Here we will summarise five rulings delivered in the past two months on working time, posting of workers and dismissal of protected individuals (pregnant women and disabled people).

Lorry drivers cannot take their long rest period in the vehicle’s cabin. The EU Court of Justice has delivered a ruling in a case concerning a transport company that had challenged a fine imposed on it because one of its drivers had spent his weekly rest period in his vehicle (CJEU, 20 December 2017, case C-102/16, Vaditrans). Article 8, paragraph 6, of regulation n° 561/2006 of 15 March 2006 provides that in any two consecutive weeks, a driver must take either at least two “regular” weekly rest periods, or one regular weekly rest period and one reduced weekly rest period lasting at least twenty-four hours. paragraph 8, for its part, states that, “where a driver chooses to do so, daily rest periods and reduced weekly rest periods away from base may be taken in a vehicle, as long as it has suitable sleeping facilities for each driver and the vehicle is stationary”. The issue to be decided was that of whether “regular” weekly rest periods can be taken inside the vehicle. The Court rightly points out that the purpose of the Directive is to “improve drivers’ working conditions and road safety”. While recognising the progress made in terms of cabin comfort, the Court takes the view that a lorry’s cabin “does not appear to constitute an appropriate resting place for rest periods longer than daily rest periods and reduced weekly rest periods. Drivers should be able to spend their regular weekly rest periods in a place which offers them adequate and suitable accommodation”.

Possibility of dismissing an employee who is absent from work due to sickness related to his disability. Spanish legislation allows employers to dismiss an employee whose accumulated absences, even if justified, equate to 20% of working days over two consecutive months when the total period of absence over the previous twelve months reaches 5% of working days or 25% over four non-consecutive months within a twelve-month period. An employer dismissed an employee who was regularly absent, but whose absences were due to sickness related to his disability. The employee therefore challenged the dismissal which he deemed discriminatory. The Court of Justice, in a ruling rendered on January 18th, states that directive 2000/78 establishing a general framework for equal treatment in employment and occupation precludes this national law unless it pursues the legitimate aim of combatting absenteeism. It is then to the national court to ascertain if the national law does not go beyond what is necessary to achieve this objective. (Case. C-270/16, Ruiz Conejero).

Fraudulent social security certificates for posted worker can be now ruled out. On 6 February 2018, the CJEU pronounced a judgment, related to a Belgian case, on the right for an hosting country to re-classify an E 101 form for foreign posted workers, if social fraud is suspected. This E 101 certificate provides proof, in the host country, of their affiliation to the social security scheme of their country of origin. In this case (Case C-359/16, Ömer Altun), a Belgian construction company was sentenced by the Antwerp Court of Appeal for subcontracting work to Bulgarian companies whose workers, sent to Belgium as posted workers, were covered by fraudulent social security certificates. An investigation conducted in Bulgaria, ordered by a Belgian magistrate, revealed that the Bulgarian companies did not carry out any significant activity in this country, and the Bulgarian official authorities responsible for issuing social security certificates had not provided a satisfactory answer to Belgian authorities concerns. Following an action for annulment launched by the construction company, the Belgian Hight Court asked the CJEU if it was possible, therefore, to dismiss such a certificate when the facts submitted to their assessment enabled them to find that the certificate was fraudulently issued. The CJEU recalled in its ruling that there is a principle of loyal cooperation in the EU, which also implies mutual trust: the issuing authorities undertake to make a correct assessment of the relevant facts and to guarantee the accuracy of the entries in the certificate, and in exchange, the destination authority respects the presumption of regularity that arises therefrom. However, the Bulgarian authorities failed to respond in an adequate manner to the Belgian doubts, which allows the Belgian court to dismiss the fraudulent certificates and to held liable on the basis of the applicable national law persons suspected of having used posted workers under the guise of fraudulently obtained certificates.

Stand-by time and working time. In a ruling Case C-518/15 (Matzak), handed down on 21 February by the Court of Justice of the European Union, judges clarified that stand-by time which a worker (in this case a firefighter) is required to spend at home with the duty to respond to calls from his employer within eight minutes – which very significantly restricts the opportunities to carry out other activities – must be regarded as ‘working time’. For the CJEU, when a worker is on stand-by duty and is available within constraints that mean the worker is constantly contactable, but without actually having to remain physically present at work and can devote himself/herself to personal and social interests, then only the time spent providing services should be considered as ‘working time’. In this case the situation was different. The worker had to respond to calls within eight minutes, thus significantly restricting the possibility of opportunities for other activities and as such this worker’s stand-by time should be regarded as ‘working time’.

Protection for pregnant women and collective redundancy. In a ruling Case C-103/16 (J Porras Guisado), handed down on 22 February by the Court of Justice of the European Union, judges affirmed that pregnant women could be dismissed as part of a collective redundancy and in such cases the employer must provide the worker in question with the grounds justifying the dismissal as well as the economic assessment criteria that were used to identify which workers were to be dismissed. The question was asked because a Spanish court had turned to the CJEU to rule on whether dismissal on economic grounds was always ‘an exceptional case not connected with the state of being pregnant’, and which authorizes the dismissal of a female worker ‘during the period from the beginning of pregnancy to the end of maternity leave,’ which would otherwise be prohibited under Directive 92/85. However, the employer ‘only has to provide the reasons justifying the collective redundancy and as long as the employer informs of the objective criteria chosen to identify the workers to be made redundant.’ In addition, this Directive does not require the Member States to allow for priority treatment of females who are pregnant, who have just having given birth, or who are breastfeeding, in terms of maintaining or reclassifying job positions.