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ISSUE 75 page 6

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Six ECJ cases that changed the law

Whatever your views on the approaching referendum on the UK’s membership of the EU, both sides acknowledge the influence of European directives and case law from the European Court of Justice on British legislation. We take a look at the ‘Six-pack’ in the field of employment.

1. TUPE – Since the original EU ‘Acquired Rights’ directive gave rise to the UK’s 'Transfer of Undertakings (Protection of Employment)' regulations in 1981 there have been myriad decisions on this subject. The 1988 ‘Daddy’s Dance Hall’ case from Denmark confirmed that an employee’s contract could not be changed simply because of a transfer, neither could they opt out of these rights.

2. Pregnancy Discrimination – This Dutch case of 1990 involved a Ms.Dekker who had been told by her prospective employer that it would be too expensive to hire her as she was pregnant. The ECJ made it clear that treating a women unfavourably because of pregnancy or maternity leave is direct sex discrimination. The Equality Act, 2010, confirmed that no male comparator was needed to prove this.

3. Equal Pay – The UK has had equal pay laws since the 1970s but the ‘Enderby’ case from 1993 allowed a group of female speech therapists to compare themselves with male pharmacists. As there was a difference in pay the ECJ said that it was up to the employer to prove that this was not due to sex discrimination.

4. Gender reassignment discrimination – P was sacked by Cornwall County Council after informing them of an intention to undergo surgery. In 1996 the ECJ held that P had been a victim of sexual discrimination. Gender reassignment is now one of the nine protected characteristics under the Equality Act 2010.

5. Working time and on-call working – A 2003 decision on a complaint from German doctors held that being ‘on-call’ while physically present in the hospital was part of working time (see issue 25). Apart from causing major problems for the EU’s Working Time directive this allowed British trade union reps. to attend health and safety meetings in work time.

6. Holiday pay – More than one ECJ case has changed UK practice. In 2006 ‘rolled-up’ holiday pay where a worker receives nothing when actually on leave because the employer claims that it is included in wages when at work, was outlawed. In 2011 the court ruled that allowances, overtime and commission had to be taken into account and holiday pay cannot be at just the basic rate (see issues 57 and 70).

 

Irish au-pairs rescued from ‘shadow economy’
Internet cafés off the hook on copyright
The Workplace Relations Commission, a labour court in Ireland, has awarded a Spanish woman working as a family ‘au pair’ a total of €9,229 after it found that she had been paid less than the minimum wage, had received inadequate holidays and been given no written statement of her terms and conditions. The Irish Congress of Trades Unions (ICTU) supported a call from the Migrant Rights Centre Ireland (MRCI) to those employing au-pairs in their home to abide by all employment legislation. Equality officer David Joyce said ‘There is no grey area … those recruiting au pairs to work here must comply with the law and make them fully aware of their rights and entitlements’. ICTU had drawn up a code of practice which led to the Irish government ratifying the International Labour Organisation’s (ILO) Domestic Workers Convention in 2014. The UK government has refused to ratify so far. The MRCI confirmed that it had another 44 cases involving au pairs before the court.
A case from Germany has confirmed the protection that businesses, such as cafés, shops and bars, that offer free wi-fi have from prosecution for acts committed by their customers. The European Court of Justice (ECJ) was dealing with an action brought by Sony against Tobias McFadden who operates a lighting and sound system company near Munich. The Japan-based multi-national wanted him to be held responsible for a copyright infringement that occurred when a piece of music was offered for downloading via his network. The Advocate General of the court decided that, although the EU Directive on Electronic Commerce did not rule out an injunction to stop the infringement, it did not allow an order that would terminate or password-protect the Internet connection or force the provider to examine every user’s web history.




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