Reporting period: 1 July - 30 September 2020: Report on European Labour and Social Security Law
In the third quarter of 2020, Europe did not stand still despite the ongoing corona pandemic. Numerous current developments in European labour and social security law are presented in the present third edition of the `HSI Report (en)`.
The CJEU recently issued a significant decision on the interpretation of the Temporary Agency Work Directive (Case C-681/18 - JH/KG). It concerned the question of practical relevance, under which conditions the use of temporary agency workers in a workplace is to be regarded as `temporary`. The court also made clear that transposing national law has to include provisions to safeguard the temporary character of agency work.
National holiday legislation is strongly influenced by Union law and its interpretation by the CJEU. In this respect, it is of particular importance that the German Federal Labour Court has again referred several questions in this area for a preliminary ruling to the CJEU. Specifically, the issue is whether annual leave not taken due to illness or reduced earning capacity is foresighted after a carry-over period if the employer has not ensured that the leave is taken in time (reference numbers of the German Federal Labour Court: 9 AZR 401/19 (A) and 9 AZR 245/19 (A)). A further submission concerns the consideration of holiday periods for overtime bonuses in collective agreements (reference number of the German Federal Labour Court: 10 AZR 210/19 (A)). In addition, a Belgian referral procedure offers the CJEU the opportunity to flesh out its case law on the so-called `headscarf ban` in the workplace (Case S.C.R.L.).
The ECtHR had to rule on the admissibility of criminal sanctions imposed on a trade union member for taking part in an unannounced trade union demonstration on International Women's Day in case ªenºafak v. Turkey (No. 5999/13). The Court found that the absence of prior notice did not in itself justify interference with the peaceful freedom of assembly.
In new pending cases, the ECtHR will deal, inter alia, with the admissibility of dismissal for private use of a company mobile phone (case Tomiæ v. Croatia) and questions of antidiscrimination law. In the context of four pension law proceedings, the CJEU expressly pointed out that an ongoing legal dispute may not, in principle, be influenced by a targeted retroactive amendment of the law (Avellone and Others v. Italy, Facchinetti v. Italy, Grieco v. Italy and Pellegrini v. Italy). The great importance of appropriate provisions for the participation of children with disabilities in primary education was emphasised in G.L. v. Italy.
We hope that the report will once again provide you with a comprehensive overview of the latest developments. You are very welcome to further disseminate the report and to invite colleagues to subscribe to it free of charge.