A female teacher who, due to religious beliefs, refrained from physical contact with men, refused to shake hands with male co-workers on her first day working as a substitute teacher at a new school. A male co-worker reported her behavior to the principal of the school. The principal had a meeting with the teacher to discuss equal treatment of men and women and the importance of the school setting equality standards. Following the meeting, the teacher left the workplace and did not return. The teacher claimed that the principal demanded her to engage in physical contact with the opposite gender by shaking hands with male co-workers, which was not allowed according to her religious beliefs and therefore constituted direct or indirect discrimination. The Swedish Labour Court found that the teacher could not prove that such a demand had been communicated by the principal, and consequently that there were no grounds for the teacher’s claim. Thus, the teacher’s claim was dismissed and the Court did not conclude whether or not such a requirement would have constituted discrimination.
The General Confederation of Labor (CGT) filed a claim before the National High Court, which was dismissed in July 2016, requesting to respect the right of employees to compute paid leaves for marriage, birth of a child or death of a family member from the first business day (‘dies a quo’) after the causal event.
The ruling of the Supreme Court dated on the 13th of February of 2018, gives the reason to the CGT and to the unions CCOO and UGT that adhered to the claim and the court revokes the ruling of the National High Court.
According to the new judgment of the Supreme Court, the said paid permits will begin to be counted from the first business day after the causal event, even if this happens during a public holiday. That is, if the death of a relative occurs on a Friday, the two-day permit will begin to count from the following Monday, and not starts the weekend, or if it occurs on Sunday and the following Monday is a public holiday it will begin to count from Tuesday.
The Supreme Court points out that “the rubric of the conventional precept ‘paid leaves’ shows us that permits are granted for their enjoyment in business days; on holidays it is not necessary to ask for them because they do not work”.
Additionally, the Supreme Court states that another solution could lead to the absurdity of depriving these employees of the permission, or depriving them of days of permission, in the assumptions in which the causal event happens at the beginning of several consecutive public holidays, which is contrary to the spirit of art. 37.3 of the WS.
In order to ensure a safety option in case of insolvency, companies contribute to a Security Fund that can substitute itself to the employer in case of insolvency and pay the salaries to the employees affected by the insolvency. The Supreme Court was called to issue a general decision on the period the Fund can make these payments.
The maximum period the Fund can make the payments to the employees is 3 months. However there were a number of contradictory court rulings on the timeframe for the payments. The Decision no. 16/2018 of the Supreme Court states that the Fund can make payment for a period of 3 months that should be limited to the 3 months prior to the date of the beginning of the insolvency procedure and the 3 following months after the beginning of the procedure. Payments for unpaid salaries for any other period exceeding this timeframe cannot be made by the Fund, meaning that if during the 3 months prior to the beginning of the insolvency and the 3 months after the beginning of the insolvency the employer made salary payments and was unable to make such payments outside this timeframe, the Fund cannot substitute itself.
The law stipulates that an employer does not (in principle) owe any transition payment in the event of a serious imputable act on the part of an employee (Book 7, Article 673(7), opening words and under c, of the Dutch Civil Code).
On 30 March 2018, the Supreme Court ruled that instant dismissal does not necessarily mean that serious imputable acts have been committed. The Supreme Court considered the following (paragraph 4.2):
“(…) If the Court of Appeal was of the opinion that in the case of a legally valid instant dismissal there is never any entitlement to a transition payment, this opinion is incorrect. The Court of Appeal has disregarded the fact that the establishment of the existence of a compelling reason does not mean that the dismissal is due to serious imputable acts or omissions on the part of the employee.”
In this case, the employee was instantly dismissed because he had appeared at work under the influence of alcohol several times, despite the employer’s alcohol policy. The employee argued that he could not be blamed for his alcohol addiction, or at most could only be blamed to a limited extent.
The Supreme Court referred the case to the Amsterdam Court of Appeal.
Earlier this year, in its findings of 12 January 2018, the advocate general at the Supreme Court had advised that, in principle, there should be no entitlement to a transition payment if an immediate dismissal is justified. The Supreme Court’s ruling of 30 March 2018, therefore, does not concur with this.
The Subdistrict Court of North Holland recently awarded the highest fair compensation ever: €530,000! One day after his manager resigned, the employee was informed that his position had become redundant and was immediately suspended. The Subdistrict Court ruled that the employer had breached the reinstatement obligation.
In its judgment, the Subdistrict Court of North Holland concurred with the New-Hairstyle judgment and included the consequences of the dismissal in the estimate for fair compensation:
“Furthermore, the Subdistrict Court found it plausible that the employment contract would have continued for at least another 1.5 years. (..) Because the employee had been unfairly suspended from his activities, he can no longer make a claim to the favourable tax regime. (..) If the employment contract had continued, at least one more part of the unvested stocks would have been released for vesting.”
The Subdistrict Court, therefore, estimates the fair compensation to be €530,000 gross (1.5 years x €19,290 per month (salary) + 8% holiday pay + €53,000 gross under the tax scheme + €106,000 with regard to the unvested stocks mentioned above).
Through ruling no. 8373 of 4 April 2018, Court of Cassation recently stated that the employer is entitled to rely on private investigation agencies activity.
In fact, employers are legitimate to carry out investigations, both in the case they need to verify an unlawful behavior already found out, and in the case they simply suspect that an unlawful behavior is ongoing.
Anyway, the Court underlines that the investigation activity is legitimate only if it is aimed not to ascertain the employee’s performance and how the employee has fulfilled the working obligation.
In the specific case analyzed by the Supreme Court, the employee was demanded to work also outside the company on specific working hours.
The company investigation activity was defined lawful because carried out in public places and aimed to discover whether the employee had complied with his working hours or had focused on his private activities.
On the 12 April 2018, Court of Turin rejected the appeal brought by six Foodora riders who had asked to be reinstated by the Company with full employment benefits, after the termination of their contracts because of the their protests concerning a better economic and contractual treatment.
Riders tried to demonstrate in Court that the Company had a complete control over their activity and timesheets, all typical characteristics of the classical employment relationship.
On the other hand, Foodora showed in Court its peculiar business model where riders are the core part of a Company, which relies on autonomous and flexible forms of work: in Italy, the Company enrolls riders as independent contractors. For this reason, they are free to enter the shift platform and decide when to give their specific availability.
We are still waiting for the grounds of the ruling, but the Court decision is clear: Foodora’s riders are independent contractors and not employees.
According to a final court judgment the employer was obliged to employ the employee under unmodified working conditions as „Director Delivery Communication & Media Solutions Germany and General Western Europe at management level 3”.
The employer tried to prevent the legal enforcement of this judgment by filing an action to oppose enforcement. It argued that it was impossible to employ the employee in his original role as it had been eliminated due to group-wide changes in the organisational structure.
The Federal Labour Court ruled that the employer cannot argue that it is impossible to fulfil its obligations under the final judgment by arguing that the role has been eliminated.
According to the Court a failure to employ the employee would be a violation of the employer’s obligation to assign work to the employee so that the employer has to assign another contractual role to the employee instead.
The employer intended to terminate the employment of the chairman of its works council for cause due to serious misconduct. Works council members enjoy special protection against unfair dismissal during their term as well as for one year thereafter. Their termination is only possible for good cause and with prior consent of the works council. In the case at hand the works council had refused to give its consent so that the employer applied to the labour court for it to replace the works council’s consent.
In July 2013 the parties agreed extrajudicially that the employment relationship of the works council member should end on 31 December 2015. Furthermore, it was agreed that the employee should be put on immediate paid garden leave and should receive a net severance of EUR 120,000.00. On the next day, the employee resigned as a member of the works council.
After the conclusion of the termination agreement the works council member raised a claim for his employment relationship to continue beyond the agreed termination date. He argued that the termination agreement was void because it favoured him in a prohibited manner as a member of the works council.
Under the Works Constitution Act works council members may neither be disadvantaged nor favoured because of their works council activities. Agreements that violate this provision are void.
The Federal Labour Court dismissed the works council member’s claim and held that the conclusion of a termination agreement does not generally constitute a prohibited advantage for the works council member and therefore does not violate the prohibition of preferential treatment. The Court recognised that a works council member generally has a more advantageous negotiating position in a termination discussion than a regular employee. However such more advantageous position does not constitute in favouritism but results from the mandatory special protection against dismissal under the law.
When the law provides for the communication of certain documents to the staff representatives in order to obtain their opinion on a matter, the consultation period only runs as of this communication. This is the case of the economic and social database, which is the basis for preparing the works council’s consultations. As long as it has not been made available to the works council, the consultation period does not run. The committee is no longer locked in a time window to decide. The Court of Cassation has ruled this in relation to one of the periodic consultations of the works council (the consultation on the strategic orientations), but this solution is applicable to all the consultations of this body.
It is therefore important for French-based companies to update the database regularly and to ensure that staff representatives are informed of this update.