Termination of employment

UK Dismissal Protection for Employees with Extreme Political Views Inadequate

By Richard Lister

The European Court of Human Rights (ECHR) has ruled that the UK Government must take measures to protect employees from dismissal on grounds of their political opinions or affiliations, including extreme opinions that others might find offensive or shocking (Redfearn v United Kingdom [2012] ECHR 1878).

There have been various cases over the last couple of years about the types of belief that fall within the definition of a "philosophical belief" for the purposes of discrimination law, as now contained in the Equality Act 2010. However, this case concerned an employee who was dismissed for his membership of a particular political party.

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Constitutional Court Retains the Current Level of Protection Offered to Employee Representatives

The Belgian Constitutional Court considers that the protection against dismissal afforded to (candidate) employee representatives in the Works Council and/or the Committee for Prevention and Protection at Work does not violate the principle of equality.

The Labour Tribunal of Huy had asked the Constitution Court whether the restriction of grounds for dismissal (principally serious cause and economic or technical reasons) and the draconian compensation for dismissal (up to eight years of salary) did not violate the principle of equality compared to those of other protected workers such as union representatives or prevention advisors.

In its judgement of 10 October 2012, the Constitutional Court ruled that the specific protection regime laid down in the Act of 19 March 1991 is justifiable.

The Constitutional Court ruled that this regime rests upon a legitimate distinction with respect to a union representative, since the regime for union representatives is not set down by law but by a collective bargaining agreement closed at national level no. 5 and since union representatives are appointed in a fundamentally different way than are (candidate) employee representatives.

With regard to a prevention advisor, the Constitutional Court ruled that, unlike an employee representative, such individual is not elected by all the employees and does not represent the entire staff taking into account his/her independence.

Action point

Ensure that no decision to dismiss a protected employee can be considered without full regard being systematically paid to the requisite legal/sectorial protection enjoyed by such individual.

The New Hungarian Labour Code Enters into Force

By Boglárka Kricskovics-Béli of CLV Partners (the Hungary member of Ius Laboris)

ChangesII.jpgThe new Hungarian Labour Code promises a fundamental overhaul of that country's labour law. Intended to improve competitiveness and increase employment in the face of the current economic crisis, the revised Labour Code introduces new forms of employment, and significantly changes employment rules from hiring to termination.

The new Code recognizes atypical or flexible forms of employment, and expressly allows employees to work for different employers in the same position simultaneously.

Different salaries may be paid to employees of the same employer who work in different regions.

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Extensive Changes to Italian Labour Law to Take Effect on July 18

By Valeria Morosini of Toffoletto De Luca Tamajo e Soci (the Italy member of Ius Laboris)

ItalyII.jpgA bill that will significantly reform the Italian labour market was approved last week and published into the official journal on July 3.

The reforms introduce a wide variety of changes to the employment rules from the hiring to the firing of employees. Reinstatement is no longer the only remedy for unfair dismissals; while it remains applicable in some cases, the judge can order the employer to pay capped compensation. In the case of redundancy, a new procedure is to be followed before the Labour Office whereby the parties must try to settle the dispute before giving notice of the dismissal. New rules will also apply before the court when the employee challenges the fairness of a dismissal.

Furthermore, new regulations dealing with flexible contracts have been introduced. These regulations include an increase to the social contribution rate due on fixed-term contracts as well as a stricter use of contracts with independent contractors, which can lead under specific circumstances, to their relabeling as open-ended employment contracts. It therefore will become very risky for companies to engage under these types of contracts.

On the positive side, it is now possible to enter into a first time fixed-term employment or agency contract with an employee for a period that does not exceed 12 months, without having to specify the reasons for the fixed term.

These reforms introduce considerable changes to the Italian labour market and will enter into force on July 18th.

Pre-Retirement Protection in Case of Fixed-Term Contract

The pre-retirement protection applies in case of a fixed-term contract only if the contract is supposed to expire after the employee reaches the retirement age. If not, there are no obstacles to serve a notice of termination (Supreme Court judgment of 27 July 2011, II PK 20/11). If the protection does apply, that is when the contract is supposed to expire after the employee reaches the retirement age, and the employer breaches it by giving the employee a termination notice, he only risks paying monetary compensation. According to the judgment of 9 January 2012 (II PK 82/11), the employee may not demand reinstatement in the job. Despite the protection, there is no duty to reinstate the employee, because the principle is that termination upon notice of a fixed-term employment contract, even in breach of law, only gives the employee a claim for compensation.

UK Employment Law Reforms - Latest Developments

By Madeleine Jephcott

Changes SignII.jpgIn the weeks since our previous review, in April, of recent and forthcoming legal changes affecting UK workplaces, the detail of some of the Government's reform plans has become a little clearer and some novel proposals have emerged.

The Queen's Speech

The Queen's Speech on 9 May 2012 heralded two bills that will overhaul significant aspects of employment law - the Children and Families Bill and the Enterprise and Regulatory Reform Bill.

The Children and Families Bill - not yet published - will include some of the reforms mooted in last year's Modern Workplaces consultation, although possibly not all of them. The Government's formal response to the consultation is expected shortly. The most significant proposals were:

  • A new system of flexible parental leave, designed to give parents more choice about sharing childcare responsibilities in the early stages of as child's life. In outline, the scheme is likely to entail the mother taking 18 weeks' leave at or around the birth, with the remainder of the current 52-week maternity leave period being reclassified as "parental leave" to be taken flexibly by either parent.
  • Extending the right to request flexible working to all workers who have been employed for 26 weeks, irrespective of the reason for the request. This would be based on the existing system for requesting flexible working for children/adult carers, retaining the current list of eight business reasons for employers turning down a request.
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What's New in Employment Law This April and Beyond?

By Richard Lister

BarometerII.jpgIt is official policy in the UK for most changes to employment legislation to take effect in either April or October each year. This article summarises both the reforms coming into force this month and the major Government proposals for the future currently stacked up in the pipeline.

The most noteworthy changes being implemented in April 2012 are as follows:

Unfair Dismissal Qualifying Period

In a highly controversial reform that was confirmed by the Government last October, the period of employment before an employee qualifies for the right to claim unfair dismissal has increased from one to two years. This applies only to employees who start a new job on or after April 6, 2012: employees already in employment on that date retain the one-year qualifying period.

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Limitations on the Employee's Free Choice as Regards Where He Lives Must Be Justified and Proportionate

By Jean-Benoît Cottin

Since 1999, the French Supreme Court has ruled that, under the provisions of the European Convention on Human Rights and the French Labour Code, everyone has the right to "respect for his home". A free choice as regards the place of residence for self and family is one of the elements of that right. A restriction on that freedom by the employer is valid only on condition of it being essential to protect the legitimate interests of the company and proportionate to the aim pursued (Cass. soc. January 12, 1999, No. 96-40755).

For example, a business development manager living with his family in Paris should not be compelled to move his family residence to Montpellier, 750 km away where he was supposed to work (Cass. soc. January 12, 1999, No. 96-40755). A building janitor doesn't have to live in the building he works for, if he can execute his tasks properly while living elsewhere (Cass. Soc., November 12, 2008, No 07-42601). A contract clause stating that a lawyer must live where his firm is settled because of the necessary "integration into the local environment" isn't sufficiently justified (Cass. soc. July 12, 2005, No. 04-13342; Cass. soc., March 7, 2007, No. 05-21017).

In another more recent case, the Court ruled that dismissing a social worker, in charge of the physical and mental welfare of adults under guardianship, who lived 20km away (25 minutes) from their residence instead of the 200 meters maximum distance stipulated in the employment contract, is unlawful (Cass. soc., February 28, 2012, No. 10-18308).

Government Seeks Views on Workplace Dismissal Rules

By Richard Lister

YouAreFiredIV.jpgThe UK's Department for Business, Innovation and Skills has published a Call for Evidence on workplace dismissal processes. This was announced by Secretary of State for Business, Vince Cable, in a speech to the British Chambers of Commerce on 15th March 2012.

The Call for Evidence is designed to help inform the Government's understanding of the current dismissal system. It includes:

  • Gathering information on awareness and use of the Code of Practice on Disciplinary and Grievance Procedures issued by the UK's conciliation service Acas. In particular, BIS wants to understand whether this could be adapted to make it easier to use and more accessible for smaller businesses.
  • Seeking views on the idea of compensated no-fault dismissal for "micro businesses" (those with fewer than ten employees). Under such a system, the employer would pay a set amount of compensation to the employee but would not be required to go through a formal dismissal procedure.
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Dismissal for Repeated or Prolonged Absences for Sickness

By Jean-Benoît Cottin

The labor code prohibits employers from dismissing an employee because of his health or disability (C. trav., Art. L. 1132-1). Dismissal on grounds of health status is discriminatory and therefore null and void. However, these legal provisions do not prevent a dismissal based on the objective situation of the company whose business is disrupted by the prolonged absence or repeated absences of the sick employee. Such disturbance must occur at the company level, and not just at the department the employee works for (Cass soc. December 2, 2009, No. 08-43486), unless this department is essential for the business of the company (Cass soc. September 16, 2009, No. 08-41841).

The employee may only be dismissed if the employer has no choice but to replace him permanently by hiring another employee. Hiring a temporary worker is not a permanent replacement (Cass soc. May 21, 2008, No. 07-41511; Cass. soc. May 20, 2009, No. 08-40432), no more than using a service provider is (Cass. ass. Plen. April 22, 2011 , No. 09-43334). A judgment of January 25, 2012 of the Supreme Court (Cass. soc., January 25, 2012, No. 10-26502) states that the permanent replacement must take place in the company that employs the employee to be dismissed and not in another company of the group.

In this case, the recruitment of the employee had been commissioned and monitored by the supervisors of the employee to be replaced. The new employee did work for the same team as the previous employee, but had been legally hired by another company of the group. Therefore, the dismissal was invalid.