Working to European rules

1 March 2005



Roger Steel, of international law firm Eversheds LLP, surveys some of Europe’s recent employment legislation


The EC directive establishing a general framework for informing and consulting employees must be put into law in member states by March 23 this year.

In Belgium, the unions have used this opportunity to demand a more elaborate system in small and medium-sized companies.

Under current Belgian law, businesses with 100 employees or more must set up a works council. This is entitled to receive relevant economic and financial information regularly. (In certain situations it is also entitled to more specific information.)

Companies employing more than 50 people must set up a committee for prevention and protection at work. This would advise and support employees on matters related to their well being.

The request to have a union delegation must be honoured, in line with the conditions laid down in collective bargaining agreements at sector level.

The Christian labour union is now proposing that a works council is obligatory for businesses with more than 50 employees, and a consultative body with at least two employee representatives for those employing more than 20.

However, the employers’ representatives in the Federation of Belgian Enterprises, advocate strict implementation of the directive, which is only applicable to companies employing at least 50 employees or those with at least 20 employees.

The directive would not oblige social consultation structures in undertakings with 20 employees or fewer. The Federation also believes that a union delegation in SMEs would just be another barrier for thousands of employers who already co-operate with employees in an atmosphere of mutual understanding.

The employers’ federation could, to comply with the directive, accept an expansion of the union delegations’ functions, and the transfer of these to the committee for prevention and protection if there is no union delegation.

Don’t discriminate

Belgium has adopted a new Anti-discrimination Act. The law generally forbids any discrimination on the basis of gender, race, colour of skin, descent, national or ethnic origin, sexual orientation, civil status, birth, fortune, age, religion or philosophy of life, current or future state of health, handicap or physical characteristic.

“Political conviction” or “language” were not included as grounds for claiming discrimination. However, on 6 October 2004, the Belgian Constitutional Court decided that this exclusion is unlawful and that there is no objective and reasonable justification for discriminating against people for either of these reasons.

This decision will undoubtedly have an impact on employment law, for the Anti-discrimination Act applies to all aspects of employment – recruitment and selection, promotion, working conditions and criteria for dismissal.

Denmark

The Danish government has recently proposed two bills to parliament to implement EU directives on discrimination in the workplace and on works councils.

The proposed anti-discrimination bill, put before parliament on 11 November 2004, adds disability and age to the existing prohibitions of discrimination on the grounds of race, sex, religion, faith, skin colour, ethnic origin, political persuasion and sexual orientation.

The most wide ranging effects of the bill concern handicap since, under certain circumstances, this obliges businesses to take measures to give employment opportunities to disabled employees or disabled prospective employees.

The bill prohibits both direct and indirect discrimination and this broad prohibition, coupled with the lack of any definition of “disability”, means that the Danish judiciary, and ultimately the European Court of Justice, will have an important part to play in clarifying the scope of the bill.

Works councils

The bill on works councils, also put before Parliament on 11 November 2004, requires certain companies to institute works councils made up of employee representatives who must be consulted and kept informed about significant company decisions and developments.

It is unlikely to have significant ramifications for the Danish labour market as the general agreement between the Danish Confederation of Employers and the Danish Confederation of Employees already includes provisions on information and consultation. Further, the bill only proposes mandatory works councils for companies with 35 or more employees and since most Danish businesses are small or medium-sized, many will be unaffected.

Germany

On 1 January 2005 a new Immigration Act came into force in Germany. In the light of continued high unemployment, this retains a relatively restrictive approach, with some exceptions for highly qualified immigrants and those who wish to set up their own business in Germany.

The act brought in more significant changes in procedure and integration measures.

It introduced a simplified two permit system: the fixed-term residence permit; and the indefinite permit to settle. Rather than the applicant having to file two separate applications with two different authorities for residence and work permit, applicants now file one application with the Foreigners’ Authority which then liaises internally with the Employment Authorities.

The Act obliges all new immigrants to participate in an “integration course” covering basic language tuition and an introduction to the German legal system, culture and history. Failure to do so can have an effect on state benefits.

EU citizens no longer have to apply for a residence permit, but now register residence in the same way as German citizens.

But, with the exception of those from Malta and Cyprus, citizens of the new member states do not yet have full freedom of movement.

France

Case law has recognised the concept of moral harassment, but legislation to prohibit it in the workplace was implemented in 2002.

The French definition clearly links moral harassment to health. The Labour Code strictly defines moral harassment as repeated acts, even where unintentional, aimed at, or actually degrading, working conditions, which are capable of undermining the employee’s dignity, altering their physical or mental health, and jeopardising their professional future. A single act cannot be considered as moral harassment.

The same definition has also been introduced by the criminal code, sanctioning harassment with a fine of 315,000 and one year imprisonment. In criminal law intention must be proved, which places a higher burden of proof on the claimant.

A recent case before the French Supreme court recognised for the first time that an employee had been morally harassed. The company withdrew a saleswoman’s company mobile phone while she was on a fixed term contract.

Her manager forced her to present herself in his office each morning, where she had to carry out tasks which did not fit her job description. The employer failed to come up with any plausible explanations for these requests and the employee had a medical certificate from her GP stating that her work caused her depressive state, resulting in several periods of sick leave.

This decision clarifies the test, without softening the burden of proof placed on the claimant.

Italy

Secondment was defined for the first time in Legislative Decree, 276 03, Article 30.

This says that a secondment takes place when an employer, temporarily puts one or more employees at the disposal of another employer to carry out a particular job.

It also sets out the following qualifying conditions:

  • the placement of the seconded employees at the new organisation
  • the job for which they are seconded must be completed at a different employer
  • that it is in the interests of the employer to second the employee
  • the secondment must be temporary
  • a specific job must be completed.
The consent of the employee is only necessary if there is a change in job description or employee’s assignment.

There are also rules laid down governing secondment of groups of employees.




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