitled to an allowance in lieu of untaken paid annual leave, as the right to such leave had lapsed.

ECJ 10 February 2022, case C-219/20 (Bezirkshauptmannschaft Hartberg-Fürstenfeld), Posting of Workers and Expatriates

LM – v – Bezirkshauptmannschaft Hartberg-Fürstenfeld, Austrian case