In the perspective of examining closely the discipline of individual and collective dismissals in some European countries (Britain, France, Germany, Italy, Spain), a necessary starting point is certainly to analyse the sources of that protection, with a special reference to the role of collective bargaining. After a brief overview on this topic, we will try to focus on the field of application, a very notable matter in order to understand the effective significance of protection against dismissals.
A) SOURCES
It can be easily realised that the subject of the sources is a very wide one, as it concerns the basic structure of every legal system. Since it is impossible to explore here all the profiles related to the several kinds (and value) of the sources in the various European countries, we will speak in very general terms, trying to focus our attention on the sources in the protection against dismissals .
Broadly speaking, it has emerged from our discussion that even though it is possible to notice the same kinds of sources regulating the employment contract in EU countries, they have different meaning and different weights in every State.
The basic distinction in this sense is between the civil law and the common law legal systems. As a matter of fact, while in the first ones there is a quite well defined hierarchy between sources, this is not so clear in the British legal system.
As far as the employment contract is specifically regarded, a very general distinction could be marked between legal sources, such as Constitution, EU law and international conventions (e.g. the ILO conventions), ordinary law, and extra-legal ones, such as collective agreements, individual contracts, and managerial prerogatives. Furthermore, we have also to consider the relevance of case law (a proper legal source in UK, in a very wide sense an extra legal source for the civil law systems, in the sense that we will explain below) and customs (with a special reference to the Codes of practices and managerial prerogatives in Britain).
Being impossible to analyse deeply every single source, our aim will be to clarify which are the interlinking between them, pointing out the relationships between law and collective agreements, law and individual contract, law and case law.
(i) Previously, we observe that usually Constitutions provide the "right to work" as a basic right for citizens (e.g. art.1 and art.4 of Italian Constitution), not including directly any reference to dismissals. Nevertheless, in some countries (such as Germany) there is a trend to interpret the provisions concerning labour law on the light of those principles. In Britain, lacking a "real" constitution (apart of the Human Bill of Rights, near to the issuing, that will apply the European Convention on Human Rights), the EU laws constitute the main reference for certain workers´ basic rights (health and safety law, sect.100 Employment Rights Act, ERA, dismissal on the grounds of pregnancy and maternity, sect. 99 of ERA etc.).
However, it has to be recognised that all over Europe statute law (legislation) is the primary source providing protection against dismissals, followed by collective bargaining (to be considered as a subsidiary source).
Before going further, it could be helpful to make a brief overview on the legislation about dismissals in the considered countries. In Britain, after the 1971 Industrial Relations Act, as amended and modified in 1975, the last statute about dismissals is the 1996 Employment Rights Act; nevertheless some rules concerning collective dismissals are laid down in the 1992 Trade Unions Labour Consolidation Relations Act, TULRCA, (sect.188). The most important German provisions are contained in the BGB (civil code), BVG and in the 1951 Act on protection against dismissal, as reformed in 1986. The Spanish main source is the "Estatuto de los Trabajadores", which, differently from other countries' statute laws, specifies in details the causes of unfair dismissal; the 1994 reformation has abolished the administrative authorisation for dismissals and had strengthened the role of collective bargaining. The most important French provisions were issued in 1963, 1975 (legislation on licenciement pour motif économique; introduction of the prior administrative authorisation, later abolished in 1986), 1986, 1989, 1992, 1993. The general rules on dismissal for economic reason can be found in the Code du travail, L. 321-1. In Italy the provisions of the 1942 Civil Code have been later integrated with the following acts: l. 604/1966, art. 18 l. 300/1970 (which contains the fundamental rule on reinstatement), l.108/1990 (introduces a different protection for small enterprises), l.223/1991 about collective dismissals.
(ii) Examining the relation between law and collective agreements, the main problem that arises is the binding force of the latter, reached by statutory mechanism in some countries, by academics theories and case law in Italy, lacking of any formal force, legal or contractual, in Britain (but founded mainly on the incorporation doctrine when applied).
The problem of the value of collective bargaining is nowadays accentuated from the general crisis of representativity of trade unions, standing a general trend of a diminution of unions density due to different causes (changes in the composition of the working-force, fragmentation of Trade Unions as well as a restrictive legislation in Britain after 1979).
Anyway, it can be hold that, as a general rule, collective agreements can usually just derogate in melius to statutory provisions. Some particular cases can be found in British, Italian and French legislations. Sec. 110 of British ERA provides that, if a dismissal procedure agreement - which provides benefits at least equivalent to the statutory provisions of the Act - is applied, the employer is exempted from observing the legislation on unfair dismissal. Very peculiar rules concerning collective dismissals are provided by French and Italian legislation: according to the law, collective bargaining is entitled to reclassify the worker (if he agrees), even in a worse position, in order to avoid his dismissal. In these cases apparently the derogation is in peius if compared with the previous position of the employee, but that evaluation could be different considering that the re-classification allows to safe the employee's job.
About individual dismissals, in Spain the intervention of the collective agreements is limited to fixing higher amounts for compensation respect of the legal standards, as the definition of fair reasons for individual dismissals are clearly laid down in the Workers'statute (e.g. art. 54 for disciplinary dismissals). In Italy collective bargaining has a quite relevant role with reference to the so called "disciplinary dismissals", as it usually identifies the cases in which it is possible to dismiss for those reasons, as the law gives only a very general definition.
However, it is evident that collective bargaining has a much more important role in economic dismissals, with special reference to the collective ones, due to their strong social and collective impact. In this context, attention needs to be drawn mainly to the function of collective bargaining in dismissals procedures.
The employer is essentially free to give effect to a collective dismissal but, according to the Collective Redundancy EU Directives of 1975 and 1992, he is obliged to inform and consult workers' delegations.
In addition to those basic obligations some EU member states, implementing the mentioned directives, have further enriched the powers of collective bargaining.
As a matter of fact, while in France and England information and consultation duties are distinct from a duty to bargain (even though, in Britain, consultation must be undertaken with a view to reaching an agreement), in Italy, Spain and Germany they are usually finalised to a conventional solution and, even if that is not compulsory, it happens in most of the cases. In Spain the work council plays an effective role, strengthened by the 1994 reformation, in the collective dismissal procedure, in particular contributing to the definition of the social plan; in Germany, according to the principle of co-determination, the trade unions are seriously involved in the collective dismissals; in Italy the employer has several incentives (also of economic nature) in order to conclude the collective dismissals procedure with an agreement with the trade unions. It has also to be remarked that in Italy collective agreements have the possibility to individuate the criteria for selecting redundant workers, law applying only in lack of conventional provisions.
In other terms it could be said that in the above mentioned states -more than in others- legislation efficiently encourage the collective bargaining to co-operate in finding, if possible, a collective solution to the redundancy.
In France the mechanism of representation (so called "double channel") determines a very complicate procedure, since, according to the legislation, the employer has to inform and consult the comité d´entreprise (an elective body not necessarily linked with the representative trade unions) and, in case, the negotiations for an agreement (often for measures alternative to dismissals, such as working time reductions) have to be conducted with the trade unions delegates, dèlègués syndacal, with the only requirement of a formal communication to the work council before signing the agreement. The consequence is that it has been held (but it is very controversial) that it could even be made only an agreement with the trade unions, without involving the work council, in that case considering the duty of consultation and information being performed.
In Britain from 1995 the employer can choose -in a context of a collective redundancies procedure- to consult recognised trade unions or elective representatives elected for this special purpose (ad hoc). This aspect is related to the right conferred to the employer (after the so called "deregulation") to recognise at his will the trade unions. Nevertheless, a new law is probably being passed in the next months according to which the employer will be bound to consult the recognised trade unions if they are present in the establishment.
(iii) About the relationship between law and individual contract, the general principle in European dismissal legislation is that it is not possible to derogate to statutory provisions with an individual contract, for the reason that protection against dismissal is a fundamental right in labour law legislation.
The only relevant exception to that rule is provided by the British legislation. In fact, as in Britain the expiry of the term in a fixed term contract is considered as a dismissal, the employee employed for two years or more, on the grounds of sect.197 of ERA, can exclude in writing the right to a redundancy payment in case of no renewal of the contract. The reference to the two-year term is explained with the circumstance that no protection (with the exception of automatically unfair dismissal) applies before 2 years of service in any case. Anyway it is important to clarify that the worker does not waive to all his rights, but only the one to claim for compensation.
(iiii) Going further to the case law, it is plain that his role is clearly different in Britain from other EU countries, since in the former it is a source of law in a proper sense.
Anyway, aside this consideration, some very interesting common trends come out from the comparison of the various systems.
First of all, as the protection against dismissal usually covers only employees (and not independent workers), the jurisprudence, qualifying the employment relationships -when this is not clearly made by the law itself- contributes to define the field of application of legislation about dismissals. From our analysis it emerged that in European countries, after a long period began in the 1970s of progressive extension of the notion of "subordination", nowadays there is an evident tendency in the opposite sense.
Furthermore, as the band of workers excluded from that protection tends to enlarge (also in consideration of the increasing numbers and kinds of atypical workers), it has being asserted by several Courts in different countries that for non-protected workers the dismissal, even if has not to be justified, cannot be arbitrary or unreasonable.
The judiciary interpretation has also notably contributed to elaborate the notion of dismissal's "justification" . As a matter of fact, in most of the cases the principle of justification is laid down in statutory provisions in very general terms (cause rielle et seriouse in France, L.122-14-3 Code du travail, giusta causa o giustificato motivo in Italy, art. 2119 Civil Code and l.604/1966, reasonableness in Britain, sec. 98 Employment Rights Act); therefore his real content is individuated and specified in practice by case law, which is extremely rich on this point.
Moreover it could be maintained that the case law in some cases "creates" the law (even outside Britain) in the sense that it operates by enriching statutory provisions, even adding further obligations. For instance in Italy and in France the concept of dismissals as extrema ratio (now applied also in Germany) and the obligations for the employer of repechage or reclassament have been introduced by the case law, being not provided in any act.
On this point from our discussion come out that a very interesting debate is in course in some European countries (very important recent decisions occurred in Germany from the Federal Court as well as in Britain, see the Malik case) about the value of the general clause of good faith in employment relationships, even more so significant when the topic of dismissals is concerned. In particular in Britain that notion was introduced in parallel with the developing of the concept of reasonableness, holding that in order to clarify if a dismissal is unfair it has to be ascertained if the employer has acted reasonably. In that case the parameter is the normal use of managerial prerogatives, which is to say that in a certain sense the case law legitimates the standards of managing enterprises.
B) FIELD OF APPLICATION
Statutory provisions usually define the field of application of legislative protection against dismissals.
The most common criteria used by law in order to define if any protection applies are the following:
1. numerical threshold
2. subjective exclusions
3. minimum period of service
4. sector criteria.
1.The numerical threshold comes into consideration in different ways.
About individual dismissals, in Germany no justification is required in enterprises with fewer than 10 employees, while in other countries the coverage is independent from the number of workers. In Italy the number of employees does not determine the field of application of the protection, but the kind of protection that applies to individual dismissals: the prominent consequence of this distinction is that the sanction for unfair dismissal may be re-engagement and compensation (in medium-small establishment with fewer than 15 employees) or reinstatement (establishment with more than 15 employees or at least 60 employees in all the country). Being the option up to the employer, without going deeply (we refer to the following report about sanctions) it is evident that in small enterprises it is much more easy to dismiss even without a fair justification, being the sanction of the compensation of not considerable amount (of course a very few employers choose re-engagement instead of compensation).
In all the European countries the numerical threshold, according to the Collective Redundancy EU Directive 1975\129, is essential to distinguish individual dismissals from collective ones. Nevertheless, enforcing those provisions some member states have modified the numerical reference in a more favourable way for workers. The basic consequence of a qualification in terms of collective dismissals is that the employer has to comply with the obligations of information and consultation.
As we said above (see par.1), some legislations have enriched the basic provisions of the UE Collective Redundancy Directives, trying to encourage collective bargaining in case of collective dismissals.
It has also to be observed that in France the number of employees involved in a collective dismissal causes a further distinction between "small collective dismissal" (concerning fewer than 10 employees) and "big collective dismissal"; only in the last case, if the enterprise has at least 50 workers, the employer is on duty to present a plan social. In practice it means that the employer has to consult the worker representative in order to elaborate economic and social measures. If the social plane is missing the dismissals are null. Moreover a different procedure applies, as if at least 10 workers are going to be sacked a notification to the administrative authorities is required.
In Spain the numerical threshold determine the difference between "plural" and "collective" dismissals: the consequence is the application of a very different procedure, including an administrative authorisation required only in the second case.
As the quantitative dimension of the work force is of considerable importance, particular rules have been elaborated in order to include (or exclude) some workers in that limit: in particular part-time workers are usually counted proportionally with their working time.
2.Referring to subjective workers' features, it has been pointed out that in almost every European country some categories of employees are generally excluded from legislative protection against dismissals. Usually the exception does not operate if the workers are sacked with infringement of fundamental rights.
Before all, it has already been noticed (par. 1) that normal protection applies only to employees and not to self-employed workers. It comes from this circumstance that the case law contributes to define the field of application when the classification is not clear. The uncertain limits of the definition of "subordination" (sometimes referred to an economic dependence, like in France, related to the powers of direction of the employer in the performing of the obligation in Italy) from one hand and the emergence in the last years of new kinds of employment relationships on the other gave rise to new debates between academics and judiciary about the classification of these new workers (among which we include the so called atypical workers, agency workers, zero-hours contracts workers, employee interimaire ect.). They cannot be easily defined employed, since the link with the employer is not strong, but neither self-employed, as they are related in different ways with the undertaking. For these reasons the opportunity to limit the protection only to employees is now being reconsidered, being many drafts at the attention of the various legislatives.
Other particular categories are homeworkers, usually excluded from any protection against dismissals, and managers or executives. If in Italy and in Spain there is no need for them of any justification to dismiss (but the notion of manager is much more narrow in Spain), in Britain even the senior managers are considered as normal workers and therefore protected by the ordinary provisions. In Germany the senior managers are classified as normal employees, with the exception of executives with the power of hiring and dismiss employees, which are considered independent workers.
Until 1996 in Britain part-time workers did not enjoy any protection against dismissals, but this rule was considered an indirect discrimination, since most of the part-time workers are women. Therefore today only the rule on the two years qualifying period applies.
3.In almost every legal system a minimum period of service is required in order to enjoy a general protection against dismissals. The period in which the worker is not covered is normally coincident with the probationary period, which is not mandatory in a contract of employment but it is usually applied. If no probationary period is agreed, the employer can be protected since the beginning of the employment relationship (Italy) or a period of service can be required. In that event we have a sort of "qualifying period", as it is in Germany and in Britain. During the probationary or the qualifying period, however, an employee does normally enjoy protection against dismissal for discriminatory reasons.
Generally statutory provisions determines the maximum length of the probationary period and into that limit the collective bargaining may fix a different (shorter) period in relation to the different branch of activities. The probationary period varies significantly from country to country, determining a relevant difference in protection for workers. In Italy (l. 604/1966), Spain (art.14 Estatuto de los Trabajadores) and Germany it cannot exceed six months. Nevertheless in Germany the qualifying period is of six months.
In Britain that period is much longer, being of two years. Since the same rule applies to fixed-term contract, it is evident that for employees engaged for a limited period up to 23 months no protection applies other than the one for automatic unfair dismissal. The other peculiar rule that applies to this kind of contracts is the one according to which the expiry of the term in a fixed-term contract is considered as a dismissal: the consequence is that the non-renewal of the contract, to be lawful, has not to be connected to unfair reasons.
4.Finally we could consider that some sectors are covered by a specific legislation, as it usually happens for public servants. Nevertheless in almost every European legal system in the last years there is a tendency to equalise that protection to the private sector. Specifically in Italy the legislation concerning collective dismissals, after a long evolution, nowadays applies to almost every sector, with a special social subsidy (indennità di mobilità) sometimes exceptionally financed by the same employers (credit and artisan sector). According to a recent amendment the same protection is now joined from public service.