Fixed-Term Workers: Protection Against Unfair Dismissal As Well As Abuse

Steve Peers

The increase of atypical forms of run inwards recent years has increasingly been addressed past times European Union measures, inwards item the social partners agreements on part-time in addition to fixed-term work, followed past times a to a greater extent than recent Directive on agency work. The fixed-term run rules own got led to much litigation earlier the Court of Justice of the European Union (CJEU). However, earlier today the Court had non yet had a run a endangerment to address fully the key number of the human relationship betwixt these rules in addition to national police on unfair dismissal. Furthermore, the Court had non addressed the item issues facing academy researchers.

The fixed-term run understanding has ii key provisions: a requirement to ensure equal handling betwixt fixed-term workers in addition to comparable permanent workers, in addition to a restriction on the abuse of fixed-term run contracts. The latter dominion requires Member US to seat inwards house about effective organization to command such abuse, for example past times limiting the total number or duration of such contracts, or past times providing for objective reasons for renewal of those contracts. Member US tin besides own got other measures, such as providing for damages actions, but at that topographic point is no obligation to ensure that fixed-term contracts must survive converted into permanent contracts.

Two judgments today own got addressed the application of each of these rules. First of all, inwards the example of Nierodzik, a fixed term worker whose contract was terminated early on past times her employer, the CJEU ruled that rules concerning let on periods are 'employment conditions' for the purposes of the fixed - term run agreement, in addition to then are thence covered past times the equal handling rule. Assuming that Ms Nierodzik could survive compared to a permanent worker working for the same employer (it was left to the national courtroom to determine this), she was thence entitled to equal handling as regards the let on menses for the final result of the contract (in this example important i calendar month let on instead of ii weeks).

However, the understanding provides for a possible justification of unequal treatment. The Polish authorities argued that the temporary nature of the contract was a justification, but the CJEU rejected this argument, inwards draw amongst prior case-law. The Court besides rejected a bizarre declaration that fixed - term contracts promote stable employment. Obviously, they do only the reverse.

In the instant case, Marquez Samohano, the query arose whether the frequent renewal of a lecturer's fixed term contract constituted an abuse. The CJEU ruled that it did not, because national police restricted such renewals to the example of specialists, along amongst farther conditions. However, the national courtroom nevertheless had to determine whether the exercise of fixed term contracts was inwards fact substituting for permanent needs of the employer.

Comments

The Nierodzik judgment makes a important contribution to ensuring stability of work for workers amongst fixed term contracts. While it does non extinguish the cardinal distinction betwixt the ii forms of contract, it does hateful that during the term of the fixed term contract, the worker inwards regulation has the same protection against dismissal as a permanent worker. Logically this dominion should as apply to the rules on other aspects of dismissal, such as the grounds in addition to procedures for dismissal, the calculation of damages for unfair dismissal, in addition to the calculation of redundancy payments.

In practice, fixed term workers volition frequently have small-scale protection inwards the trial of early on final result of the contract, due to the curt menses of their employment.  However, it is arguable that if their contract has been renewed, the entire menses of the successive contracts must count for the role of applying the equal handling rule.

On that point, the Marquez Samoharo judgment makes it easier to justify the renewal of such contracts. This is dubious on the facts of that case, where the renewal of the contract for 4 years - such frequent renewals beingness mutual inwards the academic basis - sure enough suggests that the renewal was indeed an indication that the fixed term contract was genuinely a agency of satisfying the employer's permanent needs. It would own got been amend if the CJEU had given about indication of the factors which the national courts own got to own got into draw of piece of work concern human relationship when considering this issue, perchance past times analogy amongst the equal pay case-law.


Barnard & Peers: chapter 20

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