EU Employment Law Report 4 | Q3

By Pieter De Koster, Cecilia Lahaye, Guillaume Nolens


Keeping you up-to-date on the most significant developments of employment law at the EU level

Legislative Initiatives

During the reference period, three Directives in the area of social policy which we discussed earlier (see Report for Q1 and Q2 2019) were formally promulgated.

First, the Directive on Transparent and Predictable Working Conditions ('TPWC') was published on 11 July 2019 (Directive 2019/1152 of 20 June 2019, OJ, L 186).

Second, the Directive on Whistle blower Protection ('WBP') adopted by the EU Parliament in April 2019 was formally approved by the EU Council on 7 October 2019.

Third, the Directive on Work-life Balance for parents and carers was published on 12 July 2019 (Directive 2019/1158 of 20 June 2019, OJ L 188).

Read our fourth EU Employment Law Report to understand their potential impact on corporate practice and legal HR. Download the report.

Case – law

Over the past few months, several interesting decisions were rendered by the European Court of Justice on the following Social Policy matters:

1. Discrimination
2. Posting of Employees
3. Transnational restructurings
4. Policy

Discrimination | In short

1. Employees defending or witnessing for a person protected under EU Directive 2006/54 should benefit from protection against dismissal

20 June 2019, C-404/18, Hakelbracht & others v WTG Retail BVBA (ECJ)

The ECJ ruled that where a person who purports to be discriminated based on his/her gender has launched a complaint, employees other than the person discriminated based on his/her gender should be protected as they may be disadvantaged by their employer for the support they have formally or informally given to the discriminated person.

Court judgment

2. The employer must provide reasonable accommodation for the employee with an occupational disease qualified as a 'disability' before dismissing the employee based on 'objective reasons'

11 September 2019, C-397/18, DW v Nobel Plastiques Ibérica SA (ECJ)

The Court ruled that, provided that the occupational disease meets the criteria of the concept of 'disability' (ECJ C 335/11, C-337/11, etc.), the employer must provide reasonable accommodations (Article 5 Directive 2000/78) in order to guarantee equal treatment of disabled persons. This means that employers shall take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, or to undergo training, unless such measures would impose a disproportionate burden on the employer.

Court judgment

3. Modification of working hours in the context of parental leave

18 September 2019, C-366/18, José Manuel Ortiz Mesonero v UTE Luz Madrid Centro (ECJ)

The ECJ ruled that the Directives do not apply here and that they do not contain a provision which would require Member States, in the context of a request for parental leave, to grant the employee the right to work for a fixed working time when his usual pattern of work is shift work with variable hours.

Court judgment

Posting of employees | In short

1. Restrictions on financial administrative penalties and/or fines

12 September 2019, C-64/18, C-140/18, C-146/18 and C-148/18, Maksimovic and others v Murtal (ECJ)

The ECJ justifies the existence of financial administrative penalties and/or fines under Article 56 TFEU and/or Directive 2014/67 provided for these measures are proportionate. It finds that provisions that lay down fines that vary depending on the number of employees concerned do not seem, in principle, disproportionate.

Further it states that Article 56 TFEU must be interpreted as precluding national legislation from providing for, in the event of non-compliance with obtaining administrative authorizations and keeping salary documents, fines:

• that cannot be less than a predefined amount;
• that are imposed cumulatively for each employee concerned and with no upper limit;
• supplemented by a contribution to the costs of proceedings up to 20% (in the event of rejection of the appeal against the decision imposing such fines), and
• that are converted into several years’ imprisonment, in case of non-payment.

Court judgment

Transnational restructurings | In short

1. EWC opinion cannot delay transnational restructurings

8 May 2019, SF v Inspecteur van de Belastingdienst, C-631/17

Oracle Corp. had established a European Works Council (EWC) under the UK's Transnational Information and Consultation of Employees Regulation 1999 (TICER), requiring the EWC to be informed and consulted on transnational business proposals in particular circumstances. The Company had decided to close a number of sites in Europe. The implementation of this restructuring procedure was however delayed pending receipt of the EWC's formal opinion on the plans. The EWC considered that it had insufficient information to produce this opinion and that proceeding without this formal input represented a breach of TICER.

The Employment Appeal Tribunal (EAT) disagreed, holding that neither TICER nor its underlying European Directive required organisations to postpone management decisions pending a formal opinion from EWCs. Whilst the legislation contains prescriptive information and consultation obligations which must be adhered to as applicable, it did not intend to give EWC's powers to delay and/or veto management proposals; indeed TICER's underlying Directive had made clear that the power to provide "opinions" on company proposals should not "prejudice the ability of undertakings to adapt". There was therefore no basis upon which the obligations sought by the EWC could be read into TICER.

Employment Appeal Tribunal

Policy | In short

1. Conditions of platform workers top priority for new EU Commission

In the ongoing debate about the impact of digital revolution on jobs and society, the situation of online platform workers is high on the agenda. The incoming College of Commissioners, which is now expected to start its term in office on 1 December, has made of this issue a top priority. European Commission President-elect Ursula von der Leyen has given a mandate to both Margrethe Vestager, and Nicolas Schmit to look "at ways to improve the labour conditions of platform workers".

Read our full brief in the fourth EU Employment Law Report.

2. Insights into the EU Commission's plans to strengthen Europe's social dimension

On 1 October 2019, the EU Commissioner-designate for Jobs, Nicolas Schmit, highlighted the main objectives for the next five years in his hearing in front of the Employment Committee of the EU Parliament. Here is a brief overview of the main instruments we can expect to be on the agenda of the incoming EU Executive, which is due to begin its five-year mandate on 1 December:

• The European Pillar of Social Rights: the way forward
• Fair minimum wage
• Skills Agenda
• European Labour Authority

Read our summary of these objectives in the fourth EU Employment Law Report.

Download the full Report here >