Reporting period: 1 July - 30 September 2021: Report on European Labour and Social Security Law
In the seventh edition of the HSI Report, which covers the reporting period from July to September 2021, the overview of the proceedings before the CJEU and ECtHR offers the usual broad panorama of topics. The most eagerly awaited decision was very likely the one
answering the question if employers may ban the wearing of `Islamic headscarves` (hijabs) in the workplace. Quite a few observers thought they had identified a fundamental contradiction between the European and German fundamental rights systems on this issue. In its recent decision on the employer's ban on the wearing of visible signs of religious conviction (joined cases C-804/18 and C-341/19 - WABE and MH Müller Handel), the CJEU clarifies in principle that a company's neutrality policy can be a justification for this, but it must be applied consistently and without distinction (an in-depth discussion of the decision is offered by the comment of Seeland, HSI-Report 3/2021, p. 4, in German). Moreover, in the EPSU case (C-928/19 P), the CJEU had to deal in the last instance with the social dialogue and the
legislative procedure under Article 155 TFEU, strengthening the position of the Commission and weakening the binding nature of the dialogue between the social partners. Here it is now up to the Union legislator to give the social partnership instrument a stronger binding effect.
In addition, various aspects of temporary agency work relevant for German law are at issue in ongoing proceedings before the CJEU.
At the ECtHR, several cases revolve around freedom of expression in the employment relationship. Among other things, the ECtHR dealt with the question of how `Likes`, which are used on Facebook, for example, to show approval of content, are to be assessed against the background of freedom of expression within the employment relationship (Melike v. Turkey, No. 35786/19, see the comment of Buschmann, HSI-Report 3/2021, p. 12, in German). The cases of Yartsev v. Russia, No. 16683/17 and £ab¹d v. Poland, No. 10949/15 deal with participation in trade union demonstrations, Poienaru v. Romania, No. 43744/17 and Pill v. Germany, No. 51451/19 with whistleblowing.