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Lecture 6 notes Comparative Labour Law
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Comparative labour lawLecture 6
Part 1 – EUROPE
For most workers, pay, holiday, leave, non-discrimination etc. are the top issues of their job.
However, in this word of dignity of the worker – the right to decent work – there is more. There’s a
number of rights workers might simply expect from their employers, which are duties for the
employers. They have a duty to care for the employee and respect the privacy of the employee.
However, not only the employers have duties towards the employees; the employees have duties,
which are consequences of the rights of the employers. E.g. the managerial prerogative (managerial
right) which gives the right to adapt the work of the employee. All these duties can be summarized
on the principle of bonafides; a classic principle of all contract law. This bonafides can last both
before and after the termination of the contract.
Privacy
● A fundamental right under Art. 8 ECHR and Art. 8 CFREU.
o Few ECtHR cases, the cases that are there showing balancing approach.
o Courts weigh interest of business against rights of privacy protection of the
employee.
● At EU level only the recent European Data Protection Regulation
o Directly applicable in all member states
▪ Growing interest in privacy of employment relations
● Employers need to select employees better and monitor their
behaviour
● Employees are increasingly reluctant to tolerate employers infringing
on their privacy
● For the rest: national laws on specific items (such as medical examination or alcohol and drug
tests) as well as national court cases (such as on email privacy)
o Visiting 18+ sites
o Medical examinations
o Certain bans from employers
In a capitalist market economy:
● Impossible to instate a legal obligation on state & employers for realisation on the right to
work
o Can only promise that governments will do their utmost to provide adequate
economy
▪ Investments
▪ Subsidies
▪ Providing public employment service
o However; member states of EU are restricted by EU rules on free market in regards
to this
● The management right of the employer
o Employee has to obey employer
o Right of employer to give directives to employee in regards to work is implied in the
contract
o In all countries, employee is bound to observe employer’s orders as long as they’re
within limits of the law, and within principles of reasonableness and fairness
o However: does this include the right to punish disobedience?
● Major source of rules in employment relationships, recognised all over Europe.
, ● However, this right is limited by higher sources of labour law.
● And these limitations are in one country larger than in other countries of Europe.
Modification of the contract of employment
● The contract of employment is a two-sided agreement in principle it cannot be changed
unilaterally
o Can change with change of business
o Change of innovations
o As long as its within terms of employment
o Does this include transferring the employee to another place / another job?
▪ In principle, no
▪ However, management can use their power to change it to some extent
● Management may use its management right but within limits nuances in all European
counties
● Don’t overlook the connection with the law of dismissal
o Employees may feel forced to accept changes on fear of being fired from their job
o Complicated matter; depends on many factors
▪ Collective agreements
▪ Nature of work
▪ Established customs and practices
▪ Nature of contract
o In no country, changes to the essence of the contract is allowed
▪ However, specifications on this depend regarding which country they are in
as well as the circumstances
▪ Workers may have the right to refuse changes; however what if the
employer threatens to dismiss them?
There are multiple ways an employer can enforce the responsibilities of the employee:
Disciplinary action [most important and powerful one]
● Employers may use disciplinary actions against employees that transgress the rules.
o Sharpest form: dismissals
o Lighter forms: warnings, fines, suspension, demotion, etc.
● However, the law is different in the MS about what actions and under what conditions those
actions are possible
o Some countries: legislator has specified clear requirements regarding disciplinary
action against the employee
Bona Fides [reasonableness and fairness]
- In many countries (especially eastern European countries), rights regarding both employee
and employer are laid down in statutory law (legacy of communist era); in western Europe
this is less the case.
- Gaps in legal rules are often filled by principle of bona fides in the law of contract;
reasonableness and fairness; also ultimate value in execution of contract of employment
- Netherlands, Finland and Greece are good example of a correct use of the principle of Bona
Fides
- Several other countries have scepticism against a too extensive use for the use of bona fides
o Germany, UK
- Employee is also under duty to exert reasonable skill and care in performance of their work
- Nevertheless, legislators in all EU countries have taken a lot of these responsibility off the
shoulders of the employee
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