Judgement of the European Court of Human Rights of 12-01-2016 - Dismissal – Online conversations during working hours

In this judgement, the European Court of Human Rights (ECHR) considered that the dismissal of an employee was lawful, following the employer having ascertained that the employee was not fulfilling his duties during working hours, by viewing the said employee's private on-line conversations.

When analyzing the balance between the employees' privacy right and the employers' interests, the ECHR underlined that, in the case under review, the employer's access to private conversations did not go beyond viewing the employee’s chats on Yahoo, which, according to the mentioned employee, had previously been used to advise clients. Hence, the ECHR established that when accessing the employee's Yahoo chat, the employer acted proportionately and within his disciplinary powers, taking into account that the employer legitimately expected the concerned information to be of professional and not personal nature.

Further, in the ECHR's opinion, “it is not unreasonable for an employer to want to verify that the employees are completing their professional tasks during working hours”. Thus, the ECHR concluded that the above mentioned monitoring of the employee's private on-line conversations had been conducted in a confined manner and did not constitute a breach of article 8 of the European Convention of Human Rights. Given these circumstances, the ECHR upheld the ruling of the domestic courts, which had previously judged the dismissal lawful.

Judgement of the European Court of Justice of 18-01-2016 – Collective redundancy – Concepts of “workers normally employed”, “redundancy” and “terminations of employment contracts that may be assimilated to redundancies”

Following a request for a preliminary ruling submitted by a Spanish court, the European Court of Justice (ECJ) clarified certain concepts within the meaning given in the Collective Redundancies European Directive.

The ECJ ruled that, within the meaning of the Directive, workers employed under a fixed term contract or a contract concluded for a specific task must be regarded within the scope of the workers ‘normally’ employed at the concerned establishment, and must be considered for the minimum number which establishes whether there is a “collective redundancy”.

The ECJ went on to state that, in order to establish whether there is a ‘collective redundancy’, within the meaning of the Directive, the condition that ‘there [be] at least five redundancies’ must be interpreted as relating not to terminations of employment contracts that may be assimilated to redundancies but only to stricto sensu redundancies.

Lastly, the ECJ emphasised the fact that if an employer — unilaterally and to the detriment of the employee — undertakes significant changes to essential elements of the employment contract for reasons not related to the individual employee concerned, such changes fall within the definition of ‘redundancy’ for the purposes of the directive.

Judgement of the Porto Court of Appeal of 30-11-2015 – Concept of Remuneration – Overtime, Special Pay, Supplement for Unsociable Working Hours 

In the present case, the Court of Appeal examined the legal concept of remuneration, emphasising that it comprises the various amounts that the employer is obliged to pay the employee ordinarily and at given intervals, in return for the work that the latter performs.

Moreover, the Court stated that only payments which have been received in every monthly period of work over the course of the year in question should be considered as payments of an ordinary and periodic nature (for the purposes of untaken holidays pay, vacation allowance and Christmas allowance).

Under these terms and in the case under review, the amounts paid to an employee in return for night work, overtime, special pay and supplement for unsociable working hours between 2000 and 2013 are remuneratory in nature – with the exception of those cases in which the payment of variable amounts did not occur in at least eleven months during the course of one year.

The Court also underscored the fact that “travel allowances” for the purposes of offsetting the employees' expenses involved in the use of his own means of transport or making his way on foot in order to perform work for the employer are not remuneratory in nature nor should they be considered for the purposes of calculating untaken holidays pay, vacation allowance and Christmas allowance.