ECtHR 3 September 2020, application no. 57462/19 (Mahi), Freedom of Expression

It was not contrary to Article 10 of the Charter to disciplinary transfer an Islamic teacher to another school 50 kilometres away, for sending an open letter concerning inter alia the Charlie Hebdo attacks in January 2015. His remarks were incompatible with the duty of discretion incumbent upon him as a teacher.

2020/42 Legal status of electronic forms of employment

The UK Employment Tribunals and England and Wales Court of Appeal (case [2018] EWCA Civ 2748) have ruled that any Uber driver who has the Uber App switched on, is in the territory where he/she is authorised to work, and is able and willing to accept assignments, is working for Uber under a worker contract. The UK courts disregarded some of the provisions of Uber’s driver agreement. They had been entitled to do so because the relevant provisions of the driver agreement did not reflect the reality of the bargain made between the parties. The fact that Uber interviews and recruits drivers, controls the key information, requires drivers to accept trips, sets the route, fixes the fare, imposes numerous conditions on drivers, determines remuneration, amends the driver’s terms unilaterally, and handles complaints by passengers, makes it a transportation or passenger carrier, not an information and electronic technology provider. Therefore the UK courts resolved the central issue of for whom (Uber) and under a contract with whom (Uber), drivers perform their services. Uber is a modern business phenomenon. Regardless of its special position in business, Uber is obliged to follow the rules according to which work is neither a commodity nor an online technology.

2020/42 Legal status of electronic forms of employment

The UK Employment Tribunals and England and Wales Court of Appeal (case [2018] EWCA Civ 2748) have ruled that any Uber driver who has the Uber App switched on, is in the territory where he/she is authorised to work, and is able and willing to accept assignments, is working for Uber under a worker contract. The UK courts disregarded some of the provisions of Uber’s driver agreement. They had been entitled to do so because the relevant provisions of the driver agreement did not reflect the reality of the bargain made between the parties. The fact that Uber interviews and recruits drivers, controls the key information, requires drivers to accept trips, sets the route, fixes the fare, imposes numerous conditions on drivers, determines remuneration, amends the driver’s terms unilaterally, and handles complaints by passengers, makes it a transportation or passenger carrier, not an information and electronic technology provider. Therefore the UK courts resolved the central issue of for whom (Uber) and under a contract with whom (Uber), drivers perform their services. Uber is a modern business phenomenon. Regardless of its special position in business, Uber is obliged to follow the rules according to which work is neither a commodity nor an online technology.

2020/35 The posting of workers: An EU and Slovak Republic perspective (SK)

This article discusses some of the problems with the Slovak implementation of the Posting of Workers Directive.

2020/35 The posting of workers: An EU and Slovak Republic perspective (SK)

This article discusses some of the problems with the Slovak implementation of the Posting of Workers Directive.

2020/30 Freedom of religion: a tale of two cities

Are the outcomes of the CJEU judgments on religious discrimination essentially different from the outcome of similar cases dealing with restrictions on the freedom of religion ruled by the ECtHR?

2020/30 Freedom of religion: a tale of two cities

Are the outcomes of the CJEU judgments on religious discrimination essentially different from the outcome of similar cases dealing with restrictions on the freedom of religion ruled by the ECtHR?

2020/23 Τhe Supreme Court reiterates the importance of retention of an organizational and functional link between the business factors transferred, a prerequisite in the existence of a transfer of undertaking (GR)

The Greek Supreme Court, in a case about the transfer of a business and the obligation on the transferee to continue employing the transferred employees, underlined the importance of a thorough and genuine control on all factors to be taken into consideration in order to conclude on the existence of a transfer of undertaking or not: the business transferred must retain an autonomous economic identity, in the sense that the functional link between the different factors transferred is retained, thus allowing the new entity to use them in order to exercise an economic activity identical or similar to the previous one.

2020/23 Τhe Supreme Court reiterates the importance of retention of an organizational and functional link between the business factors transferred, a prerequisite in the existence of a transfer of undertaking (GR)

The Greek Supreme Court, in a case about the transfer of a business and the obligation on the transferee to continue employing the transferred employees, underlined the importance of a thorough and genuine control on all factors to be taken into consideration in order to conclude on the existence of a transfer of undertaking or not: the business transferred must retain an autonomous economic identity, in the sense that the functional link between the different factors transferred is retained, thus allowing the new entity to use them in order to exercise an economic activity identical or similar to the previous one.

2020/22 Works council’s right to inspect remuneration lists (GE)

The Federal Labour Court (Bundesarbeitsgericht, ‘BAG’) has held that a works council must be provided with the documents necessary for carrying out its duties at any time on request. A works committee or another committee of the works council formed in accordance with the provisions of the Works Constitution Act (Betriebsverfassungsgesetz, ‘BetrVG’) is entitled to inspect the lists of gross wages. This right to inspect is not limited to anonymized gross pay lists. Data protection considerations do not dictate that the right is limited to anonymized gross payrolls. The processing of personal data associated with the right of inspection is permitted under the European General Data Protection Regulation (‘GDPR’) and the German Federal Data Protection Act (Bundesdatenschutzgesetz, ‘BDSG’).