Employment Law International News, December 2009

Estonia off the gender hook

The European Commission has halted proceedings against Estonia after it addressed gender discrimination issues. The EC had referred Estonia to the European Court of Justice for not bringing into national law provisions under a directive which prohibits sex discrimination outside employment and bans direct and indirect discrimination on grounds of gender, as well as harassment and sexual harassment. But Estonia adopted the measures related to the directive into its Gender Equality Act, and the EC withdrew the case.

German TUPE-style ruling

The German Federal Labour Court ruled last month that an employee who had not objected to employment contract changes when he transferred from a public body to a new employer had forfeited his right to challenge the changes retrospectively – because he had signed an agreement to terminate his contract with his new employer, which subsequently went bankrupt. The claimant argued that his original contract of employment with the public body still stood.

EU ageism rise?

According to an EU poll, 58% of adults believe there has been a “strong increase in perceived discrimination based on age and disability” in their home countries. And 64% said they expect the economic downturn to lead to more ageism in the jobs market. Awareness of discrimination has risen in the UK, France, Ireland and Sweden, said the EU, but fallen in Poland and Portugal. If faced with discrimination, 55% of those surveyed said they would contact the police, 35% an equality body and 27% a trade union.

European Commission ‘en”>’Employment, Social Affairs and Equal Opportunities News

Sweden clarifies EU staff position

The Swedish government has put forward proposals on the legal rights of trade unions to take action if they suspect overseas workers employed in Sweden have poorer terms and conditions than their local counterparts. It follows a dispute about the terms and conditions of Latvian building workers brought into the country by a Latvian construction company, Laval un Partneri, in 2004.

The Swedish builders’ union wanted Laval to agree that its Latvian staff should enjoy the terms of the collective agreement that applies in Sweden’s construction industry.

Laval refused, a blockade of the building site near Stockholm ensued, and the company took legal action in the Swedish Labour Court. It referred the matter to the European Court of Justice (ECJ).

On 18 December 2008, the ECJ ruled that the right to industrial action can sometimes be justified under EU law to protect against social dumping. But the ECJ said the “exercise of that right may be subject to certain restrictions”.

The Swedish builders’ union said the ruling was “a victory”, but that Sweden needed to enact legislation that set out how national collective agreements apply to foreign companies.

Sweden’s Council on Legislation has now proposed measures that largely enact the ECJ ruling. They include the stipulation that the Swedish Work Environment Authority must provide information on Swedish collective agreements that may be applicable when posting workers to Sweden.

The measures also said that the terms of collective agreements over which trade unions take industrial action must be based on industry-wide agreements which cover specified areas, such as pay, working hours and holidays. The amendments are due to come into force on 1 April 2010.

US university is set to back down on DNA requirement for job applicants

A US university that gave itself the right to demand DNA samples from job applicants looks like it may rescind that ruling later this month.

The University of Akron, Ohio, approved a regulation in August that said: “At the discretion of the University of Akron, any applicant may be asked to submit fingerprints or DNA sample for the purpose of a federal criminal background check.”

In a letter published in the local press, university vice-principal Ted Mallo said the provision was inserted after trustees discussed the matter in August. “The discussion centred around the likelihood that future reliance on fingerprinting would diminish and using DNA tests for criminal identification purposes will likely become the more prominent technology.”

The letter said the rule’s purpose “was to secure a pre-employment criminal background check for applicants selected for employment… not to collect DNA from applicants for employment.”

But former Akron adjunct faculty member Matt Williams quit his post in October, citing the DNA regulation – believed to be the first in the US – as the reason why. He said: “It’s not enough that the university doesn’t pay us a living wage, or provide us with health insurance, but now they want to sacrifice the sanctity of our bodies.”

Akron University spokeswoman Laura Massie said the university has not yet collected DNA from applicants and is “merely reserving the right to do so”.

Andy Brantley, president of the College and University Professional Association for HR, said he hadn’t heard of any college that had a rule allowing DNA testing of new employees.

Critics have also pointed out that it may breach the US’s Genetic Information Non-discrimination Act (Gina), and the Americans with Disabilities Act.

The unversity’s trustees will meet on 16 December to consider whether to rescind the regulation.


Kodak agrees £13m racism claim settlement

Eastman Kodak has agreed to pay more than $21m (£13m) to settle race discrimination claims filed in 2004 and 2007.

The claimants accused the photographic company of discriminating against African Americans when it came to recruitment, pay and promotions.

Claims were made in class actions by Employees Committed for Justice (ECJ), an African American current and former Eastman Kodak staff pressure group, and more than 12 individuals.

Eastman Kodak said “all parties have agreed to completely resolve the issues between them and to dismiss all pending legal actions. The parties have recognised that the settlement does not suggest any wrongdoing on the part of Kodak.”

Under the deal’s terms, Kodak will establish a $21.4m settlement fund that will be used for payments to claimants as well as their legal costs. The company also agreed to “conduct an examination of its policies relating to certain employment practices and to engage outside experts who will make recommendations for improvement.”


Slovakia and Malta amend discrimination laws

Slovakia and Malta have brought domestic discrimination regulations in line with European directives.

The European Commission had expressed concern about what it saw as the lack of protection against discrimination for civil servants in Malta. It was also concerned about an apparent restriction in Maltese law on access to justice for self-employed Maltese “as they have no right to seek justice from industrial tribunals”.

Malta has now amended its Equal Treatment in Employment regulations legislation to give civil servants protection in line with the directive. It plans to amend legislation to clarify the rights the self-employed have in pursuing cases in the civil courts.

Meanwhile, Slovakia has amended its laws regarding definitions of equal treatment, the exclusion of some overseas nationals from protection against discrimination, and the obligation to make adjustments to working conditions for disabled employees.

The Commission has now closed infringement proceedings against the Slovak government.


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