Key Employment Law Issues

Proof of an employment relationship Privacy at work Dismissals – collective redundancy Business transfers Works councils Rights of residency Equal opportunities Atypical workers

Proof of an employment relationship

Reference / Date: Directive 91/533/EEC of October 14th 1991
Implementation Date: 30th June 1993
Selected OJ References: L 288 (1991)
Summary: The right of employees to receive a written statement of employment particulars.

Principal Elements:

All employees have a right to receive a statement of employment particulars – apart from casual, certain part-time and temporary staff.
This requirement must be met within two months of the commencement of an employment relationship.
The document should contain a minimum set of specified information such as 1] the identity of the parties, 2] the place of work and 3] the job title, grade, nature and category of work.
Any change in employment terms must be communicated in writing within one month of it taking place.
This document may not necessarily constitute a formal contract of employment.

Other Related Measures: ILO Conventions 64 (1939), 86 (1947)

Key ECJ Case(s): C- 383/95, C – 253 / 96 To C- 258 / 96

Text of the Directive
Council Directive of 14 October 1991 (91/533/EEC) – Proof of Employment Relationship Directive on an employer’s obligation to inform employees of the conditions applicable to the contract or employment relationship.

The council of the European Communities:

Having regard to the Treaty establishing the European Economic Community, and in particular Article 100 thereof,
Having regard to the proposal from the Commission,
Having regard to the opinion of the European Parliament,
Having regard to the opinion of the Economic and Social Committee,
Whereas the development, in the Member States, of new forms of work has led to an increase in the number of types of employment relationship;
Whereas, faced with this development, certain Member States have considered it necessary to subject employment relationships to formal requirements;
Whereas these provisions are designed to provide employees with improved protection against possible infringements of their rights and to create greater transparency on the labour market;
Whereas the relevant legislation of the Member States differs considerably on such fundamental points as the requirement to inform employees in writing of the main terms of the contract or employment relationship;
Whereas differences in the legislation of Member States may have a direct effect on the operation of the common market;
Whereas Article 117 of the Treaty provides for the Member States to agree upon the need to promote improved working conditions and an improved standard of living for worker, so as to make possible their harmonisation while the improvement is being maintained;
Whereas point 9 of the Community Charter of Fundamental Social Rights for Workers, adopted at the Strasbourg European Council on 9 December 1989 by the Heads of State and Government of 11 Member States, states: ‘The conditions of employment of every worker of the European Community shall be stipulated in laws, a collective agreement or a contract of employment, according to arrangements applying in each country’;
Whereas it is necessary to establish at Community level the general requirement that every employee must be provided with a document containing information on the essential elements of his contract or employment relationship;
Whereas, in view of the need to maintain a certain degree of flexibility in employment relationships, Member States should be able to exclude certain limited cases of employment relationship from this Directive’s scope of application;
Whereas the obligation to provide information may be met by means of a written contract, a letter of appointment or one or more other documents or, if they are lacking, a written statement signed by the employer;
Whereas, in the case of expatriation of the employee, the latter must, in addition to the main terms of his contract or employment relationship, be supplied with relevant information connected with his secondment;
Whereas, in order to protect the interests of employees with regard to obtaining a document, any change in the main terms of the contract or employment relationship must be communicated to them in writing;
Whereas it is necessary for Member States to guarantee that employees can claim the rights conferred on them by this Directive;
Whereas Member States are to adopt the laws, regulations and legislative provisions necessary to comply with this Directive or are to ensure that both sides of industry set up the necessary provisions by agreement, with Member States being obliged to take the necessary steps enabling them at all times to guarantee the results imposed by this Directive.

Has adopted this directive:

Article 1: Scope

1. This Directive shall apply to every paid employee having a contract or employment relationship defined by the law in force in a Member State and/or governed by the law in force in a Member State.

2. Member States may provide that this Directive shall not apply to employees having a contract or employment relationship:

(a) – with a total duration not exceeding one month, and/or – with a working week not exceeding eight hours; or

(b) of a casual and/or specific nature provided, in these case, that its non-application is justified by objective considerations.

Article 2: Obligation to provide information

1. An employer shall be obliged to notify an employee to whom this Directive applies, hereinafter referred to as ‘the employee’, of the essential aspects of the contract or employment relationship.

2. The information referred to in paragraph 1 shall cover at least the following:

(a) the identities of the parties;

(b) the place of work; where there is no fixed or main place of work, the principle that the employee is employed at various places and the registered place of business or, where appropriate, the domicile of the employer;

(c) (i) the title, grade, nature or category of the work for which the employee is employed; or
(ii) a brief specification or description of the work;

(d) the date of commencement of the contract or employment relationship;

(e) in the case of a temporary contract or employment relationship, the expected duration thereof;

(f) the amount of paid leave to which the employee is entitled or, where this cannot be indicated when the information is given, the procedures for allocating and determining such leave;

(g) the length of the periods of notice to be observed by the employer and the employee should their contract or employment relationship be terminated or, where this cannot be indicated when the information is given, the method of determining such periods of notice;

(h) the initial basic amount, the other component elements and the frequency of payment of the remuneration to which the employee is entitled;

(i) the length of the employee’s normal working day or week;

(j) where appropriate;
(i) the collective agreements governing the employee’s conditions of work;
or
(ii) in the case of collective agreements concluded outside the business by special joint bodies or institutions, the name of the competent body or joint institution within which the agreements were concluded.

3. The information referred to in paragraph 2(f), (g), (h) and (i) may, where appropriate, be given in the form of a reference to the laws, regulations and administrative or statutory provisions or collective agreements governing those particular points.

Article 3: Means of information

1. The information referred to in Article 2(2) may be given to the employee, not later than two months after the commencement of employment, in the form of:

(a) a written contract of employment; and/or

(b) a letter of engagement; and/or

(c) one or more other written documents, where one of these documents contains at least all the information referred to in Article 2(2)(a), (b), (c), (d), (h) and (i).

2. Where none of the documents referred to in paragraph 1 is handed over to the employee within the prescribed period, the employer shall be obliged to give the employee, not later than two months after the commencement of employment, a written declaration signed by the employer and containing at least the information referred to in Article 2(2). Where the document(s) referred to in paragraph 1 contain only part of the information required, the written declaration provided for in the first subparagraph of this paragraph shall cover the remaining information.

3. Where the contract or employment relationship comes to an end before expiry of a period of two months as from the date of the start of work, the information provided for in Article 2 and in this Article must be made available to the employee by the end of this period at the latest.

Article 4: Expatriate employees

1. Where an employee is required to work in a country or countries other than the Member State whose law and/or practice governs the contract or employment relationship, the document(s) referred to in Article 3 must be in his/her possession before his/her departure and must include at least the following additional information:

(a) the duration of the employment abroad;

(b) the currency to be used for the payment of remuneration;

(d) where appropriate, the conditions governing the employee’s repatriation.

2. The information referred to in paragraph 1(b) and (c) may, where appropriate, be given in the form of a reference to the laws, regulations and administrative or statutory provisions or collective agreements governing those particular points.

3. Paragraphs 1 and 2 shall not apply if the duration of the employment outside the country whose law and/or practice governs the contract or employment relationship is one month or less.

Article 5: Modification of aspects of the contract or employment relationship

1. Any change in the details referred to in Articles 2(2) and 4(1) must be the subject of a written document to be given by the employer to the employee at the earliest opportunity and not later than one month after the date of entry into effect of the change in question.

2. The written document referred to in paragraph 1 shall not be compulsory in the event of a change in the laws, regulations and administrative or statutory provisions or collective agreements cited in the documents referred to in Article 3, supplemented, where appropriate, pursuant to Article 4(1).

Article 6: Form and proof of the existence of a contract or employment relationship and procedural rules

This Directive shall be without prejudice to national law and practice concerning:
- the form of the contract or employment relationship,
- proof as regards the existence and content of a contract or employment relationship,
- the relevant procedural rules.

Article 7: More favourable provisions

This Directive shall not affect Member States’ prerogative to apply or to introduce laws, regulations or administrative provisions which and more favourable to employees or to encourage or permit the application of agreements which are more favourable to employees.

Article 8: Defence of rights

1. Member States shall introduce into their national legal systems such measures as are necessary to enable all employees who consider themselves wronged by failure to comply with the obligations arising from this Directive to pursue their claims by judicial process after possible recourse to other competent authorities.

2. Member States may provide that access to the means of redress referred to in paragraph 1 are subject to the notification of the employer by the employee and the failure by the employer to reply within 15 days of notification. However, the formality of prior notification may in no case be required in the cases referred to in Article 4, neither for workers with a temporary contract or employment relationship, nor for employees not covered by a collective agreement or by collective agreements relating to the employment relationship.

Article 9: Final provisions

1. Member States shall adopt the laws, regulations and administrative provisions necessary to comply with this Directive no late than 30 June 1993 or shall ensure by that date that the employers’ and workers’ representatives introduce the required provisions by way of agreement, the Member States being obliged to take the necessary steps enabling them at all times to guarantee the results imposed by this Directive.
They shall forthwith inform the Commission thereof.

2. Member States shall take the necessary measures to ensure that, in the case of employment relationships in existence upon entry into force of the provisions that they adopt, the employer gives the employee, on request, within two months of receiving that request; any of the documents referred to in Article 3, supplemented, where appropriate, pursuant to Article 4(1).

3. When Member States adopt the measures referred to in paragraph 1, such measures shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such a reference shall be laid down by the Member States.

4. Member States shall forthwith inform the Commission of the measures they take to implement this Directive.

Article 10

This Directive is addressed to the Member States.
Done at Luxembourg, 14 October 1991.
For the Council
The President
B. de VRIES

Privacy at work

Data protection offices across Europe

Some useful documents and links:

Austria	France	Latvia	Portugal
Belgium	Germany	Lithuania	Slovak Republic
Czech Republic	Greece	Macedonia	Spain
Denmark	Hungary	Netherlands	Sweden
Estonia	Ireland	Norway	Switzerland
Finland	Italy	Poland	United Kingdom

Links

EU Alternative standard contractual clauses for data transfers (pdf)

US safe harbor framework for personal data transfers with EU member states

European Commission decision on standard contractual clauses for the transfer of personal data to third countries (December 2004)

European Commission documents on data protection and privacy at work

Draft code of practice on privacy at work: Drawn up for the Office of the UK Information Commissioner by Robin Chater (now FedEE Secretary General), this was the first code of its kind in the world. It remains the most succinct statement of employers’ obligations in this field and has been used as a basis for many individual company policies.

Dismissals – collective redundancy

Within the EU there is core legislation on collective redundancies that applies to all member states. This derives from EU Directive 98/59/EC, originally passed in 1975.

The Directive requires that employers contemplating collective dismissals follow certain procedures. Member states have some flexibility in choosing how to define a collective dismissal, but typically it involves dismissing 20 or more employees over a period of 90 days, or the lesser of 10% of the employees or 30 employees over 30 days. Where the law applies, the employer must carry out a number of obligations before the projected redundancies. These include:

* Providing employee representatives with information on the reasons for the redundancies, the number of employees affected, the selection criteria to be applied in determining which employees are to be maderedundant and whether there will be any enhanced redundancy payments, and

* Consulting employees and/or their representatives on how to avoid collective redundancies, how to reduce the number of employees affected and how to mitigate the consequences by measures aimed at redeploying or retraining employees.

Although there is no requirement to reach agreement through consultation, the employer must demonstrate that they have genuinely sought to reach an agreement.

The relevant state authority must be notified about the outcome of the consultation and dismissals may not take effect earlier than 30 days after notification.

In practice, an employer proposing a collective redundancy will find that there are significant differences between member states. For example, penalties for non-compliance in some countries are financial, in others employees must be reinstated.

Especial care must be taken where employers are reducing headcount across a number of countries, particularly if the justification for the redundancies is the same. If the process in one state moves ahead faster than in another, employee representatives may argue a lack of proper consultation or regard ongoing consultations in a particular country as not genuine. For this reason the process should be managed centrally within the organisation, the timing of key decisions closely coordinated and the links between workforce representatives clearly understood and taken fully into account.

Business transfers

Determining whether your business is subject to transfer of undertakings rules

What is a business transfer?

The right of an employee to a comprehensive range of employment protection when their employer’s business is subject to merger or transfer of ownership was first set out in the EC Transfer of Undertakings Directive (77/187/EEC). However, since its first incorporation into national regulations across the European Union [1] a large body of case law has developed which has made it increasingly difficult to determine if any given activity is covered by transfer rules.

Definitions

The most authoritative definition of a transfer of undertaking is that set out in the EU Council Directive 2001/23/EC (the revised Transfer of Undertakings Directive). Article 1(b) states that a transfer has taken place when “there is a transfer of an economic entity which retains its identity, meaning an organised grouping of resources which has the objective of pursuing an economic activity, whether or not that activity is central or ancillary”.
Article 2 (d) of the Directive also defines an employee to be “any person who, in the member state concerned, is protected as an employee under national employment law”.
A relevant transfer was defined by the European Court of Justice (ECJ) to be “a change in the natural or legal person responsible for carrying out the business, who by virtue of this acquires the obligations of an employer vis-a-vis employees of the undertaking, regardless of whether or not ownership is transferred” (Allen v Amalgamated Construction [2000] IRLR 119)
An entity has been defined by the ECJ as “an organised grouping of persons or assets facilitating the exercise of an economic activity which pursues a specific objective”.
However, the ECJ has tended to take a very broad interpretation of ‘economic activity’ [Dr Sophie Redmond Stichting v Bartol [1992] IRLR 366, EC and Rask v ISS Kantinservice A/S [1993] IRLR 133, ECJ) by making both public sector and non-profit organisations subject to the Directive. It was for this reason that the UK government changed its orginal regulations to define a relevant transfer as being from ‘one person to another of an undertaking situated immediately before the transfer in the United Kingdom or a part of one which is so situated’ (Reg 3 (1)). [2]

Interpretation

A number of common criteria must clearly apply for the transfer process to fall under the above definitions:

The entity should be stable, tangible and identifiable
It should not be limited to the performance of a single contract
It must retain its identity
No assets need to be transferred, apart from the workforce
No contractual link need exist between the transferor and the transferee

It has been established that the transfer rules also apply to:

franchises
transfer of leases
public as well as private sector organisations
subcontracted businesses transferred to a contracting company
contracting-out or outsourcing of functions
a single employee transferred to a contractor
a company in voluntary liquidation
employees separated physically into small units

It has been found that the rules do not apply in cases where:

a new contract has radically different supervision arrangements and working times or,
no physical assets, nor the majority of staff are transferred or,
there is no separate entity after the transfer or,
where only shares or physical assets are transferred or,
the new firm does not take over any staff (provided this is not to avoid the rules), or
the transfer of a temporary employee takes place only for the completion of a contract, or
there is a purely administrative transfer with no other changes taking place.

Courts and tribunals across the European Union have tended to apply a variety of ‘home grown’ multi-factor tests in order to distinguish between those transactions involving simple asset purchases/exchanges and genuine business transfers.

The Transfer of Undertakings Directive 2001/23/EC (Acquired Rights)

Footnotes:
[1] The UK, for instance, first implemented the Directive through the Transfer of Undertakings (Protection of Employment) Regulations 1981.
[2] The UK regulation must be assumed to refer both to natural and legal (corporate) ‘persons’.

Works councils

National works councils

Council Directive 2002/14/EC of 11th March 2002 was introduced to extend the requirement for works councils to a local and company level in all EU member states. This Directive applies either to undertakings employing at least 50 employees in one member state or establishments employing at least 20 employees in one member state. The deadline for incorporation into national legislation was 23rd March 2005, although transitional provisions existed for some member states such as the UK and the Republic of Ireland until 23rd March 2008.

Text of national works councils Directive

Information and Consultation Framework Directive

Summary of Great Britain’s information and consultation regulations

Directive on worker information and consultation at a European level (EWC Directive)

The European Works Council Directive (EWC Directive) was adopted by the Council of Ministers on September 22nd 1994. It was passed into national legislation on September 22nd 1996. A further directive bringing UK employees under the coverage of the information and consultation requirements became effective on January 15th 2000.

This was the third Directive to incorporate a requirement to inform and consult the workforce.

Qualifying criteria

An employer is required to establish an EWC if they employ at least 1,000 employees within the EU member states and at least 150 employees in each of two member states. All employee numbers are calculated by taking the average number for the previous two years (part-time staff are not pro-rata)
The ‘controlling undertaking’ for the purposes of the Directive shall be any body which can exercise a ‘dominant influence’ over another undertaking. This is automatic when more than half the share capital is owned by one body
Those organisations which had in place an ‘agreed’ mechanism for informing and consulting their entire workforce on transnational issues when the Directive took effect were excluded from compliance with the strict terms of the Directive. (Article 13 Agreements).
The EWC shall be established at a group level unless the management and SNB (see below) agree, in writing, to establish more than one consultation procedure

Establishing an EWC

A ‘qualifying’ company must respond within a period of six months to a written request from at least 100 employees (or their representatives) in at least two undertakings/establishments in at least two different member states.
The first step will be to establish a ‘special negotiating body’ (SNB). This shall have a minimum of three and a maximum of seventeen members. All countries where the company has employees must be represented by at least one member. Voting on the body will be decided by a simple majority.
The SNB will work with ‘central management’ to determine, through written agreement, the scope, composition, functions, and terms of office of the European Works Council. The SNB may be assisted by experts of their choice and may also decide, by two thirds majority, to terminate negotiations. In such an event the SNB may not be reconvened for a two year period – unless both parties agree an alternative period.
All expenses required to convene the SNB and negotiate with central management shall be borne by central management.
Both parties must negotiate in ‘a spirit of cooperation’ with a view to reaching an agreement.
The final agreement shall contain
* a definition of the coverage of the EWC
* the composition of the EWC and terms of office
* the way in which information and consultation shall take place – including the venue, frequency and duration of meetings
* the funding and staffing of the EWC
* the way in which employee representatives will be able to meet to discuss the information conveyed to them
* the period covered by the agreement and procedure for its renegotiation.
The information conveyed to worker representatives must be that relating to particular transnational questions which significantly affect workers’ interests
Where ‘central management’ fails to respond to a valid request within a period of six months, or both parties are unable to conclude an agreement within a period of three years from the date of the request, a default agreement (set out in an annex to the Directive) shall automatically apply.

Limitations

It is possible for management to withhold ‘sensitive information’ which, if revealed, would ‘seriously harm the functioning of the undertaking concerned’. They are also able to require members of the SNB and/or EWC to respect the confidentiality of certain information.
Members of SNB’s and EWC’s are given the same protection under national laws as those of other employee representatives. They have the right to paid time off from work to carry out their duties.

Enforcement

All national governments must have now put in place procedures to monitor compliance and administrative/judicial processes to enforce the Directive.
The European Commission carried out a review of the Directive, which was published during the spring of 2000. Although they recommended no change, the Council of Ministers has subsequently been under pressure from the European Parliament to make a number of fundamental amendments.

Example of EWC agreement

IBM European Works Council Agreement

Text of EWC Directive

EC Directive on employee information and consultation at a European level (European Works Councils Directive)

Directive 2009/38/EC

The EU’s recast European Works Council Directive (2009/38/EC) must be transposed into national legislation across all EU member states by June 5th 2011. This measure amends the former Directive in a number of important ways:
Transnational matters are clarified. They relate to either the community-scale undertaking as a whole or “at least two undertakings or establishments of the undertaking or group situated in two different Member States”. However, there may also be matters that need to be discussed at an EWC level because of the “scope of their potential effects or which involve transfers of activities between Member States”.
The timing of information to be given to employee representatives has been potentially extended by requiring employers to provide it in time for representatives to make “an in-depth assessment” and prepare for consultations. The consultation process must also begin before final decisions have been made by employers. This will slow down decision making and no doubt increase costs when major changes are being proposed.
The Directive also places an obligation on employers to inform European trade unions and employers’ organisations when negotiations commence. Employee representatives on special negotiating bodies may also request that trade unions be involved in meetings with employers.
EU member states are required to ensure that negotiations on transnational changes are conducted at the EWC level as well as at a national level.
There is a new specific obligation on the central management of transnational enterprises to provide the EWC with the means required to fulfil its duties.
Members of Special Negotiating Bodies (SNBs) and EWCs have a right to receive necessary training and to take time off for that training.
Existing EWC agreements must be renegotiated if significant changes occur that are not expressly catered for in the current agreement or “there is a conflict between the provisions of two or more applicable EWC agreements” – as in the case of a merger between two enterprises. However, old “article 13″ agreements are only affected by the revised Directive if there is no provision in the agreement for renegotiations to take place. To trigger a new request for renegotiation a written request must be submitted, signed by at least 100 employees/employee representatives in at least two locations in different member states.
Whether these changes will give the EWC Directive more teeth has yet to be seen. The UK government, for instance, is leaving existing agreements concluded before December 15th 1999 to continue under unaltered previous regulations. The new rules will only apply to agreements concluded after June 4th 2011 or recent agreements where they were revised in the two years prior to June 5th 2011.

National EWC legislation: key aspects

Austria

Selection of SNB/EWC representatives - Elected / nominated from members of the existing works councils or national company councils. Full time trade union officers may be nominated.

Use of experts in The SNB - Any experts the SNB thinks fit to consult. Central management foots the bill for experts.

Meetings of the SNB – Management must convene the first meeting.

Composition of the EWC - At least one per country. One additional representative for every country with 20% of workforce, three for 30%, five for 40%, seven for 50%, nine for 60%, eleven for 70% and thirteen where a country has 80%+ of workforce.

Meetings in exceptional circumstances - Meetings must take place immediately after the issue of a report from central management. The EWC must respond without any unreasonable delay.

Rights of EWC members - The legal protection afforded EWC members is the same as for national works council members.

Confidentiality – Members of the SNB and EWC are automatically bound by confidentiality. Central management need not reveal any information which might seriously damage the functioning of the company.

Belgium

Selection of SNB/EWC representatives – Nomination / election by employee members of the ‘Conseil d’enterprise’. In the absence of that committee – the ‘Comite de securite, d’hygiene et d’embellissement du lieu de travail’. In the absence of that further committee delegates from the trade union (after gaining clearance from commission paritaire). In the absence of all three parties by secret ballot of employees. Members will be employees, but exceptionally may be union officials.

Use of experts in The SNB - Experts chosen by the SNB. Central management must fund one expert.

Meetings of the SNB – Management takes initiative for first meeting.

Composition of the EWC – At least one per meeting. One additional representative for 10% of the workers in one country, two for 20%, three for 40%, four for 60%, five for 75%.

Meetings in exceptional circumstances – Meetings to be convened as soon as possible.

Rights of EWC members - EWC members must be given time and resources to inform local representatives. Belgian EWC members enjoy the same rights as conseil d’enterprise – especially in respect to attendance at meetings, pre-meetings and compensation.

Denmark

Selection of SNB/EWC representatives - Nomination / election by existing works council(s). In the absence of a WC trade union delegates. In the absence of both parties a secret ballot. The SNB and EWC may only have members who are employees.

Use of experts in The SNB – The SNB may use experts chosen by it. Central management must fund one expert.

Meetings of the SNB – A management initiative is required for the first meeting.

Composition of the EWC – At least one per country – but not more than thirty. Companies with less than 2,000 employees: One additional representative for the country with the most workers. More than 2,000 employees: One additional representative for every 25% of workers concentrated in one country. More than10,000 employees: One extra representative per 5,000 workers.

Meetings in exceptional circumstances – Meetings must take place as soon as possible – based on a report from central/other level of management.

Rights of EWC members – The same rights as trades union representatives.

Confidentiality - Central management’s request must be adhered to in specified cases. Management may decide not to pass on information which may damage the interests of the company.

Finland

Selection of SNB/EWC representatives - If no agreement can be reached between employee representatives an election must take place from amongst the health and safety delegates.

Use of experts in The SNB - No reference is made to this issue.

Meetings of the SNB – No reference is made to this issue.

Composition of the EWC - The distribution of additional seats must be agreed by management and employee representatives.

Meetings in exceptional circumstances – Central management will draw up a report before a special meeting and the EWC may conclude a policy declaration.

Rights of EWC members – General protection assumed for those taking part in trade union activities.

Confidentiality – Reference to Finnish law on cooperation.

France

Selection of SNB/EWC representatives – Trade unions designate representatives from amongst their elected members on the company works council, or national works council (comite d’establissement). There are no provisions specifying whether SNB/EWC members must be company employees.

Use of experts in The SNB - The SNB may call on experts of its choice. Central management must fund one expert.

Meetings of the SNB – The head of the central management – or his/her representative – must convene the first meeting.

Composition of the EWC - 3 – 30 members. One additional member for countries with 20%-30% of workers, two for 30-40%, three for 40-50%, four for 50-60%, five for 60-80% and six for 80%+.

Meetings in exceptional circumstances – Management must provide EWC members with a report.

Rights of EWC members – Maximum time credit of 120 hours pa for the EWC Secretary and any members of a select committee. EWC time itself is not subject to limitation. Protection is the same as for all members of works councils.

Confidentiality – If management requests confidentiality it must be respected.

Germany

Selection of SNB/EWC representatives – Election / nomination by the three tiers of national works council in Germany – plant, company and group. Special provisions must be introduced if the works council structure does not cover the whole undertaking. Worker representatives (officers) may be nominated to the SNB.

Use of experts in The SNB – Any expertise considered appropriate. Central management is only obliged to fund one expert.

Meetings of the SNB – Central management will convene the first meeting. The SNB has the right to pre-meetings.

Composition of the EWC – At least one per country – with a maximum of 30 members. Companies with less than 10,000 employees: One extra member for countries accounting for 20%+ of employees, plus one extra for each country with 10% + and up to seven representatives where a country accounts for 80% + of undertaking. Where there are more than10,000 workers, one additional representative for 20% of workers, three for 30% locations, five for 40% locations, seven for 50% locations, nine for 60% locations, eleven for 70% locations and thirteen for 80%+ locations.

Meetings in exceptional circumstances – Central management must provide EWC members with written information, without delay. Copies of relevant source documents must be attached. It must begin consultation in good time and take any points of agreement into account.

Rights of EWC members – Relevant sections in company law are refered to (BetrVG), also the law on the protection of representatives against redundancy.

Confidentiality – Members, their substitutes and experts must respect confidential information revealed to them. If business or trade secrets are threatened management may withhold sensitive information.

Ireland

Selection of SNB/EWC representatives - By secret ballot, or by agreement between management and employees. Trade union officials may be nominated.

Use of experts in The SNB – It may use experts of its choice. Central management must fund only one expert.

Meetings of the SNB - Management must convene the first meeting.

Composition of the EWC – At least one per country. One additional representative for every 25% of workers in one country, with maximum of three additional representatives for countries accounting for 75% of workers (where one country is dominant).

Meetings in exceptional circumstances – Central management must prepare a report and convene a meeting as soon as possible. A collective position may be achieved at the meeting, or within a reasonable time thereafter.

Rights of EWC members - EWC members must be given reasonable facilities (including time off) to allow them to carry out their duties promptly and efficiently.

Confidentiality - Members and experts must respect the confidentiality of confidential information. Management may withhold data which may prejudice the economic, or financial, position of the company.

Netherlands

Selection of SNB/EWC representatives – Elected / nominated from members of plant, company or national works councils. Any election must be by secret ballot. Members must be company employees.
Use of experts in The SNB - The SNB may choose its own experts. Central management would normally cover the cost of the experts (one or more), but should be given advanced warning of the total financial outlay.
Meetings of the SNB – The first meeting will be convened by management. Pre-meetings are allowed.
Composition of the EWC - At least one per country. Undertakings with less than 5,000 employees – one additional representative where one country accounts for 25% of workforce. Undertakings with more than 5,000 employees – one representative for countries with 5% of total, two for 10% of total, three for 17% of total, five for 25% of total, seven for 50% of total and nine for 75% of total.
Meetings in exceptional circumstances – Management must issue a written report. The select committee may respond within a reasonable time after the special EWC meeting.
Rights of EWC members - EWC members may meet during working time without loss of salary to discuss problems relating to EWC subjects. They also have a right to receive training for their tasks. They are protected fully from dismissal and unfair treatment.
Confidentiality - Management may specify that material should be kept confidential. Central management has a right to withhold information if they believe that disclosure could seriously damage the company.

Norway

Selection of SNB/EWC representatives – Secret ballot by employees, or according to the normal rules for electing worker representatives. Members must be drawn from the body of employees.
Use of experts in The SNB – SNB may use any experts. Central management must pay for one expert, but may extend the number, where appropriate.
Meetings of the SNB – Management to take the initiative for the first meeting
Composition of the EWC – Between 3 and 30 members and at least one per country.
Meetings in exceptional circumstances – Meetings must be held as soon as possible following a report by central management. At the conclusion of the meeting the EWC may adopt a position.
Rights of EWC members – No special provisions. Application of the framework agreement between the Labour office and employers.
Confidentiality – All those present at SNB/EWC meetings must keep all that information confidential which is revealed to them by management on that understanding.

Spain

Selection of SNB/EWC representatives - This has to be agreed and achieved through the existing works council, or trades union structure – provided such bodies represent the majority of the workforce. Members of the EWC must be employees of the company.
Use of experts in The SNB - The SNB may call on the services of any expert. Central management must fund only one expert.
Meetings of the SNB – Management must convene the first meeting of the SNB.
Composition of the EWC – At least one representative per country. One additional representative for every 25% of workers in one country with maximum of three additional representatives for 75% of workers (where one country is dominant).
Meetings in exceptional circumstances - Management must send EWC members a report at an early enough time for objections to be made. A position may be agreed at the end of the special meeting or within seven days thereafter.
Rights of EWC members – An additional time credit is given to EWC members of 60 hours pa. The protection given is the same as for national trade union / works council representatives.
Confidentiality - No third party may receive information which has been specified as confidential. Secrecy rights apply only to certain sensitive production methods and strategic data on markets.

Sweden

Selection of SNB/EWC representatives – Where trade unions represent the majority of the workforce and have a collective agreement they will be responsible for nomination / election. If there is no collective agreement then the trade union with the majority of members makes the necessary nominations. Special provisions exist for exceptional situations. There is no legal requirement to elect only employees.

Use of experts in The SNB - Experts may be consulted. There is no restriction of company funding to meet their cost.

Meetings of the SNB – It is up to management to convene the first SNB meeting.

Composition of the EWC – At least one per country. One additional representative for every 25% of workers concentrated in one country with maximum of three additional representatives for 75% of workers (where one country is dominant).

Meetings in exceptional circumstances – Central management must draw up a report before the special meeting and the EWC may adopt a position in respect to it.

Rights of EWC members – The national laws protecting employee representatives are applicable.

Confidentiality – Both EWC members and experts may be required to keep certain matters confidential.

Rights of residency

Rights of residence and employment

European Union citizens have the right to enter other states within the Union, take up residence and seek employment without hindrance from state authorities. Third country nationals will, however, only normally be granted immediate rights of entry as tourists or for short-term business purposes. Applications for entry visas (where required), residence and work permits should initially be made through the local embassy of the chosen EU country.

The most relevant transnational measures regulating the freedom of movement of EU citizens are:

The right to refuse entry and grounds for expulsion (64/221/EEC – revised 1972)
Movement and residence (68/360/EEC)
Free movement of workers (Regulation 1612/68)
Social security rights for migrant workers (Regulations 1408/71 and 574/72)
Self-employment and service provision (73/148/EEC)
Right to remain in a member state – self-employed worker (75/34/EEC)
Vocational qualifications – comparability (Council decision 85/368/EEC)
Mutual recognition of qualifications – (Architects (85/384/EEC), Pharmacists (85/432/EEC), certificates involving years + study (89/48/EEC), certificates involving under 3 years study (92/51/EEC), Doctors (93/16/EEC), Academics (Commission communication Dec 13th 1994), road transport operators (96/26/EC), lawyers (98/5/EC).
Rights of residence – special categories (90/364/EEC)
Rights of residence after retirement (90/365/EEC)
Rights of residence – students (90/366/EEC)
Long-term third country residents (Council resolution March 4th 1996)
Third country nationals – Employment (Council recommendation Sept 27th 1996)
Posting of workers within the EU (96/71/EC)

Rights of entry to the UK

EU citizens may freely enter the UK, but they will be required to apply for a residence permit if they stay for prolonged periods. The relevant contact points for further information are as follows:

Internet site with useful documents that may be downloaded: http://www.fco.gov.uk
Entry clearance and visas – Joint Entry Clearance Unit:
Telephone 0207 238 3838
Residence permits – Home Office enquiry line:
Telephone: 0870 606 7766
Work permits – DfEE Overseas labour service:
Telephone 0114 259 4074 (employers should call this number before offering employment to third country nationals).
Job Centres – DWP enquiry line:
Telephone 0845 601 2001

Other European countries

Here are some telephone numbers for Ministry of Employment/Labour/Social Affairs enquiries in a number of other European states:

Belgium	0032 2 2334111
Bulgaria	00359 2 8601
Cyprus	0002 303481
Czech Republic	0042 02 24902111
Denmark	0045 33 925900
Estonia	00372 2 423550
Finland	00358 9 18561
France	0033 1 44383838
Germany	0049 2 285271
Greece	0030 1 5295001
Hungary	0036 1 3022100
Iceland	00354 5609100
Ireland	00353 1 6765861 or 6614444
Italy	0039 6 46831 or 481611
Luxembourg	00352 478 1
Malta	00356 243166 9
Netherlands	0031 70 3334444
Norway	0047 22 249090
Poland	0048 22 6289041
Portugal	00351 1 8470010

For remaining European states we suggest that employers initially contact the local chamber of commerce in the country concerned.

Equal opportunities

There are various European Union (EU) directives that make it unlawful for employers to discriminate against workers on the grounds of gender, race, religion or belief, disability, age and sexual orientation.

This means that wherever you employ someone in the EU, you must:

provide equal access to employment and vocational training,
treat employees fairly and equally in relation to working conditions and pay,
make sure that disabled people have appropriate access and work aids.

As an employer you must provide equal pay for equal work or work of equal value. Pay includes not only wages/salary but also conditions attached to pay. For example – overtime rules, and benefits such as company cars and health insurance.

Workplace discrimination

Directive 2000/78/EC establishes a general framework for equal treatment in employment and occupation. It forbids discrimination based on religion, belief, disability, age and sexual orientation. The principle of equal treatment means that there shall be no direct or indirect discrimination on any of the above grounds.

Discrimination on disability grounds

In order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities reasonable accommodation of their needs must be given. This means that employers have to take reasonable, appropriate measures to enable a person with a disability to participate in employment or to undergo training.

Racial and ethnic discrimination

Freedom from discrimination is safeguarded at EU level by Directive 2000/43/EC implementing the principle of equal treatment irrespective of racial or ethnic origin. The Directive covers areas such as education, social protection (social security and healthcare), social advantages and access to and the supply of goods and services in addition to ensuring equal access to employment and self-employment (see Directive 2000/78/EC).

All forms of direct or indirect discrimination on the grounds of race or ethnic origin are prohibited. Direct discrimination may be in the form of overtly less favourable treatment of a person or group. Indirect discrimination can occur in the form of an act that may appear to be neutral, but is likely to have an unfavourable outcome for a person or a specific group of people. The only exception is when race or ethnic origin constitutes a fundamental professional requirement. The Directive does not cover discrimination based on nationality (which is covered by the EU Treaty itself).

Equality between men and women

Equality between men and women in the workplace is guaranteed by three principal EU measures. The Equal Pay Directive 75/117/EC specifies that an employer is not allowed to pay persons doing the same work or work of equal value, differently due to their sex. If a job qualification or evaluation is used to determine pay, it must use the same criteria for men and women and it has to be designed in such a way that it does not discriminate between the two genders.

The Equal Treatment Directive 76/207/EC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and working conditions ensures equal access to all types and levels of vocational guidance and training and equal working conditions, including dismissal. A woman cannot be dismissed on grounds of pregnancy or maternity. However, the Directive does not apply to occupations where the sex of the employee is a legitimate determining factor.

Both the Equal Pay and the Equal Treatment Directive require the Member States to take the necessary measures to protect employees who have filed a complaint of unfair treatment against their employer against dismissal.

The Equal Social Security Directive 86/378/EEC on the implementation of the principle of equal treatment for men and women in occupational social security schemes applies to members of the working population including self-

employed persons, persons whose activity is interrupted by illness, maternity, accident or involuntary unemployment and persons seeking employment and to retired and disabled workers. The Directive does not apply to individual contracts, schemes having only one member and salaried workers.

The burden of proof in cases of discrimination is partially reversed to the extent that Member States shall take such measures as are necessary in accordance with their national judicial systems to ensure that, where the claimant establishes, before a court or other competent authority, facts from which discrimination may be presumed to exist, it is for the defendant to prove that there has been no contravention of the principle of equality. In practice this requires that the claimant presents an initial case establishing facts which point towards discriminatory behaviour. It is then for the respondent (the employer) to prove that there has been no such behaviour or that the reasons for the difference in treatment were not related to the sex, racial or ethnic origin of the claimant, or that the principle of equal treatment had not been breached. This is limited to certain categories of discrimination:

Sex discrimination: Directive 1997/80/EC
Discrimination based on racial or ethnic origin: Directive 2000/43/EC
Discrimination relating to equal treatment in employment and occupation: Directive 2000/78/EC

Article 8 of Directive 2000/43/EC and Article 10 of Directive 2000/78/EC allows Member States to introduce rules of evidence that are more favourable to the claimant.

Atypical workers

Atypical work refers to those activities that lie outside the classical employment mould by not being either full-time, and/or permanent, and/or operating from a dedicated workplace and/or subject to regular working hours. There has been rapid growth during the last two decades in these new forms of work with an increasing number of employees on part-time, casual, fixed-term, temporary agency and teleworking contracts. There is also an important gender dimension with men disproportionately represented in standard employment relationships and women subject to atypical conditions.

Under EU law a number of atypical workers such as part-time, fixed-term and agency staff on longer-term assignments have a right to equal treatment with regular employees. Directive 97/81/EC (15 December 1997) on part-time work embodies the non-discrimination principle and a similar model applies in relation to fixed-term work (Directive 1999/70/EC). Temporary agency work was excluded from the directive on fixed-term work, but later regulated through Directive 2008/104/EC.

Teleworkers have some measure of protection through the European framework agreement between the EU social partners, signed on the 16th of July 2002. This regulates areas such as employment conditions, health and safety, training and collective rights.

A number of issues have been raised by the atypical worker directives. Among these have been whether employees on fixed-term contracts are entitled to receive maternity pay if they become pregnant whilst employed on the contract; whether fixed-term workers have any dismissal protection prior to and at the date when their contract ends and whether temporary workers have any entitlement to paid annual holidays.

The rights of part-time workers have been a particular focus area for the European Court of Justice (ECJ). The court has ruled on such matters as sick pay (Rinner-Kuhn v FWW Spezial-Gebäudereinigung GmbH, 171/88), statutory redundancy payments (Barber v Guardian Royal Exchange, 262/88), severance pay (Kowalska v Freie und Hansestadt Hamburg, C-33/89), paid time off for vocational training (Arbeiterwohlfahrt der Stadt Berlin v Botel, 360/90) and overtime pay for part-time workers (Ms. Elsner-Lakeberg v Land Nordhein Westfalen C-285/02).

The growth of atypical work has often been closely related to the statutory legal framework for permanent full-time employment or the economic climate. For instance, in Spain severance pay remains so high that employers have sought to fill most jobs on a fixed-term basis, whilst more than one in five part-time workers would prefer to work longer hours. A decision to seek an atypical job may, however, be a lifestyle choice – with many part-time and temporary agency workers regarding their position as a flexible solution whilst bringing up a family or undertaking further study for an academic, vocational or professional qualification.

EMPLOYMENT LAW