Information and Consultation [EU]

Table of Contents

Terms of Employment

The EU has enacted a number of directives designed to keep employees informed of basic information in respect of their employment.

There is a directive which requires that employees be told details of their terms of employment. It applies to all paid employees with a contract of the employment relationship. Some exclusions are permitted for employment relationships not exceeding one month or with a working week not exceeding 8 hours or casual or specific nature employment where there are objective considerations justifying non-application.

Employers must provide basic information in relation to a range of matters including

legal identity of the parties,
place of work,
title, grade, nature, or category of work,
a brief job specification,
date of commencement,
expected duration of a temporary contract of employment,
amount of paid leave or procedures for allocating and determining leave,
periods of notice to be observed by the employer and employee for termination or indicative terms,
basic amounts or other components of remuneration,
the frequency of payment,
normal working hours,
relevant collective

The information must be set out in a written contract or in a letter of engagement or one or more other written documents. The information must be given to the employee within two months of commencement of employment. Saving this, the employee must be given a written declaration signed by the employer.

An employee required to work in another country must be in possession of the information before departure of one of the documents which include the following additional information.

duration of employment abroad.
the currency of payment.
any attendant benefits.

The provisions do not apply where employment abroad is for less than one month.

Any changes in the terms of employment must be recorded in writing. More favorable provisions may be introduced by state.

2019 Revision

Directive (EU) 2019/1152

on transparent and predictable working conditions in the European Union

It aims to improve working conditions by promoting more transparent and predictable employment while ensuring labour-market adaptability. It introduces minimum rights and updates the rules on the information to be provided to workers concerning their working conditions.

The directive contributes to reinforcing Europe’s social dimension as part of the European Pillar of Social Rights roll-out.

The directive is issued in the context of Article 31 of the Charter of Fundamental Rights of the EU which says that every worker has the right to working conditions which respect the worker’s health, safety and dignity, which limit the maximum number of working hours, to daily and weekly rest periods and to an annual period of paid leave. It is also a concrete follow-up of Principles 5 and 7 of the European Pillar of Social Rights.

Who is covered?

The directive applies to those who work more than 3 hours per week over a 4-week period (i.e. more than 12 hours per month) who are bound by an employment contract or in an employment relationship as defined by national law, collective agreements or practice in force in each EU country — with consideration to the case-law of the Court of Justice of the EU. Persons covered could include workers on zero-hour contracts, such as fast-food-chain workers, workers in logistical centres, shelf-stackers in supermarkets, domestic or voucher-based workers* and platform-economy workers, such as on-demand drivers or couriers, provided they fulfil the above criteria defining a worker.

Civil servants, the armed forces or members of emergency and law enforcement services may, on objective grounds, be excluded from Chapter III of the directive (Minimum requirements relating to working conditions).

Employment relationship

Employers must inform workers in writing, and at the latest within a week from the first working day, of the basic elements of the employment relationship, including:

the identity of the parties to the employment relationship, the place of work and the nature of the activity;
the start date and, if it is fixed-term, end date, as well as the duration and conditions of any probationary period;
basic pay, any other component of remuneration, including overtime, and the frequency and method of payment;
the duration of the normal workday or week when the work rhythm is predictable;
where the pattern of work is unpredictable, employers must inform workers of the reference hours and days on which they may be called upon to work, the minimum notice before starting work and the number of guaranteed paid hours.

For supplementary information as indicated just below, the deadline for employers to inform workers is at the latest 1 month from the first working day:

the duration of paid leave;
any training entitlement;
any collective agreements governing the worker’s conditions;
the identity of the social security body receiving social contributions, where this is the employer’s responsibility;
notice periods where the employment relationship is terminated or the method for determining such notice periods;
for temporary agency workers, the details of the user-undertakings (i.e. those making use of the agency workers’ services) when and as soon as known.

Workers relocated (‘posted’) to another EU country or to a non-EU country

Employers must provide relevant documents before departure including at least the following additional information:

countries where the work is to be carried out and its expected duration;
currency of payment;
where applicable, benefits in cash or kind relating to the work assignments;
information on whether repatriation is provided for, and the applicable conditions.
Posted workers covered by Directive 96/71/EC (see summary here) must in addition be notified of, among other things:

the applicable remuneration under the law of the host EU country;
where applicable, any allowances specific to posting and any arrangements for reimbursing expenditure on travel and accommodation costs.
Minimum requirements for the employment contract

The directive sets a number of minimum rights for workers, including the right to:

not have the probationary period exceed 6 months, unless it is in the worker’s interest or when the activity justifies it;
work for another employer outside the established working hours without unfavourable treatment, unless incompatibility restrictions are justified on objective grounds;
for workers whose work pattern is decided by the employer and is entirely or mostly unpredictable, the right to refuse a work assignment outside previously defined reference hours and days without suffering adverse consequences;
request, after six months’ service with the same employer, a job with more predictable and secure working conditions;
receive training cost free, when the employer is required by EU or national legislation or collective agreements to provide such training.

EU countries may allow the social partners to conclude collective agreements which establish working conditions that differ from those referred to just above, provided that the overall protection of workers is respected.

On-demand contracts

EU countries which allow the use of on-demand contracts or similar employment contracts (e.g. gig-economy or zero-hour contracts) must take measures to avoid abusive practices, such as:

limiting the use and duration of on-demand employment or similar contracts;
putting in place a rebuttable presumption* that an employment relationship exists, with a guaranteed number of paid hours based on hours worked in a preceding reference period.
Complaints, redress, protections and dismissals

EU countries must:

ensure that workers who have not received the relevant information in due time have access to at least one of the following two measures:
submit a complaint to a competent authority and receive redress in a timely and effective manner; or
benefit from favourable legal presumptions
ensure that workers, including those whose employment relationship has ended, have access to effective and impartial dispute resolution and a right to redress*;
introduce measures to protect workers from any adverse treatment by the employer and from any adverse consequences resulting from a complaint lodged with the employer;
take measures to prohibit workers being dismissed because they have exercised the rights outlined in the directive.
The directive does not constitute justification for reducing the general level of protection already enjoyed by workers in the EU, and does not prevent EU countries from adopting legislation that is more favourable to workers.

Application & Context

The directive repeals Council Directive 91/533/EEC on Informing employees of their working conditions from 1 August 2022.

It has applied since 31 July 2019 and has to become law in the EU countries by 1 August 2022.

KEY TERMS

Voucher-based worker: an employer acquires a voucher from a third party (generally a government authority) to be used, instead of cash, as payment to a worker providing a service.
On-demand contract: a type of contract between an employer and a worker, such as a zero-hour contract, where the employer is not obliged to provide any minimum working hours, while the worker may or may not be obliged to accept any work offered.
Rebuttable presumption: a presumption that a court holds to be true, unless someone comes forward to contest it and prove otherwise (‘presumed innocent until proven guilty’ is a well-known rebuttable presumption).
Right to redress: the right to ask for compensation.

MAIN DOCUMENT

Directive (EU) 2019/1152 of the European Parliament and of the Council of 20 June 2019 on transparent and predictable working conditions in the European Union (OJ L 186, 11.7.2019, pp. 105-121)

Works Council

EU directive requires the establishment of Work Councils from 2011. The directive seeks to provide for employees’ transnational information and consultation rights. European Work Councils are a procedure for informing and consulting employees in Community-scale undertakings and groups.

All establishments i.e. branches of a business are subject to the requirements of a work council.

The central management of a business or group is responsible for establishing a council or an information and consultation procedure. If a representative is not appointed or the management is not located in an EEA state, it is the responsibility of the establishment or undertaking which employs the largest number of workers within a member state.

The central management must initiate negotiations to establish a European Work Council or employee information and consultation procedure. It must act on its own initiative or at the request of at least 100 employees or the representatives in at least 2 undertakings in at least 2 member states.

A special negotiation party must be formed by employee’s representatives. They may be elected or appointed according to the number of employees in each state where the business is present to negotiate an agreement with management in order to define the operation of the European Works Council and the arrangements for implementing a procedure for information and consultation of employees. The members shall receive the same protection as employee’s representatives as laid down in national legislation.

Transfer of Undertakings

The so-called TUPE regulations derive from the Acquired Rights Directive. This directive is designed to protect the position of employees when a business is sold or transferred.

The transfer itself does not constitute a valid ground for dismissal. Dismissals may occur for economic, technical, or organisational reasons or for categories of worker that are not covered by legislation protecting against dismissal.

Rights and obligations attached to the employment contract are transferred to the transferee when the business is transferred. States may provide that transferor and transferee are both jointly and separately liable for the obligations which arise before the date of transfer.

States may adopt measures to ensure that the transferor notifies the transferee of all rights and obligations that are transferred, insofar as they are known. Failure to notify does not affect the transfer of the rights or obligations concerned.

The terms and conditions in collective agreements must continue to be observed up to the date of termination or expiry of the agreement or entry into force of the substituted agreement.

Unless member states otherwise provide, the continued observation of rights does not apply in relation to old age, invalidity, or survivors benefits under supplementary pension schemes outside the statutory social security schemes. Member states may, however, adopt measures to protect rights conferring immediate or prospective entitlement on employees or persons no longer employed.

Unless states otherwise provide, the provisions do not apply where the transferor is subject to bankruptcy or insolvency proceedings, which have been instituted due to the liquidation of the assets under the supervision of a public authority.