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Termination of Employment Relationships Termination of employment relationships Legal situation in the Member States of the European Union European Commission Termination of employment relationships Legal situation in the Member States of the European Union European Commission Directorate General Employment, Social Affairs and Equal Opportunities Unit D2 Manuscript completed in April 2006 The contents of this publication do not necessarily reflect the opinion or position of the European Commission, Directorate-General for Employment and Social Affairs. This document is available in English only. -2 - EXECUTIVE SUMMARY 1. This synthesis report aims at providing an usually dispensed from giving notice in the overview of the legal situation as regards event of dismissal on grounds attributable termination of employment relationships in to the worker, summary dismissal or in the the 15 Member States of the pre- event of force majeure and during the enlargement European Union1. The report probationary period. updates the original 1997 Report which was the fruit of co-operation between the The legal arrangements governing complete Commission and the Member States; the or partial failure to comply with the notice information set out in the original report period also vary from one Member State to was assembled on the basis of contributions another: the tendency in most Member from the Member States and they States is to provide for payment of a sum subsequently checked its accuracy. This equal to the remuneration the worker updated report adheres to the format and would have received during his or her structures of the original report and is based notice period. on the information provided by the national experts named in the introduction. Verification of grounds 2. Labour law across the EU-15 has gradually 5. In all the Member States the wish of the introduced limits to ad nutum dismissal that employer is no longer sufficient in itself to is summary, unjustified dismissal in the justify dismissal. All the legal systems context of a contract of indefinite duration. provide, through various means, for checks on the grounds underlying the decision to Sources of law on dismissal dismiss. 3. The main source of rules on individual 6. First, dismissal on certain grounds is dismissals in most Member States is the law prohibited. These grounds are set out in in the broad sense. Collective agreements tables 1(a) to 1(c) in Appendix II to the are most frequently used to adjust the report. statutory provisions on periods of notice or dismissal on disciplinary grounds, for Another means of preventing arbitrary example. The role of judge-made law, dismissal used by certain Member States is especially in the interpretation of laws, is the so-called technique of abuse of law also important. The role of custom is, on which the worker may invoke; the whole, relatively limited. consideration is then given to whether the grounds for the decision to dismiss were The Notice Period well founded. In practical terms this technique is really no different from the 4. A first limit on freedom to dismiss is the requirement to give notice or to justify period of notice which applies in all the dismissal. Member States. 7. In principle, the rule that any unjustified There are major differences in notice dismissal is unlawful is to be found in all periods in the Member States as shown in Member States. table 3 of the report. The employer is The Member States provide for exceptions 1 Studies on the legal situation in the Member States to the need for grounds for certain groups that joined the EU in 2004, as well as Bulgaria and of workers or during the probationary Romania are on-going. A synthesis report will be period. Some Member States have lists of published in the beginning of 2007. - 3 - reasons which can justify dismissal, but The burden of proof there are big differences in the scope for determining them. Most legal systems have 11. In most Member States the burden of proof opted for a general clause. A distinction is is incumbent on the employer, which is in usually made between the types of grounds line with the reasoning behind the on the basis of the three types of dismissal arrangements for justification or grounds outlined in the report1. for the employer’s decision to dismiss. The formal requirements The effects of unlawful dismissal 8. The need to justify and provide grounds for 12. As for the effects of unlawful dismissal, the dismissal is often linked to formal report illustrates the major disparities requirements in many Member States. between the Member States. Reference Written notice of dismissal is provided for should be made to tables 5(a), 5(b) and 5(c) in most Member States. Similarly, for payments and benefits and also to table provision is frequently made for the 6 on restoration of employment. requirement to notify the grounds for dismissal in writing. The trend is to allow In most Member States, violation of workers to know why they have been fundamental rights renders the dismissal dismissed and to give them the right to be null and void; the worker is then reinstated heard and express their views. or the contract pursued. Although some legal systems do provide for possible Ultima ratio compensation, the Member States appear to agree that prohibited dismissal should not 9. The ultima ratio rule plays a role in several be translated directly into pecuniary terms. Member States; dismissal becomes the employer’s final solution. This presumes “Contrived resignation” that alternatives to dismissal have been envisaged. 13. Some legal orders recognise the concept of “contrived resignation” or constructive Legal redress dismissal that is indirect dismissal based in particular on fraudulent moves by the 10. All the Member States have rules on the employer obliging the worker to resign; by right to take action against dismissal. covering up the dismissal the employer evades the legal arrangements which should Some Member States encourage have applied. conciliation and arbitration. In most Member States, trade unions may provide This concept is unknown in a number of assistance to their members or act on behalf national systems and where it does exist the and in place of their members. related legal arrangements are also somewhat disparate. It gives rise to major Deadlines for challenging dismissal or for difficulties in relation to the burden or taking legal proceedings vary considerably proof. from one Member State to another. 1 They are: dismissal based on misconduct by the worker (disciplinary dismissal), dismissal based on the worker’s incapacity and dismissal based on objective grounds (economic dismissal). - 3 - TABLE OF CONTENTS 1. INTRODUCTION............................................................................................................................. 6 2. SOURCES OF LAW......................................................................................................................... 7 (1) Constitutional status of the rules on the right to work.................................................................. 7 (2) International Agreements and Conventions.................................................................................. 7 (3) Sources of law and their hierarchy ............................................................................................... 8 (4) Role of Judge-made law and custom.......................................................................................... 13 3. SCOPE OF THE RULES GOVERNING THE TERMINATION OF AN EMPLOYMENT RELATIONSHIP, SPECIAL ARRANGEMENTS ..................................................................... 14 (1) Ways of terminating an employment relationship...................................................................... 14 (2) Exceptions or specific requirements for certain employers or sectors ....................................... 16 (3) Exceptions or specific requirements for certain types of contract.............................................. 19 (4) Exceptions or specific requirements for certain categories of employer.................................... 22 (5) Exceptions or specific requirements for certain categories of employees.................................. 24 3.1 MUTUAL AGREEMENT.............................................................................................................. 28 (1) Substantive conditions................................................................................................................ 28 (2) Procedural requirements............................................................................................................. 28 (3) Effects of the agreement............................................................................................................. 29 (4) Remedies .................................................................................................................................... 31 (5) Vitiating factors.......................................................................................................................... 33 (6) Penalties...................................................................................................................................... 33 (7) Collective agreements................................................................................................................. 33 (8) Relations to other forms of termination...................................................................................... 33 3.2 TERMINATION OTHERWISE THAN AT THE WISH OF THE
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