IR Notes

“It now appears very likely that the experience of working from home during the COVID-19 crisis will lead to a growth in teleworking when the crisis abates”, explain the authors of the new study published by the European Foundation for the Improvement of Living and Working Conditions (Eurofound), based on more than 87,000 responses to an on-line questionnaire. This remarkable piece of work is a follow-up to the first study published in May, which highlighted the fact that 37% of people currently employed in the EU have switched to teleworking, due to the pandemic (see Telework). In many cases (24%), this was the first time they had worked from home (see IR Notes 142, Lead story, EN ES DE IT). The new study, which was performed in July, i.e. just after the various lockdown periods, includes a specific chapter devoted to teleworking experiences during Covid-19. Nearly one half of the employees making up the sample were working from home at least part of the time during the pandemic. Unsurprisingly, those working from home were disproportionately urban-based, white-collar, well-educated, service sector employees. One third of teleworkers reported that they were working exclusively from home (more than 50% in Belgium and more than 40% in Ireland, Italy, Spain and France). Less than one half (47%) indicated that their employer had provided the equipment needed to work from home – due to the fact that the transition to working from home was unplanned. Teleworkers report more often than employees as a whole, that they are working during their free time, especially where there are children in the household. They also report that most of the time, there is no physical separation between work and living spaces. However, this experience seems to have been a positive one for many employees (70%). More than three quarters of the employees questioned (78%) reported that they preferred to work from home, at least occasionally. The preferred frequency is several times per week (32%), slightly ahead of several times per month (just over 20%). Very few respondents (13%) indicated that they would like to work from home every day. Lastly, the study emphasises that there is no general consensus regarding a switch to “teleworking only”: nearly one half (45%) of the persons questioned who had not worked from home during the Covid-19 crisis reported that they would prefer to never telework.
> Find out more: the conclusions of this vast study, which also relates to employment, and the risks of poverty or social exclusion, are “stark and alarming”, says Eurofound. Young people, the unemployed and women are the categories suffering a disproportionately high impact, compared to other categories of the population. 8% of employees who responded had lost their job since the Covid-19 crisis (13% of self-employed workers)

Revision of the “Carcinogens” Directive : On 22 September, the European Commission put forward a fourth amendment of Directive 2004/37/EC on carcinogens and mutagens, following the revisions applied in December 2017 (see IR Notes no. 89), January 2019 (see IR Notes no. 113) and June 2019 (see IR Notes no. 123). It establishes limit values for acrylonitrile and nickel compounds. And it revises the limit value for benzene downwards.
> Find out more: interview with Agnes Jongerius in IR Notes 148; Questions and answers press release issued by the Commission and press release.

Promoting an anti-racist Europe : On 18 September the European Commission unveiled the “EU anti-racism action plan 2020-2025“ (see press release) announced by its President, Ursula von der Leyen, at her recent State of the Union speech (see IR Notes 148). Within the framework of this vast plan, which affects all areas, the Commission will present, in the field of employment and work, an implementation report for Directives 2000/43/EC relative to implementing the principle of equal treatment between persons irrespective of racial or ethnic origin and 2000/78/EC establishing a general framework for equal treatment in employment and occupation (see Racism and xenophobia; Discrimination on the grounds of racial or ethnic origins). It might subsequently take legislative initiatives with a view to revising these texts by 2022. The Commission welcomes the “diversity charters” adopted by companies in the private sector, and is planning a high-level meeting to be held in May 2021, before publishing “an online toolkit to help companies assess their internal diversity and diversity strategies based on adjustable staff surveys, a downloadable questionnaire and recommendations for improving diversity in their organisation on the basis of the results of the assessment.” Moreover, the next “action plan on the European Pillar of Social Rights” is presented as an instrument that “will also contribute to better addressing discrimination in the area of employment.” This action taken by the Commission to promote an anti-racist Union means that the topic in question will compel recognition as a subject for social dialogue, including at company level. This is already the case in Germany, where the trade-union federation IG BCE has recently drawn up a model agreement for its members, with a view to signing company agreements aimed at fighting racism (see IR Notes 146, 2. Member States).

Minimum wage : The European Economic and Social Committee (EESC) has adopted an opinion relating to “Decent minimum wages across Europe”. The opinion advocates “a common EU approach with clear policy objectives for the Member States to achieve, through different means, and ensuring the involvement of the social partners.” This initiative, forming “part of well-functioning collective bargaining systems, could ensure that workers’ rights to fair remuneration and to freedom of association and employers’ needs in relation to productivity and competitiveness are safeguarded.”

Due diligence : In an exploratory opinion adopted on 18 September, the European Economic and Social Committee declares that the time has come for the European Commission to propose legislation establishing mandatory due diligence (“due diligence obligations”). Victims of business-related HR infringements must have guaranteed access to fair proceedings, courts and authorities. The future EU initiative “should guarantee a broad coverage of the HR and environmental rights definition including workers’ and trade union rights.” This due diligence obligation would be aimed at all companies (with appropriate adaptations for SMEs), which would have to perform risk analysis, put in place follow-up measures, track their effectiveness, communicate and involve the “trade union organisations represented in the company”.
> Note: On 29 November, the Swiss are due to vote in a referendum on the adoption of due diligence legislation governing Swiss multinational companies.

• Artificial intelligence : The European Parliament’s Committee on Legal Affairs has adopted a report on artificial intelligence (AI). It is inviting the European Commission to present a new legal framework outlining the ethical principles to be used when developing, deploying and using artificial intelligence, robotics and related technologies in the EU, including software, algorithms and data (see Digitisation).  The committee is calling for human-centric, human-made and human-controlled AI that will take account of social and environmental responsibility, and respect for fundamental rights, while at the same time incorporating safeguards against bias and discrimination. The vote in plenary is scheduled for the 19-22 October plenary session (see press release).

• Supervision of teleworking : In an interview, the Federal Minister of Labour, Hubertus Heil (SPD) announced the preparation, this autumn, of a draft law for supervising (home-based and mobile) teleworking that will grant employees “new freedoms, but will also protect them from a complete separation of their work and their private life”.
  
  

   

A Facebook post can constitute grounds for dismissal : On 30 September, the French Supreme Court [Cour de cassation] issued a ruling upholding the dismissal of a female employee of the clothing manufacturer Petit Bateau who, in April 2014, posted a photo previewing the 2015 spring-summer collection on her Facebook page, which was accessible to “her friends” (including fashion professionals and competitors). One of the exhibits produced by the employer in support of its dismissal proceedings was a photo taken from the employee’s Facebook account, sent in by another company employee, who was a Facebook “friend” of the employee who was dismissed. The dismissed employee argued that this evidence was inadmissible, as copying a post from her private account represented a breach of her privacy. The Court acknowledged the breach of privacy, but it emphasised that “producing evidence that breaches the employee’s privacy was essential for the purpose of exercising the right to submit evidence and proportionate to the goal being pursued, i.e. that of defending the employer’s legitimate interest in protecting the confidentiality of its business” was consistent with Articles 6 and 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
> Find out more: Court of Cassation ruling (no.19-12.058) of 30 September 2020 and commentary by lawyer Maître Blandine Allix.

• Paternity leave to be extended: Paternity leave is due to be doubled from July 2021 (see press release). At the present time, fathers enjoy 11 days’ paternity leave in the form of an allowance paid by the Social Security system, plus the three days of “leave for the birth of a child” provided for by the Employment Code and remunerated by the employer. The aim is to add a further 14 days, financed by the Social Security system, in order to reach a target of 28 days, seven of which would be compulsory. An employer who prevents an employee from taking these seven days would be liable for a fine of 7,500 euros. Consultation with the social partners is due to take place before this measure passes into law. As a result, this measure may well undergo further changes prior to its adoption, particularly since the employers are calling for flexibility, e.g. the option of splitting leave into shorter periods.

• Collective agreements extended : In June, the Supreme Court issued a decision, stipulating that current legislation does not allow the signatory parties to a collective agreement to extend this agreement to all employers in the sector, contrary to the practices in force for some years now, both in terms of extending collective agreements in the healthcare and transport sectors, and of setting the minimum wage at national level. In response to this development, the government plans to change the law and to establish an official criterion for representativeness, whereby an agreement could be extended if the members of signatory employers’ organisations employ in total at least 20% of employees in the sector concerned. For the moment, no criterion is planned for the signatory trade unions.

• Paternity leave and free movement : In a referendum held on 27 September, the Swiss voted for the introduction of ten days’ paternity leave, to be taken within six months following the child’s birth, either in one continuous block or several discontinuous blocks of leave. It will be remunerated at a level of 80% of the employee’s wage (capped at 196 euros per day). They also voted to maintain freedom of movement between the EU and Switzerland for workers, and vice versa. In the canton of Geneva, citizens voted for a minimum wage of 4,186 Swiss francs (3,880 euros) to be paid to the 30,000 workers who do not enjoy the higher minimum wages set by collective labour agreements.

Failure to comply with the consultation procedure : la juridiction britannique chargée d’examiner les contentieux relatifs aux CE européens, le Central Arbitration Committee (CAC), a sèchement condamné l’entreprise américaine Verizon, dans une décision du 9 octobre 2019, pour ne pas avoir respecté les termes de son accord de CE européen. Dans le cadre d’une réorganisation conduisant à la suppression de 216 postes en Europe dans huit pays, la direction de Verizon s’est contenté d’informer le comité restreint du CE européen, avant l’annonce officielle. Or, dans un tel cas, l’accord prévoit une réunion non pas seulement d’information, mais aussi de consultation d’un comité restreint élargi aux représentants des pays affectés qui siègent au CE européen (see Information and consultation). Ne donnant pas suite aux demandes du secrétaire du CE européen de convoquer un comité restreint élargi, la direction a été condamnée par le CAC, pour n’avoir pas respecté la procédure et à prendre en charge des frais d’avocats engagés par le CE européen pour défendre ses intérêts. Following this decision, the EWC instigated further legal proceedings before the London Employment Tribunal, which was called on to rule whether the company should be fined. In the judgment it handed down on 1 October, the Tribunal confirmed that it had found against the company’s management and imposed a fine of £35,000 on it, plus £5,000 in legal fees. These two decisions are important, because the issue of how dispute-related legal proceedings can be financed by a EWC – which, in the vast majority of cases, does not have its own budget – arises on a regular basis. They also highlight the difficulty of securing official recognition of a breach of the information and consultation regulations, and the ineffectiveness of any sanctions imposed: in this case, a fine imposed two years after the event.

• Restructuring : “Managing the crisis caused by the Covd-19 pandemic must not come at the expense of employees. We need intelligent solutions and not mass redundancies in 2021”, warns the Works Council of the European company Airbus SE (SE-WC), in a statement issued on  23 September, after a plenary meeting. The Council goes on to say: “Saving jobs must be the absolute priority, as it is only with the employees that there can be any future prospects after the crisis”, emphasising several demands aimed at preventing any compulsory redundancies.

• Trade-union network : On 15 September, the European Federation of Public Service Unions (EPSU) launched a plan to set up a European trade-union network in two multinational companies operating in the healthcare sector: the Norwegian group Norlandia (5,750 employees) and the French group Colisée (16,000 employees), which specialises in support and care services for the elderly. The aim is to set up a trade-union network, and then embark on negotiations with a view to creating a EWC.

Promoting social dialogue : At a time when the European Commission is reaffirming the need to promote social dialogue and collective bargaining, the European Foundation for the Improvement of Living and Working Conditions (Eurofound) is publishing a study that is intended to provide food for thought, not only for the Commission itself but also for any national actors planning to strengthen social dialogue. Social dialogue, which serves “the general interest, […] should be supported by public policy”. The authors emphasise that the social partners should also be supported “in their efforts to increase their membership, representativeness, and capacity to negotiate and implement agreements”, and they also call for the deployment of a legal framework favourable to bipartite social dialogue at national level.