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Lecture 7 notes Comparative Labour Law
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Comparative Labour LawLecture 7
Part 1 – Europe
Dismissal law is at the heart of labour law
⮚ Also includes insufficient wages, poor working conditions etc.
The philosophical background of dismissal law
● In the 19th century: the concept of contractual freedom
o Meant: both parties could terminate the employment contract at will: that means at
any time for any reason.
● In the 20th century: the idea of the Welfare State was getting more priority
o Meant: more emphasis on job protection.
● In recent years a new philosophic creed favours a shift from job protection to employment
protection (‘employability’)
The philosophical background of dismissal law
● National dismissal law shows a differentiated picture:
o BE, DK, UK still overwhelmingly inspired by the first and the third orientation
o DE, NL overwhelmingly inspired by the second orientation
o Several Member States: a mixture of these philosophical orientations
● What role do international sources play in this field?
o Modest
o However, although nowhere in reality employment protection has increased, job
protection has diminished
▪ In several western and southern European countries this happened during
the first 2 decades of this century
● Either by outright widening of the possibilities for dismissals and a
reduction of its costs
● OR by inserting possibilities to derogate from these rules
● OR by expending possibilities to circumvent these conventions by
flexible forms of contract
o Evident in eastern Europe, where disappearance of
communist rule has opened door for diminishing of existing
strong job protection although this development went slow
and gradual
o All developments have resulted in law on dismissal which varies greatly from one
m.s. to another
o All EU countries area characterised by a strongly divided labour market
▪ On the side where open-ended contracts prevail: still substantial job
protection
▪ Other end of labour market with all sorts of flexible labour relations: job
protection is poor
o Dismissal law is by no means homogenous across Europe
o Most countries only have control after the event (a posteriori control), while a few
countries also have control before the event (a priori control)
o However, the contract of employment can also come to an end by other ways
▪ Principle alternative modes of termination are:
● By mutual agreement of the parties
● By operation of the law
o Expiration of fixed term contract
, o Realisation of a set condition
▪ In no EU country, dismissal law is applicable to ALL workers 🡪 all countries
have special rules set e.g. for pregnant women, sailor men, etc.
Termination by mutual consent
- Is the habitual way of termination by the employee 🡪 employers realise it cannot reasonably
oppose the resignation of the employee, and will put up with it as long as the employee will
abide to the set rules (e.g. term of notice)
- This is less evident when termination done by employer 🡪 employee may choose to oppose it
o By consenting to resignation, in many countries the employee might lose the right to
unemployment benefits, and the right to fight this in court
o Employer might give termination bonus to entice them to still accept this
- Must in general rule be in writing
Dismissal by mutual consent:
● Normal in case of resignation by employees
● Increasingly used by employers suspicion by the courts
Termination by operation of the law (ipso jure)
- In all EU states it’s possible that contracts are terminated by operation of the law
o Means its terminated automatically; no notice needs to be given, no severance pays
needed, etc.
- 1980’s; new mantra 🡪 better fixed term contract than no contract at all
- Restrictions on fixed term contracts: Directive by EU 1999
o 1999/70/EC
▪ Equality with workers both permanent and non-permanent staff
▪ Member states may restrict use of fixed term contract by e.g. limiting the
amount of fixed term contracts or by issuing a good reason why a fixed term
contract was needed (see syllabus)
Termination by operation of the law:
● Normal in case of fixed term contract limitations in law
● In various exceptional cases critical view by the courts
o Des of employee
o Nullity of contract (e.g. due to other factors)
▪ Long term disability
▪ Long term imprisonment
▪ Bankruptcy
o Long term illness is not always a valid reason in many countries
● Sometimes there are specific conditions written in the contract that may cause automatic
termination of the contract
o E.g. pregnancy, marriage, illness; can only be allowed if they are reasonable and
functional
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