Just over a century ago, horrific employment practices were prevalent across Europe. Men, women and young children worked in mines and sweatshops for 16 hours a day in squalid conditions. The working environment was dangerous and accidents not uncommon. Fires, malfunctioning equipment often maimed and killed the main breadwinners leaving families to starve.
A lot has changed since then – particularly with the introduction of the concept of the weekend. Today, Europeans working full-time spend roughly 30% of their life working. Incidentally, that is the same amount of time they spend sleeping.
So what does it mean to be an employee in Europe today?
Free movement of workers is a fundamental principle of the Treaty on the functioning of the European Union and has since been developed by EU secondary legislation and the Case law of the European Court of Justice. EU citizens are entitled to:
- look for a job in another EU country
- work there without needing a work permit
- reside there for that purpose
- stay there even after employment has finished
- enjoy equal treatment with nationals in access to employment, working conditions and all other social and tax advantages
The above is generally uncontroversial and is practiced throughout the member states on a daily basis. For instance, I am Swedish, but went to university and law school in London. I pay my taxes and national insurance contributions in the United Kingdom and I am registered as “emigrated” with the relevant Swedish authorities. Broadly speaking this means, I enjoy the same rights as a British citizen, save for voting in national elections. My job market is in theory not confined to Sweden or the United Kingdom. I am effectively competing for jobs with the working population of the entire European Union. I say in theory because my line of work does come with some inherent restrictions on the ability to practice in different jurisdictions which has in turn generated further Directives and case law. However, there is at present nothing that stops me from applying for a job in Sweden and provided that someone is willing to hire me, go through the motions of three years of practice and then an aptitude test before applying to the Swedish bar. Similarly, here in the UK a Swedish lawyer can become a Registered European Lawyer or take the Qualified Lawyers Transfer Test.
Say what you like about the European Union but the principle of free movement of workers is something they actually got right.
We now have European citizens moving freely across member states and numerous efforts have already been made to streamline the employee rights of EU citizens. For instance, the respective Directives dealings with statements of particulars of employment, prohibition against discrimination or harassment in employment, working time, business transfers, and rules in relation to mass terminations or collective dismissals have largely been implemented across member states. The key word here is implemented as opposed to directly pasted into domestic legislation. This means that there is still scope for many quirks and differences.
However, the European Directive of 14th October 1991 (‘1991 Directive’) aims to ensure that the bare minimum for employment terms is reduced into writing. For instance, in the UK within 2 months of employment an employer must provide the employee with their written statement of particulars of employment to include a set of information set out by statute.
If an employer fails to provide this statement, provides an inaccurate or incomplete statement or does not provide an employee with a statement of changes, an employee may make a complaint to an Employment Tribunal.
Where an employee has no other successful substantive claim, the only remedy will be a declaration from the Employment Tribunal either confirming the particulars as they stand, amending them or substituting others as it thinks appropriate.
Where the employee has a successful substantive claim, in addition to a declaration of particulars of employment, the employee may also be eligible for compensation if the Tribunal finds that at the employer was in breach of its duties. The additional compensation will, unless there are exceptional circumstances, be two or four weeks’ pay.
The requirement of a written statement of particulars outlining the terms of employment can be found in other member states as well. These are all variations of implementation of the European 1991 Directive which requires employers to provide a written agreement with the essential terms of the contract, such as the names of the parties; the place of the work; the job position; a brief characterisation or description of the job position; the starting date; for fixed term contracts, the term of the employment; the duration or, if not possible the terms and conditions of annual leave; the duration, or if possible, the terms and conditions of the notice period; the amount and components of the compensation; the daily or weekly working time; and applicable collective bargaining agreements.
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France has its own interpretation of this directive. In France, a written employment contract is mandatory when an individual is hired as a temporary employee or is hired on a fixed term or part‑time contract. Non-competition covenants are also required to be writing. A written employment contract is not strictly required under French law in all of the cases, although it is recommended for evidentiary reasons. |
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In Germany, the statutory law requires only that employment contracts with temporary workers and those parts of contracts relating to fixed terms and post termination covenants not to compete be in writing. Nevertheless, written employment contracts are best practice. Like other jurisdictions having a written contract of employment is a way of ensuring that you are complying with the written summaries of essential terms of the employment relationship and in Germany this has to be done within one month of commencement. |
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In Italy, there is no requirement for written employment contracts. As with other countries however to be valid certain conditions must be in writing, such as probationary period and any fixed term and non-competition clauses. Interestingly enough on the other hand agency contracts must all be in writing. The obligation in relation to what has to be reduced into the bare minimum, in Italy it only requires an employer to inform the employee within 30 days of starting a new employment of roughly the particulars that are set out in the directive above. |
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In the Netherlands, an employment contract can be agreed orally and does not have to be in writing. Nevertheless, the Netherlands has also implemented a directive and an employer is obliged to provide the employee, within a month of the entry date of the employment, roughly the same information as discussed above, save for whether the employment contract is a secondment contract and whether social security legislation in the Netherlands was to be applicable for people working outside of the Netherlands. |
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In Poland an employment contract should be made in writing and should indicate at least the minimum particulars of employment. If an employment contract has not been made in writing the employer should, not later than on the date when commenced, confirm to the employee in writing the details of the parties, the type of contract, terms and conditions of employment and remuneration. In addition, the employer must inform the employee in writing about the basis terms and conditions of employment that apply to the employee not later than 7 days after the employment contract was entered into and about any changes in those conditions. Although this appears to be slightly different than what’s been laid down by the directive, it is fairly similar. |
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In Romania the individual employment agreement must be concluded in writing, based on the parties consent. The written form represents a prerequisite for the validity of the agreement. Prior to concluding the employment agreement, the employers are required to inform each employee of the general clauses to be included in the agreement. The compulsory terms are fairly similar to the ones set out above. |
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Spain is one of the exceptions. In Spanish employment law, the principle of oral contracts governs except as provided by fixed term agreements. |
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In Sweden, an employment contract does not have to take any specific form. However, as Sweden have implemented the Directive, employers are still under an obligation to inform employees of the conditions applicable to the contract or employer relationship. The employer must also provide certain information in writing concerning the principal terms of the employment. This information must be provided to the employee within one month from their commencement of the employment. These particulars are roughly the same as set out in 1991 Directive. |
Having considered how the 1991 Directive has been implemented across Europe it still amazes me how many employers still have no written framework whatsoever. There were 191,541 claims accepted by the Employment Tribunal Service in the financial year 2012/13. Many of these arose from inadequately documented employment contracts or a failure to follow proper employment procedures and laws.
Disgruntled employees could still put their employers through defending an Employment Tribunal claim (however weak, scandalous or vexatious) to the tune of an average of £9,000 in legal fees. I think that drawing up standard employment contracts will be a lot cheaper than that.
Sofie speaks fluent Swedish and Chinese and graduated with a Chinese & Politics honours degree from School of Oriental and African Studies in 2005. She then spent a few years living and working in China before returning to the UK to qualify as a solicitor. In her free time she enjoys scuba diving, boxercise, running and travelling.
She can be contacted at +44 (0)1273 204411 or by email to sofie@engleharts.co.uk
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