Employment Trends Europe - June 2017


England and Wales - Business protection:

England and Wales - Regulated people:

Upcoming events

Calls and seminars in the upcoming months which might be of interest include:

Further details of breakfast briefings, conferences and telephone conference calls covering developments in employment law are available here.

England and Wales

Working Relations - our quarterly newsletter reviews the most important cases and developments affecting employers in England and Wales.

Recent changes

An overview of changes in employment law in England & Wales over the last 12 months is available here.


Co-determination of the works council regarding Facebook account

A company Facebook account is an important network platform for many companies. The design and concept of social media platforms is a marketing tool and as such perceived as not being subject to the co-determination right of the works council. However, the Federal Labour Court has ruled that a social media site such as a Facebook, where users are allowed to leave comments, could be subject to the co-determination right of a works council.

A co-determination right exists whereby an employer introduces technical devices which could be used to monitor the behaviour or performance of the employees, even if they are not designed for this purpose.

In this case, users started commenting on particular employees of the company so the Court deemed the comment feature as an employee performance monitoring device. Therefore, it should be carefully considered whether users should have the opportunity to leave posts on a social media site of a company. Even in companies without a works council, the comments have to be monitored to ensure that the personal rights of the employees are protected.

Duty to grant holiday

Employees have to file an application with the employer to take leave. In general, holiday entitlements lapse if no application has been filed by the end of the year. Pursuant to case law of the Federal Labour Court an employer is not obliged to unilaterally assign holiday to an employee to preserve the holiday entitlement. However, the Regional Labour Courts of Berlin Brandenburg, Munich and Cologne take an opposing view with reference to the European Working Time Directive which sets forth that an employer has to determine the holiday of an employee. Failing to do so could result in a damage claim from the employee concerned.

The Federal Labour Court is awaiting clarification from the European Court of Justice (ECJ). However, in view of the recent opposing judgments and the strict rules of the ECJ, it is recommended to monitor leave entitlement of employees and ensure they take remaining holiday by the end of the year.


Timing significance of Works Council involvement in employer’s decision making

The Works Council Act (WCA) ensures that every company employing 50 or more people must establish a works council. This means these companies must request the works council’s advice regarding certain contemplated decisions, including:

  • the transfer of control of the company
  • the termination, substantial reduction, expansion or relocation of the activities of the company
  • making major investments or taking out a (major) loan, or
  • the appointment or dismissal of a (managing) director.

The company must submit their proposal to the works council at a time when the works council can still significantly influence the decision to be taken. If the works council is involved in the decision making process too late, there is a risk that the Enterprise Chamber of the Amsterdam Court of Appeal (Enterprise Chamber) could rule that the decision taken by the company is manifestly unreasonable and the company might need to withdraw its decision and repeal specified consequences of that decision.

Recent case law shows that in order to assess whether the company could reasonably have reached the decision, the stage prior to the submission of the actual request for advice is also important. In this particular case the Enterprise Chamber held that the following facts and circumstances were important:

  • the company already knew a few months about the possible proposed decision
  • the company did not hold a consultation meeting with the works council at the moment the possible proposed decision became a sufficiently viable option, and
  • when the advice was requested, the proposed decision was already completely worked out.

Furthermore, the Enterprise Chamber held that these faults in the preliminary stage were not adequately repaired by the company during the consultation process. Amongst others, all alternatives the works council came up with were not adopted in the final decision made by the company. Therefore, the Enterprise Chamber held that there was inadequate opportunity to reconsider the proposed decision of the company, meaning that the works council had effectively no possibility to significantly influence the decision.

Taking the above into account, it is important to:

  • involve the works council in a timely manner and to treat the works council as a full-fledged consultation partner
  • ensure that the company has carefully considered the interests of all relevant stakeholders in its decision-making process, including the interests of the employees and the consequences of its decisions for it employees, and
  • ensure that no procedural inadequacies have occurred (or otherwise will be repaired in a sufficient way).

A recommended course of action for employers would be to:

  • provide sufficient information to the works council along with adequate reasoning in respect of the proposed decision and a proper assessment of alternatives presented by the works council, and/or
  • clearly substantiate the reasons why the advice given by the works council could not (or only partially) be followed.


Supreme Court declares no longer compulsory to maintain daily registry of working hours for employees

The Supreme Court recently overruled a national court judgment whereby a major bank (Bankia) had been forced to record daily working time of all its staff (and not just overtime, as had been customary up to then). This national court ruling had been followed by an intense Work Inspectorate campaign aimed to monitor such working time recording (and ultimately, to look for undercover overtime).

After some months of uncertainty, especially within the Banking Industry, the Supreme Court has issued a number of rulings confirming that monitoring of daily working time is not compulsory, regressing obligations in this matter to how it was before (ie only overtime monitoring is mandatory).

Following these rulings, the Work Inspectorate issued an internal bulletin stating that:

(i) failure to monitor daily working time will no longer qualify as a serious infringement
(ii) companies are still forced to comply with overtime limits, and
(iii) the Work Inspectorate is authorised to conduct inspections regarding overtime only.

Other elexica articles of interest

Emmanuel Macron's key social measures - France, 09 May 2017
Sapin II Law - Whistleblowing systems (Article 8) - France, 28 April 2017
PRA publishes PS7/17 and SS2/17 - expectations in respect of remuneration - UK, 20 April 2017
MiFID2 remuneration regulations - UK, 10 April 2017
Healthcare Trusts - an alternative to private medical insurance - UK, 18 April 2017
Transfers of business - international snapshot - UK, Germany, Italy, Netherlands, Spain - 13 April 2017
Spanish Supreme Court declares it is not compulsory to maintain a daily record of employees' working hours - Spain, 10 April 2017
Employment claims - compensation limits change - UK, 06 April 2017
New rules on temporary staffing - are you compliant? - Germany, 05 April 2017
Employment law changes in April 2017 - UK, 03 April 2017
Insurance Distribution Directive IDD remuneration rules - UK, 03 April 2017 
Changes to German maternity protection - Germany, 31 March 2017
The Gender Pay Gap: What the figures don’t tell you (and what they do) - UK, 30 March 2017
Article 50 Notice has been given - what now? - EU, UK, 30 March 2017
Green Paper: Security and Sustainability in Defined Benefit Pension Schemes - UK, 28 March 2017
More organisations have signed up to the Women in Finance Charter - UK, 22 March 2017
Wearing religious symbols at work - clarification - France, 16 March 2017

This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.