IR Notes

The EU Court of Justice has consolidated its case law on disability-related discrimination, where the disability affects an employee’s child. In a 2008 judgment, the Court of Justice ruled on the issue of direct discrimination ‘by association’: Sharon Coleman, an employee who was recruited by a firm of solicitors in 2001 to work as a legal secretary, gave birth in 2002 to a son, whose disability meant that he needed specialised care, which she provided as his primary carer. After a period of three years characterised by acts of harassment and vexatious measures (e.g. the employer refused to grant her the same flexibility in her working hours and the same working conditions as her colleagues), she accepted voluntary redundancy, but lodged an appeal, alleging that she had suffered unfair constructive dismissal and had been treated less favourably than other employees because she was the primary carer of a disabled child. At that time, the Court of Justice held that Directive 2000/78 cannot be interpreted “strictly, that is, as prohibiting only direct discrimination on grounds of disability and relating exclusively to disabled people”. The Court stated that “the directive […] applies not to a particular category of person” but by reference to the discrimination grounds it relates to, given that an interpretation of the directive “limiting its application only to people who are themselves disabled is liable to deprive that directive of an important element of its effectiveness and to reduce the protection which it is intended to guarantee”. The Court thus recognised the concept of direct discrimination ‘by association’, preventing the employer from seeking to justify their actions or propose ‘reasonable accommodation’.
In a further judgment pronounced on 11 September, concerning a female employee who was responsible for monitoring and supervising an underground station, this time the Court accepts the concept of ‘indirect’ discrimination ‘by association’. The case concerns an employee who asked her employer to appoint her, permanently, to a position with fixed working hours, even if it was one requiring a lower level of qualification, to enable her to care for her minor child, who has extensive and comprehensive needs arising from disability and must follow a care programme at a fixed time in the afternoon. The employer refused her requests but did provide her with some accommodation in respect of her working conditions on a provisional basis, as compared to other station operators, who are subject to alternating and rotating shifts. The employee alleges that she was the victim of discrimination resulting from the application of a rule governing working hours at the company. Despite being apparently neutral, this rule did not take account of her special needs (hence the use of the term ‘indirect’ discrimination). In contrast to a situation involving direct discrimination, in the event of indirect discrimination, the employer is entitled to demonstrate a legitimate aim in order to claim exemption, or make ‘reasonable accommodation’. Relying on the United Nations Convention on the Rights of Persons with Disabilities, concluded on 13 December 2006, the Court holds that the employee “must be able to provide, to his or her child who has a disability, the assistance that that child requires, which implies an obligation, on the employer, to adapt the working conditions of that employee”. A national court to which a case of this nature is referred must however check “that that accommodation does not impose an unreasonable burden on that employer” – which is questionable in light of the Court’s case law on reasonable accommodation.

Reform of public procurement : On 9 September, within the framework of the European Commission’s revision of the legal frameworks applicable to EU public procurement contracts, which is scheduled for the first half of 2026, MEPs passed a resolution on public procurement. They take up one of the findings reached by the European Labour Authority (ELA): the preponderance of the lowest‑price criterion “can exacerbate the occurrence of undeclared work and may undermine service or product quality, sustainability and social standards”, particularly in labour‑intensive sectors where staff costs dominate. MEPS recognise “the importance of strengthening the ability of contracting authorities to give greater weight to social and sustainability criteria, including environmental and climate-related considerations”. They point out that the Court of Justice allows contracting authorities “to include requirements based on national labour law in procurement documentation, such as binding collective agreements, minimum employment standards, equal pay provisions, and other relevant social criteria”. They call on “the Commission to develop guidance and a legal framework” that will allow “contracting authorities – within their own discretion – to apply such criteria without facing disproportionate legal risks”. The UNI Europa federation’s view is that this resolution “gives a clear mandate to the European Commission to link the awarding of public contracts to respect for collective agreements”, which represents a core demand of the trade union movement (see press release). However, the European Public Service Union emphasises that “the downside of the report is that there is not a strong call for mandatory criteria for sustainable public procurement”: each authority will be left free to decide whether or not to apply these criteria, and to continue opting for the lowest price (see press release).

Quality traineeships : On 10 September, the European Parliament’s Committee on Employment and Social Affairs adopted a number of compromise amendments to the draft report on the proposal for a directive improving the working conditions of trainees, as put forward in February, by MEP Alicia Homs Ginel (S&D). The amended report defines a ‘traineeship’ as a “limited period of entry-level work aiming to provide practical and professional skills through significant learning and training to facilitate the transition from education to a standard employment relationship or access to a profession”. To ensure that there will be a proper training component and decent working conditions, the report emphasises that a written contract must be handed over, before the traineeship commences, setting out its duration, its pay, the learning objectives agreed and the arrangements for mentorship and regular evaluation. The report is expected to be adopted at a plenary session on 23 September, which will enable the Danish presidency of the EU to launch negotiations between the Commission, the Council and Parliament (the trilogue) with a view to adopting the directive.

Quality jobs : On 10 September, the President of the European Commission, Ursula von der Leyen, made a brief announcement to MEPs concerning a Quality Jobs Act, with very vague outlines. In her State of the Union Address, she was in all likelihood referring to the Quality Jobs Roadmap, whose adoption has already been announced for the end of the year. The terms used appear to confirm that it will contain a legislative component, with proposals for a directive, i.e. with binding rights. The European Trade Union Confederation (ETUC) welcomed the announcement of a legislative initiative on quality jobs but also expressed regret that this followed a nine-month wait since the start of President von der Leyen’s second term, “a period during which a raft of deregulation measures has been proposed”. In its press release, the ETUC sets out its expectations of this initiative (directives on telework and the right to disconnect, algorithmic management, a just transition, etc.). In her speech at the opening of the Porto Social Summit, on 18 September, the European Commission’s Vice-President, Roxana Mînzatu, confirmed that “at the heart of that roadmap will be a Quality Jobs Act” and set out three goals: 1/ to uphold and strengthen labour rights, so that every worker enjoys “fair pay, safe conditions and dignity at work”. 2/ to harness the digital revolution “while guarding against its risks: of job insecurity and weaker protections”. 3/ to prepare for change, by helping “workers and employers alike [to] navigate transitions”.

Telework and the right to disconnect : Following the European social partners’ failure, in November 2023, to reach an agreement on telework and the right to disconnect (see IR Notes 219), the European Commission relaunched a first-stage consultation of social partners in April. On 25 July, it launched the second-phase consultation, with a very comprehensive document setting out the various instruments that could be adopted. Responses are expected by 6 October. The Commission will then be free to put forward a proposal for a directive, probably accompanied by recommendations to Member States.

Labour market reforms : On 3 September, the government convened a meeting of social partners but failed to reach a tripartite agreement on its main proposed reforms. However, it abandoned some of these measures, such as proposed changes to collective bargaining rules, and altered some of its plans, such as adapting Sunday working hours in the retail sector. The plan now is to increase Sunday working hours from four to a maximum of eight hours, subject to a sectoral collective agreement (CCT) or a cross-industry agreement being reached (see press release). OGBL, the main trade union confederation, is pleased about these climb-downs, but expresses concern at “a paradigm shift” that calls into question “the tripartite social model based on equal negotiations in search of compromise” (see press release). The employers’ organisation UEL acknowledges that “total convergence couldn’t be achieved” at this meeting, but nevertheless views the ongoing discussions regarding possible measures to improve the legal framework governing the organisation of working time as a positive sign (see press release).

Due diligence : On 18 September, the Paris court issued an order requiring the oil company TotalEnergies to disclose a number of key internal documents relating to plans for oil extraction at Tilenga in Uganda and construction of a crossborder pipeline (EACOP) to pump crude oil to the port of Tanga in Tanzania. By rejecting the confidentiality claims filed by TotalEnergies, which had submitted only extracts from certain reports and studies used in its defence, the court specified for the first time in a due diligence case that claimants are entitled to ask the defendant’s parent company directly to release evidence, without having to communicate via its subsidiaries. In addition, research reports produced by external consultancy firms must be passed on to claimants where the company relies on them for its defence. This is therefore an important decision made by this court, which is specialised in due diligence compliance, as it establishes that a company in sole possession of evidence of wrongdoing has a legal responsibility to release this.

Information confidentiality : On 20 February 2025, the management of the Air Liquide group and trade union representatives on its European Works Council signed an amendment to the European Works Council agreement of 9 November 2023, amending the provisions covering confidential information. This confidentiality obligation now “also applies to the members of the Bureau vis-à-vis the elected members of the European Works Council”. The signatories acknowledge that “in certain cases, the sensitive and confidential nature of the information to be sent to the European Works Council is not compatible with informing the elected representatives 15 days before the date of the meeting”, as provided for by the EWC agreement. In this case, “in agreement with the secretary of the European Works Council, sensitive and confidential information likely to be of interest to third parties and/or to have major internal or external repercussions may be communicated to the elected representatives on the day of the meeting”. This provision covers for example “information likely to have an impact on the markets or projects, the scale or nature of which justifies maintaining the strictest confidentiality.” If the European Works Council secretary does not accept this arrangement, the signatories agree that “documents and presentations containing sensitive and confidential information” will be sent “to the members of the Bureau only, within 7 days from the date of the Meeting” of the EWC. These documents “may be presented to the other members of the European Works Council during the preparatory meeting, before the plenary or the extended Board meeting. The confidential nature of those documents must be complied with.”

Boosting labour force participation : On 16 September, the European Commission published its annual report on Employment and Social Developments in Europe, which deals with the issue of labour force participation among under-represented groups, such as women, older persons, migrants and persons with disabilities. Around 51 million people currently find themselves outside the EU labour market, according to the report. Facilitating access to the labour market for under-represented groups would help to reach the EU’s 2030 target of a 78% employment rate (the current figure is 75.8%). The report contains a chapter on measures implemented with a view to improving access to the labour market for these groups.

Risks posed by the 28th regime : In her State of the Union address on 10 September, the President of the European Commission confirmed that a “28th regime” was under preparation, with the aim of promoting ‘innovative’ companies, by allowing them to benefit from a simplified commercial, fiscal and social framework. In a policy brief, the European Trade Union Institute (ETUI) warns of the risks inherent in creating a legal framework of this nature. The authors cite the failed attempts previously made to create a status of this kind, the active lobbying undertaken by EU-Inc.org – the European organisation representing innovative companies – and the ways in which European company (SE) status has been used to circumvent existing rights. They conclude by setting out a series of safeguards that should accompany the creation of this 28th regime, such as guarantees ensuring that workers’ participation cannot be frozen or evaded.