An assistant nurse in Poland wanted to take early retirement. Therefore, she concluded an agreement with her employer stating that her open-ended employment contract was to be terminated and replaced by a five year fixed-term contract. According to the new fixed-term contract the employer could – without justification – terminate the employment with two weeks’ notice.
Two years later the assistant nurse was fired with exactly two weeks’ notice. However, the assistant nurse was of the opinion that it was unlawful to conclude an ongoing fixed-term contract for several years and that it was concluded in order to circumvent national legislation. Therefore, she brought the case to the Polish courts.
Polish law inconsistent with the law of the EU
According to Polish law a fixed-term employee is only entitled to two weeks’ notice whereas a permanent employee is entitled a notice between two weeks and three months depending on seniority. However, the court of Poland was not sure that this rule was consistent with the EU-law. Therefore, the Polish court of law submitted the matter to the Court of Justice of the European Union.
In respect of employment conditions EU law states that a fixed-term employee shall not be treated in a less favourable manner than comparable permanent employees unless the different treatment has a legitimate purpose. Therefore, it was for the Court of Justice of the European Union to decide firstly whether a notice period was an employment condition, secondly whether the assistant nurse was treated less favourable than a comparable permanent employee and thirdly – if so – whether or not this had a legitimate purpose.
The court stated that the notice period was an employment condition and that the assistant nurse was treated less favourable than her permanent employed colleagues in respect of employment conditions. Poland argued that since the fixed-term employees constituted a less stable workforce than the employees on open-ended contracts, the less favourable treatment did have a legitimate purpose. However, the Court of Justice of the European Union was of the opposite opinion and ruled that the Polish law was inconsistent with the EU law.
iuno’s opinion
Companies must be aware of the special requirements when hiring employees on fixed-term contracts, including the requirement of equal treatment. The specific EU case shows that the requirement of equal treatment applies not only to payroll and employee benefits, but also conditions such as the notice period.
iuno recommends that attention is given to the requirement of equal treatment when fixed-term agreements and personnel policies are drawn up. Regarding the latter, this is especially essential when the policies only apply to specific groups of employees or specific types of employment.
[Judgment given by the Court of Justice of the European Union on 13 March 2014 – Case C-38/13]
Possible change of the foreign expert taxation scheme and a new fast-track scheme for work- and residence permits
The Danish Ministry of Employment has in cooperation with the Danish Ministry of Taxation come up with an initiative to reform the recruitment of foreign labour to Denmark. The initiative includes a fast-track scheme with the purpose of making it faster and more flexible to obtain a work- and residence permit. If the employment meets certain criteria as stated in the initiative, the scheme allows foreign employees to start working in a Danish company as soon as the application for a work- and residence permit is filed and the fees are paid. However, companies wanting to make use of the scheme must also be certified according to the criteria specified in the initiative. Furthermore, the initiative includes a proposal to ease the foreign expert taxation scheme with DKK 10,000 pr. month.
We will keep an eye on the initiative and keep you posted.