Introduction
A recent report publicised in the UK press suggested that employees in England and Wales have fewer public holidays, and yet work longer hours, than the employees of any other European Community member state. Reports such as these tend to encourage debate as to which European countries are, or are not, "employee-friendly". Yet our experience in editing "Butterworths Employment Law in Europe", published May 2001, has indicated that there are any number of factors to consider in assessing that question, and that the answers may not be as straightforward as one might initially think.
European Integration?
European Community law has, undoubtedly, had a major influence on employment law and social policy in England and Wales (particularly since the acceptance by the UK in 1997 of the Agreement on Social Policy, sometimes referred to as the "Social Chapter" of the Maastricht treaty). However, significant differences remain throughout the member states, which can be explained by a number of factors, including differences in domestic implementation and interpretation of EC law, political and historical background, and cultural differences.
This article aims to highlight by way of example some of the key areas in which such differences occur.
Categories of Employees Although English law recognises certain different forms of working relationships, such as consultants, workers, and employees, it does not distinguish between employees on the basis of social or professional status. The traditional descriptions of employees as "white collar" or "blue collar" sound outdated and irrelevant in today's society of flexible working and dress down days.
Other European countries offer different levels of employment protection to different categories of employee. For example, in Belgium, notice periods depend strictly on whether one qualifies as being a white-collar or blue-collar worker - and the notice period for the former depends (partly) on the level of remuneration paid to the employee. Many employment rights and obligations in Luxembourg may be determined by one's status as a "private" employee (broadly speaking, this means managers, supervisory workers, and office workers) or as a manual worker. In Italy, one is either a "dirigente", a "quadri", or a manual worker. "Dirigenti" are at the top of the professional hierarchy and are entitled to more favourable rights in certain respects under collective agreements than the other categories, but at the same time, are excluded from rights such as the regulation of working time and termination protection.
Maternity Rights
In the UK, there has been much controversy over the issue of parental rights in general and maternity benefits in particular. Our maternity rights scheme, whilst recently simplified, is complex and difficult for most workers to grasp easily. Benefits in the UK have gradually been extended but still fall short of benefits in some other - more family friendly - jurisdictions across Europe. For example, in Italy women are prohibited from working for a period of 2 months before the expected date of childbirth and 3 months after the birth, whereas in the UK, there is a compulsory maternity period of just 2 weeks. Further, Italian parents can take leave from work for a period of 6 months (for each parent) beyond the compulsory period of rest. This is the equivalent of parental leave in the UK (only 3 months), with the notable distinction that Italians receive a payment equal to 30% of pay until the child reaches 3 years of age.
Some other European jurisdictions also have breast feeding leave: for example, in Spain employees (either father or mother) are entitled to 1 hour per day of paid absence from work in order to breast or bottle feed a child under 9 months. The employee can exchange this hour of absence for a half hour reduction in his or her working day.
Whilst we have made much progress in the UK in respect of parental rights, it seems that we have a long way to go to catch up with some other European countries.
Discrimination
This is a key, and expanding, area of English employment law, and one would expect it to have the same degree of emphasis in other EC member states. However, this is not always the case. Discrimination legislation is relatively new in some countries. In Luxembourg, although legislation introduced in 1981 provided for the principle of equal treatment as between men and women, it was not until last year that legislation specifically outlawing sexual harassment was finally introduced. In Austria, no specific protection is offered against any form of discrimination except on the basis of sex or disability.
Many European nations provide for a general principle of non-discrimination in their constitution or in a civil code; see for example the Portuguese and Spanish Constitutions, and the French Labour Code.
There may also be significant differences in terms of which forms of discrimination are lawful or unlawful. For example, in France it has been ruled unlawful discrimination to dismiss an individual by reason of homosexuality (the same principle is covered expressly by legislation in Denmark and Ireland), whereas discrimination on the grounds of sexual orientation is not unlawful under English law. Other countries may offer specific protection against discrimination on the grounds of religious belief, political belief, and even age or membership of the travelling community, areas that are not currently covered by English law. Protection against discrimination on the grounds of pregnancy or maternity is commonplace, but does not generally extend in other countries to the protection of part-timers.
Remedies for unlawful discrimination may also differ significantly; for example, in France, certain acts of discrimination may lead to criminal sanctions including imprisonment. In Italy, any dismissal or resignation of an employee between the publication of the banns of marriage and the year after the marriage is presumed to be in violation of anti-discrimination legislation and is therefore invalid!
In relation to disability discrimination, again, the level of protection varies. Many countries operate on the basis of a "quota" system (in other words a certain proportion of the employer's employees must have a disability - see for example Italy, and Luxembourg).
Unlawful discrimination is one of the key areas targeted for new legislation prompted by EC measures. In particular, EC Directive 2000/43/EC (which must be implemented into national law by July 2003) is aimed at the promotion of equal treatment based on race and ethnic origin, and refers to both direct and indirect discrimination as well as harassment and victimisation. The Directive also reverses the burden of proof in discrimination claims. Furthermore, the new equal treatment framework directive (EC Directive 2000/78/EC), recently agreed, is aimed at preventing direct and indirect discrimination on the grounds of religion or belief, and sexual orientation (to be implemented into national law by December 2003), and age and disability (to be implemented by December 2006). It is likely therefore that these measures will encourage a more consistent approach to discrimination protection throughout the relevant member states.
Whistle Blowing
In the UK the Public Interest Disclosure Act 1998 was introduced further to a number of high profile cases, such as that of Dr Andrew Millar, Head of Clinical Research at British Biotech, who was dismissed for blowing the whistle on his employer's activities. In brief, the Act is aimed to protecting workers who make a qualifying disclosure in a protected manner against dismissal or other detriment.
Such legislation is not common throughout the EC, and in fact many other countries have some difficulty in understanding the concept of legislation to protect whistle blowing. Indeed, legislation tends to be aimed at protecting the employer from the employee's disclosure of confidential information. The general view is that an employee is not entitled to take public matters into his own hands and take action against an employer who may even where it may be acting illegally. This may strike UK employees as rather unusual, and quite a lot of use (and abuse) has been made of the Public Interest Disclosure Act since it came into force. However, this is new legislation and previous to this, our position in the UK was the same as across other countries in Europe. At common law, the duty of confidentiality between employer and employee exists in exactly the same way and if an employee does not fall within the tight ambit of the Act's requirements then common law will prevail. Nevertheless, it is interesting to note that in this respect UK law is more protective of employees than elsewhere in Europe.
Employee Consultation
Many other EC countries have a highly developed system of employee representation and collective bargaining. The collective bargaining agreement has a special status as a source of law in France and Belgium, covering key aspects of the employment relationship on a company, industry-wide or national level.
This tendency towards collective bargaining is often partly based on political and social history. For example, industrial relations in Austria are shaped by what is termed "social partnership", based on the need for co-operation between industry and the workforce to rebuild the country following the Second World War. One of the effects of this general attitude is that there are almost no strikes and lockouts in Austria, as both employer and employee associations are opposed to industrial action. This is also reflected in Holland, where industrial action is rare due to the general spirit of trust and compromise that characterises relations between employers and trades unions.
Traditionally, collective employee consultation in the UK has only been required in relation to specific issues such as collective redundancies and proposed transfers of undertakings, and the penalties in respect of failure to consult are limited. There is no general legal mechanism for the consultation of employees on matters that may affect their work, a position heavily criticised following the furore over the future of the Vauxhall plant in Luton and the BMW/Rover debacle last year. In Belgium medium and large companies must elect employee representatives for the purposes of consultation and health and safety issues, a principle found in varying degrees in Austria, Finland, France, Germany, Portugal, and Spain. As well as these measures, some countries notably Luxembourg and Spain also allow in certain circumstances for employee representation on the employer's board of management. These measures are in addition to the requirements of EC member states to implement the European Works Council Directive 94/45/EC, obliging Community-wide businesses to consult with employees on Community-wide issues.
The position in the UK is likely to change over the next few years, with the proposed introduction of a new EC Directive setting out a framework for minimum standards of consultation with employee representatives on issues such as the employer's economic situation, the probable development of employment in the UK, and any employment measures or substantial changes anticipated in the organisation of work or contractual relations. The directive is likely however to be subject to certain constraints as to confidential information, and will not apply to companies employing fewer than 50 staff.
Termination of employment
Many trans-national employers want to know how easy it is to dismiss staff on an individual or collective basis in a different jurisdiction. Although this varies from country to country it is unfair to generalise and say that it is broadly easier or more difficult to dismiss in the UK. Sometimes, it is simply a question of making sure that the correct procedures are adhered to. Whilst these may seem unduly restrictive to an employer unfamiliar with such a procedure, in reality this may be no more than a question of form.
In the Netherlands, dismissals (other than summary dismissal for example for gross misconduct) must be authorised in advance by the Regional Employment Office, with the result that claims for unfair dismissal are rare. The procedure has no formal rules although parties can be heard if they wish. The procedure generally takes about 8 weeks and the employment relationship cannot be terminated without the permission of the Director of the Regional Employment Office. Most unusually for employers familiar with employment law in the UK, a dismissal that has not been authorised through this procedure is null and void.
This sort of prior authorisation is not unique to the Netherlands; other countries share this requirement to obtain prior clearance from an authority before proceeding to dismiss. Whilst it seems cumbersome, if it has the net result of minimising the risk of employment claims after dismissal then arguably it is a helpful process.
Conclusion
Is it possible to identify the most "employee-friendly" countries in Europe? We think that it is impossible to choose an overall winner (or loser depending on who you represent!) in these terms.
There is undoubted scope for further integration in areas such as those described in this article. The pace of integration will be determined by any number of political and social factors, but we found it interesting to note that significant differences still exist in key areas.
For further information please contact Susan Mayne on +44(0)20 7367 2781 or by e-mail at susan.mayne@cms-cmck.com.
