National courts should strike down discriminatory legislationSeda Kücükdeveci v Swedex GmbH & Co. KG [2010] ECJ Case C-555/07 | |||
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27/01/2010
The ECJ has given a preliminary ruling concerning non-discrimination on grounds of age and of Council Directive 2000/78/EC. Under scrutiny was a German national provision regarding the calculating of an employee's notice period. The provision stipulates that all years of service prior to an employee's 25th birthday are disregarded. Ms Kücükdeveci brought a claim against her former employer Swedex GmbH & Co. KG concerning the calculation of the notice period applicable to her dismissal. Although the ruling stated that it was a legitimate aim to allow employers greater flexibility regarding the dismissal of young workers as a greater degree of occupational mobility could be expected from them, the ECJ forbade the use of discriminatory measures contrary to European Union law and specifically Council Directive 2000/78/EC. The legislation adopted by the German government was not an appropriate means of achieving a legitmate aim and was therefore invalid. The ECJ ruling cited the principle of non-discrimination on grounds of age under European Union law (Council Directive 2000/78/EC ) that established a general framework for equal treatment in employment and occupation. Under Directive 2000/78/EC any national legislation is precluded when it stipulates that periods of employment completed by an employee under 25 years of age should not be taken into account when calculating the dismissal notice period. National courts must ensure that the principle of non-discrimination on grounds of age under Directive 2000/78 is complied with. National courts should 'disapply' any national legislation contravening the European law.
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The transcript of this case follows:-
Seda Kücükdeveci v Swedex GmbH & Co. KG [2010] ECJCase C-555/07 | |||
| 2010 Judges restrict employers' use of the illegality defence against employee unfair dismissal claims - SAN LING CHINESE MEDICINE CENTRE v LIAN WEI JI - [2010] EAT UKEAT/0370/09/ZT There is a right to legal representation at a disciplinary which might result in the loss of the right to practise a profession - G, R (on the application of) v X School & Ors [2010] EWCA Civ 1 Cabin crew spending 5% of their time in the UK were considered to have worked partly at an establishment in Great Britain. - BA v Mak EAT [2010] UKEAT/0055/09/SM The 'genuine occupational requirement' rule may apply to a maximum age for employment - Wolf v Stadt Frankfurt am Main [2010] Case C-229/08 ECJ Different dress codes do not necessarily amount to sex discrimination - Dansie v. The Commissioner of Police for The Metropolis [2009] UKEAT Certain conditions must exist for the obligation to carry out a risk assessment for a pregnant worker to arise - ONeill v. Buckinghamshire County Council [2010] UKEAT 2009 An employment tribunal may decide if a compromise decision is unenforcable - Industrious Ltd v Horizon Recruitment Ltd & Anor [2009] UKEAT Registrar claiming right to refuse to officiate at civil weddings loses religious discrimination case - Ladele v London Borough of Islington [2009] EWCA Civ 1357 A philosophical belief based on science is protected by the Employment Equality (Religion or Belief) Regulations 2003 - Grainger Plc v Nicholson [2009] UKEAT/0219/09/ZT Christian counsellor who would not help same sex couples was not discriminated against - McFarlane v Relate Avon Ltd [2009] UKEAT 0106_09_3011 Under TUPE the obligation to inform always applies, even when no measures are contemplated relating to the transfer - Cable Realisations Ltd v GMB Northern [2009] UKEAT The Court of Appeal rules on Harassment and 'Oppressive and Unacceptable' behaviour Veakins v Kier Islington Ltd [2009] EWCA Civ 1288 For s4A(3) of the DDA to apply the employer must have known (or ought to have known) that the employee was disabled and that the disability would affect him in the manner described in section 4A(1) - DWP v Alam [2009] UKEAT 0242_09_0911 A discrimination case may not proceed on the mere possibility that evidence might emerge during cross examination - ABN Amro Management Services v Hogben [2009] UKEAT 0266_09_0111 In cases of discriminatory dismissal tribunals may reduce compensation if the worker would in any event have been dismissed - Chagger v Abbey National Plc & Anor [2009] EWCA Civ 1202 It is possible to claim unfair dismissal abroad even if the workplace is registered outside the UK - Diggins v Condor Marine Crewing Services Ltd [2009] EWCA Civ 1133 Autoklenz 'Subcontractors' were employees - the contractual substitution clause was just 'window dressing' - Autoclenz Ltd v Belcher & Ors [2009] EWCA Civ 1046 |
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