Employee protection – European-style

UK employees have fewer rights than those on the continent. Mark Humphries says this may change.

The draft EU Bill of Rights has generated much comment in the press recently, most notably concerning the impact on our constitutional system. But the danger of overlooking more obvious problems, such as those that arise in the workplace, must not be ignored.

Most of the rights are, in principle, laudable. If, given the force of law, the real difficulties are likely to be in reconciling potential clashes between two or more of those rights.

Despite statements on behalf of the Government that the principles merely set out existing fundamental rights, the interaction of Article 32 (Freedom to Choose an Occupation) and Article 38 (Right to Protection Against Unjustified or Abusive Termination of Employment) suggests that employers may have to overcome far greater hurdles when seeking to dismiss employees.

Although the Government has indicated its intention to resist any attempt to give the Bill of Rights the force of law, how long can this position be sustained if other European governments are in favour of its implementation?

Ominously, Germany has already indicated its support. If Article 38 is to be implemented so that it gives employees "protection", it is seriously out of line with UK law.

How can it be argued that an employee in the UK currently enjoys "protection" against unjustified termination of employment? Of course he enjoys the right in most cases not to be unfairly dismissed, the right to bring a complaint before an employment tribunal and the right to compensation for unfair dismissal, the right to additional compensation for unfair dismissal when the employee wants to be reinstated in his former job or re-engaged in some other position with his former employer.

All this simply amounts to a right for a sacked employee to be paid off. If an employer has no reason to complain about the capability or conduct of the employee and has no legitimate basis for dismissing them, UK law nevertheless allows the employer to terminate the employment contract. This is provided that the employer is prepared to accept the financial consequences of doing so.

"Protection" from unjustified termination surely goes further than the right to receive a cheque if the employer's actions are unjustified. "Protection" implies a right on the part of the employee to continue in his employment if his dismissal would be unjustified. This would be a novel and wholly unfamiliar concept in UK law.

An employee has never been able to get any court or any tribunal to force an employer to carry on with the employment relationship against the employer's wishes. That limitation preserves a fundamental right of employers ultimately to choose their own workforce in order to run their business the way they see fit.

In contrast to the UK, employees in Germany already enjoy a much more elaborate system protecting them from dismissal. A German employer must comply with specific notice requirements and have sufficient reasons for dismissal.

German law recognises that termination of an employment relationship may be required by business needs, such as the introduction of new technology. However, if litigation follows, the standard of proof required to show that the business decision actually necessitated the termination is very high.

The employer would have to disclose all relevant factors on which his economic decisions were based, even if this requires divulging very sensitive information.

There is no sufficient business requirement if the employee could have been transferred to another job within the same plant or within the employer's organisation. If the employer has a choice of whom to dismiss, he must also select the employee who is affected the least severely by the termination.

An employer can be forced by the court's decision to continue to employ someone even if the employer is not willing to continue the employment relationship.

The position in the Netherlands is similar in that an employer can only terminate an employment contract if the grounds for dismissal are reasonable.

The "protection" that Article 38 implies will not seem so unfamiliar to a German or Dutch employer as it might to his British counterpart.

So, despite the UK Government's views, is it possible that the draftsmen of the Bill of Rights intended the rights of employees Europe-wide to be greater than the rights of their employers?

Mark Humphries is head of advocacy and employment litigation at Linklaters and is chairman of the Solicitors' Association of Higher Court Advocates.