German Church's Religious Occupational Requirement Subject to Judicial Scrutiny

Precedential Decision by Judiciary or Regulatory Agency

On April 17, 2018, the European Court of Justice (CJEU) held that German laws permitting religious organizations to determine whether requiring employees to follow a certain religion was a legitimate occupational requirement breached EU law. The CJEU said there must be effective judicial review to determine if religion was a justifiable occupational requirement, taking into account the ethos of the organization, the nature of the activity, and the circumstances in which it is carried out. The CJEU further held that where it is not possible to interpret national law in line with this EU law, a national court may have to disapply the inconsistent provision of national law.

Commercial Agents Entitled to Compensation Even When Termination Occurs During the Contractual Trial Period

Precedential Decision by Judiciary or Regulatory Agency

On April 19, 2018, the CJEU determined that commercial agents are entitled to payments when a termination occurs within the contractual trial period. Such payments can total three or four times the annual profit generated by the commercial agent. Across the EU, Council Directive 86/653/EEC imposes certain obligations on, and provides certain rights to, commercial agents and their principals. The Directive imposes onerous obligations on businesses, which cannot be overruled by contract, regarding payments on termination of commercial agency arrangements.

Traveling to Work on the Employer’s Dime

Precedential Decision by Judiciary or Regulatory Agency

The Court of Justice of the European Free Trade Association (the EFTA Court) has held that work-related travel time to or from a location other than a worker’s normal workplace outside normal working hours constitutes “working time.” The decision is consistent with the Working Time Directive, which applies across the EU and, as a result, travel time will be considered in calculating average working hours and minimum rest breaks. While the CJEU has only applied this standard to peripatetic workers (employees without a regular workplace) and the decision is only binding on countries in the European Economic Area (Iceland, Lichtenstein, and Norway), it nonetheless carries considerable weight.

Failure to Grant Transgender Woman Pension Rights Is Discriminatory

Precedential Decision by Judiciary or Regulatory Agency

On June 26, 2018, the CJEU determined that refusal of the state pension to a transgender woman amounted to direct sex discrimination. The individual, MB, is a transgender woman who, wished to remain married to her wife but UK law at the time prohibited same-sex marriages, and therefore, did not obtain full legal recognition of her gender change. The state pension age is 60 for women and 65 for men, but MB refused state pension at 60 unless she had her marriage annulled and obtained legal recognition of her gender. In finding this requirement to be discriminatory, the CJEU showed its progressive stance on gender identity based discrimination.

Fixed-Term Workers Given Lower Termination Payments

Precedential Decision by Judiciary or Regulatory Agency

On June 5, 2018, the CJEU held that a Spanish law entitling fixed-term workers to lower termination payments than permanent workers did not breach the EU Fixed-Term Work Directive. The law entitles fixed-term workers whose employment was terminated at the end of the fixed term to 12 days’ pay per year of service compared to the 20 days’ pay given to permanent staff. The CJEU found that permanent and fixed-term workers were comparable, but that the difference in treatment could be objectively justified and, therefore, lawful. The decision is based on a permanent employee’s legitimate expectation of stable employment.