ECJ: When should redundancy consultation commence?
The European Court of Justice (ECJ) has published its decision in a case concerning the timing of collective redundancy consultations.

The Finnish Supreme Court sought clarification from the ECJ about the correct interpretation of the EU Collective Redundancy Directive (98/59/EC). The directive states that "where an employer is contemplating collective redundancies, he shall begin consultations with the workers representatives in good time with a view to reaching an agreement" (Art 2.1). However the Finnish Court were uncertain as to whether this consultation should occur when the employer started considering collective redundancies, or whether it should occur once the employer had prepared all the necessary documents that the employee representatives would need in order to be able to negotiate.

According to the ECJ the consultation period should occur as soon as there is the prospect "of strategic decisions or of changes in activities which compel the employer to contemplate or to plan for collective redundancies". Furthermore, in group companies "it is always for the subsidiary, as the employer, to undertake consultations with the representatives of the workers who may be affected by the collective redundancies contemplated and, if necessary, itself to bear the consequences of failure to fulfil the obligation to hold consultations if it has not been immediately and properly informed of a decision by its parent company making such redundancies necessary."

In other words, under the collective redundancies directive, the immediate employer is required to begin consultation from the outset and provide necessary information to representatives as and when it becomes available. (Akavan Erityisalojen Keskusliitto AEK ry and ors v Fujitsu Siemens Computers Oy. Case: 44/08.)

Italy: Parliament approves tax amnesty
Parliamentary approval has been gained for a controversial tax amnesty bill proposed by the Italian government.

The amnesty involves charging a five percent fixed penalty for those who declare their foreign savings. Under a separate vote the senate has approved an amendment extending the amnesty to shareholders in foreign companies and giving immunity against criminal charges for false tax statements and falsifying accounting documents. The repatriation of funds following fraudulent tax declarations will not be permitted, however, for individuals or companies who had tax investigations pending against them prior to 5 August 2009.

The Netherlands: Private partial disability schemes better option
The Dutch government has given companies more time to decide whether to opt into the state partial disability insurance scheme or switch to a private insurer. The original deadline was 1 October 2009, but this has been extended by one month.

Private schemes are currently charging around 0.3 percent of gross remuneration for partial disability insurance, but the state scheme is charging premiums of 0.59 percent of gross pay for small enterprises, with only a slight discount for larger enterprises. All schemes must be fully operational by 1 January 2010.

UK: Rise in redundancy claims
The UK's Office of National Statistics has reported a 26 percent increase in employment tribunal claims so far this year, with 220,000 people losing their jobs during the period June – September 2009. The majority of these claims are linked to redundancy, with an 80 percent increase in cases brought due to failure of an employer to consult on redundancy pay, an increase of 38 percent in claims for erroneous redundancy payments, and an increase of 25 percent for breach of contract.

Employers are advised to follow the correct procedures when carrying out dismissals and redundancy procedures in order to avoid such claims. Moreover, on 1 October 2009 the upper limit for statutory redundancy payments in the UK is set to rise from GBP 350 (EUR 401) per week to GBP 380 (EUR 436) per week.

Other European news in brief

Denmark
The Danish High Court has decided that a single instance of uncertified absence from work is not sufficient for an employee to be summarily dismissed. The court maintained that a warning must first be given and a summary dismissal may then only take place if the incident occurs again.

Finland
The Finnish government is considering the introduction of legislation that would allow all shops to open every Sunday. Shops are currently only allowed to open on a limited number of Sundays per year. The bill will be debated in the Eduskunta (national parliament) next month and, if adopted, the liberalised regime would be in place from 1 January 2010.

France
The French Court of Appeal has been asked to rule on a small, but important point of dismissal procedure. An employee had been called to a preliminary (disciplinary) interview and subsequently their employer sent them a registered letter confirming their dismissal. However, before the employee had received the letter their employer had notified them verbally of the decision to terminate their contract. The employee challenged the legitimacy of the dismissal on procedural grounds. The Appeal Court stated in its findings that the rupture of an employment contract takes place when an employer acts in a way to end it. This is the date when the letter of dismissal was despatched. The fact that the employee was notified verbally after the letter had been sent did not invalidate the dismissal (Case 08-40395).

Germany
The German labour court in Berlin–Brandenberg has concluded that diabetes mellitus (in particular, type II diabetes) is to be considered a disability. The court affirmed that it was a severe disability, as without monitoring and constant awareness of food intake and lifestyle, the person could become very ill. [Landessozialgericht Berlin–Brandenburg; Case of 28/08/2009 [File number: L 13 SB 294/07]].

Greece
The Greek employment and social protection minister, Fani Palli-Petralia has announced that the government is planning to limit the number of jobs on the 'arduous and unhealthy occupations list'. Employees in occupations on the official list are entitled to higher remuneration than those in otherwise equivalent jobs and are able to retire up to seven years earlier than normal. The General Confederation of Workers in Greece (GSEE) has opposed the move and has warned that it will boycott future negotiations with the government if a revised list is formally approved.

Hungary
Employers in Hungary have rejected a union proposal that the national minimum wage be increased next January from HUF 71,700 (EUR 268) to HUF 80,000 (EUR 299) a month. Unions base their claim on the current official subsistence level of HUF 110,000 (EUR 412) and the fact that changes in employer social security contributions will reduce labour costs next year. However, employers have pointed out that reductions in the lowest personal income tax bracket next year will also increase employee's net pay by 4.4 percent.

The Netherlands
The Dutch government has accepted a proposal by Home Affairs Minister Guusje ter Horst concerning the hiring of temporary directors during maternity leave and long-term illness. A replacement may now be hired during the initial 16 weeks of maternity leave or sickness absence, and should the normal job incumbent not be able to return at the scheduled date, a replacement may be hired for up to two additional 16-week periods.

Macedonia
Average gross earnings from employment in Macedonia rose over the year to July 2009 by 15.5 percent. But the annual increase in manufacturing was just 0.1 percent whilst average gross earnings in this sector stood at MKD 20,789 (EUR 338) in July.

Malta
Malta is one of the first countries to announce that its system of education and training qualifications are aligned to the new European qualifications framework (EQF). The EQF was adopted on a voluntary basis last year by EU member states. National qualifications systems should be linked to this common standard by the end of 2010 and all new qualifications should be formally designated according to eight reference levels (described in terms of learning outcomes) by 2012. Employers will then be able quickly to assess whether foreign qualifications meet the requirements of a particular job.

Spain
If an employer in Spain fails to follow the correct disciplinary procedure (as set out in a collective agreement) and the dismissal is declared by a court as consequently unlawful, they may repeat the dismissal following the correct procedure. According to the Supreme Court the second disciplinary action must commence within seven days of the court's decision, be completed within a "reasonable period" and comply with other terms set out in the agreement.

Switzerland
A Swiss referendum has resulted in a majority vote in favour of a temporary 0.4 percent increase in value added tax in order to overcome a funding shortfall in the state disability insurance scheme. Currently 300,000 people receive disability benefits and there has been a significant increase in beneficiaries during the last ten years, partially due to stress-related problems at work.

Copyright: FedEE Services Ltd 2009