IR Notes

IR Notes reports at regular intervals on the innovative steps being taken, mainly in Sweden and the United Kingdom, to make workplaces more welcoming for women, by taking account of the suffering they endure in connection with periods, endometriosis and the menopause, difficulties linked to child-bearing (IVF cycles, miscarriages) and domestic violence. In Sweden, the metalworkers’ union IF Metall, which has 300,000 members, launched an annual women’s rights campaign in 2021, to make workplaces a more welcoming environment  for women who are having their periods (see IR Notes 164). And since 2019, Sweden’s Mensen association has been issuing “menstrual certification” to companies after they have been audited, organised training courses and adopted an action plan (see IR Notes 131).  In the UK, the menopause has become a major public health issue (see IR Notes 176, IR Notes 184 and IR Notes 186). The trade unions have published practical guides for their members (see guides published by the TUC and Unison), including a report on women’s health published by the TUC (see IR Notes 205), while several bodies have issued recommendations for employers (see guides published by the NHS, ACAS, the CIPD and the standards body BSI (see IR Notes 210). The law firm Lewis Silkin, which advises businesses, has published a briefing inviting employers to pay special attention to their female employees who may be going through the menopause (see IR Notes 194), to avoid potential lawsuits being brought against them on the grounds of discrimination. A further initiative is under way in Scotland where, on 31 October, the public health body NHS Scotland launched a National Menopause and Menstrual Health Policy covering its entire workforce. The instructions sent out to all NHS managers are accompanied by two guides drawn up by the Scottish government: the first one (a Line Manager’s Guide) provides guidance on how to support employees whose menstrual health or menopause symptoms are impacting on their ability to work comfortably and to enable line managers to promote good menstrual health and menopause awareness. The other one (Workplace Adjustments Guide) highlights the different symptoms and types of adjustments that could be considered for employees whose symptoms are affecting their working life. The government indicates that although this policy is specifically aimed at NHS Scotland staff, these guides are intended to be used widely across a variety of employment sectors. This policy was informed by research conducted by researchers at the University of Glasgow (see “A question for…” Kathleen Riach). Their study is based on the experience of over 6,000 women working across NHS Scotland. Furthermore, on 7 November, the Netherlands Employment Foundation (StvdA), in collaboration with the CNV trade union confederation and other organisations representing the interests of employees and employers, published a guide that provides employees and employers with the resources needed to recognise, discuss and manage the menopause period. The aim is to break the taboo around this subject and create an inclusive and healthy working environment (see press release issued by the CNV confederation).

Fighting discrimination : New rules to support the national equality bodies established within the framework of directives tackling the issue of discrimination (see Discrimination) have been adopted at the committee stage of the European Parliament (see press release). The text will have to be approved at a plenary session before negotiations with the Council commence, with a view to its adoption. The aim is to strengthen the resources and independence of these institutions, whose remit includes discrimination in the workplace. Member States will have to ensure that these equality bodies can provide free-of-charge assistance to victims of discrimination. They will have powers to investigate possible breaches of equal treatment, whether following a complaint or on their own initiative (see briefing).

Limiting the carry-over period for paid annual leave : The Court of Justice has delivered a judgment concerning the carry-over period for paid annual leave accrued during an employee’s long-term absence from work due to illness. It is not for the Court “to define the length of the carry-over period applicable to the right to paid annual leave (…)”, since this is a matter for the Member State concerned. It can however check that the carry-over period fixed by a Member State does not undermine a worker’s right to paid annual leave. In this case, it agrees to a carry-over period of 15 months, as fixed in a previous judgment in 2011. The Court rules however that while a worker who is unable to work “for several consecutive reference periods” can in principle accrue “without any limit, all the entitlements to paid annual leave that are acquired during his or her absence from work”, “such unlimited accumulation of entitlements would no longer reflect the actual purpose of the right to paid annual leave” (CJEU, 9 November 2023, Case C‑271/22 to C‑275/22, Keolis Agen).

• Paid annual leave for an employee who is reinstated following dismissal: The Court of Justice has delivered a judgment concerning an employee who was dismissed and then reinstated, following a ruling annulling her dismissal. The Court holds that if a worker has not performed any actual work for their employer before being reinstated, they cannot be denied their entitlement to paid leave (see Annual leave), even if they have received wage compensation equivalent to their earnings between the time of their dismissal and reinstatement (CJEU, 12 October 2023, Case C-57/22, YQ.).

Telework and the right to disconnect : European social partners failed to reach a framework agreement on telework and the right to disconnect at their latest negotiation meeting on 9 November. A negotiator for the employers commented that “all of the organisations involved are now considering the next possible stages”. This is a way of standing back and taking stock of the situation, because after 15 working meetings and three months of intensive discussions since the end of August, plus logistic support from the European Commission, the failure of negotiations on a relatively consensual topic would suggest that European cross-industry social dialogue is now brain-dead, unless the Val Duchesse social summit that the Commission is organising in January next year, can revive it.

Violence and harassment : On 7 November, the UNI Europa European trade-union federation and European employers’ organisations from several sectors (telecommunications, finance and gaming) signed Cross-Sectoral Guidelines on Eliminating Violence and Harassment at Work (see press release). These guidelines are focused on domestic violence related to the world of work, third-party violence, and psychosocial risks of telework. The guide, which can be used a source of inspiration for those involved in social dialogue at all levels, including European Works Councils, proposes a number of measures to be included in the future EU directive on combating violence against women and domestic violence.

“On call” work : The Federal Employment Court has pointed out that in the absence of any specific details set out in the contract of employment of a female employee working “on call” at a printing company, the reference working time is that fixed by the third sentence of Article 12, paragraph 1, of the TzBfG [‘law governing part-time and fixed-term employment’], i.e. 20 hours per week. The fact that the employer has required the employee to work for longer than 20 hours per week over a period of several months does not mean that it is legally obliged to maintain this number of hours going forward.  Likewise, the mere fact that the employee is prepared to work for more than 20 hours per week over this same period does not indicate that she wishes to commit on a long-term basis to working for longer than the period stipulated by law (see press release).

Collective bargaining coverage : The trade union confederation DGB has launched a campaign condemning the avoidance tactics used by some companies who deliberately remove themselves from the scope of application of branch-level collective agreements, in order to cut their labour costs. Yasmin Fahimi, the DGB’s President, is highly critical, pointing out that “only around one half of this country’s employees benefit from the rules and protection provided by collective bargaining agreements”. The DGB calculates that in total, every year this represents 43 billion euros’ worth of lost social security contributions and 27 billion euros’ worth of lost revenue for the German State and local authorities. If all employees were remunerated on the basis of a collective bargaining agreement, they would have “an extra 60 billion euros per year in their wallets” (see press release).

• Works council : On 1 November, the government passed a Works Council Constitution Act, to introduce provisions governing the remuneration payable to employees who are works council members. The aim is to ensure that an employee who becomes a works council member is neither placed at an advantage or a disadvantage by taking on this role, and that they will continue to be paid a similar wage to other workers holding a comparable job.

Burn-out at work : On 8 November, on the National Employment Council, the social partners adopted a recommendation to companies and sectors concerning burn-out prevention. The text invites companies to develop a bespoke strategy that meets their own needs, by conducting a dialogue with stakeholders, assigning a key role to workers and their representatives, and creating a task-force dedicated to this subject (see press release).

Compulsory work : With effect from 1 January 2025, the government has decided to introduce an obligation for people to work if they wish to benefit from the minimum income. Anyone who does not meet either the residence requirement (at least 9 years’ residence in Denmark during the past ten years) or the employment requirement (working full-time for at least two of the past ten years) will have to work 37 hours a week for their local municipality to qualify for an allowance. Time spent learning Danish, looking for a job or travelling from one job to another can be deducted from this total (see press release).

Information to be given to an employee : A law of 9 March 2023 has strengthened the employer’s obligation to provide an employee with information about the main features of their employment relationship. A decree of 30 October 2023 sets out how this law will be implemented. These new obligations entered into force on 1 November. The decree also sets out details of how employees working on fixed-term contracts or in temporary positions are to be informed about job vacancies involving permanent contracts within the company.

Ecological transition : The employers’ organisation LEEM and the CFDT, FO, Unsa and CFTC trade unions have signed a collective agreement on ecological transition and sustainable mobility in the pharmaceutical industry, which is the first branch-level agreement to be concluded on this topic in France. With a view to meeting the sector’s decarbonisation commitments, companies will be required to produce a review of their business’s carbon footprint within 12 months, and subsequently to put in place an action plan. Companies with more than 300 employees will have to set up an environmental committee that will be responsible for “examining the environmental impact of the company’s strategic decisions or its environmental strategy”.

Legal costs : The UK Court of Appeal has ruled on an unprecedented application to recover the legal costs incurred by an employer in a case brought by the company’s own European Works Council. Following a ruling by the Court of Appeal, rejecting the complaint filed by the Adecco Group European Works Council, which argued that it had not been consulted at the time of a reorganisation (see IR Notes 149 and IR Notes 213), the company’s management submitted an application to recover its legal costs from the European Works Council members concerned. The Court of Appeal rejected this application (see judgment). The EWC’s barrister had argued that if members knew “that they were at risk of being ordered to pay costs in these circumstances […], this would be likely to 1/ deter from them seeking to assert their rights by filing complaints, and to 2/ seriously discourage them from taking part in European Works Councils. This would be contrary to the aims of the directive.” The Court of Appeal agreed with this argument and departed from the usual rule whereby the losing party pays the opposing party’s legal fees. It emphasised that the Adecco group had funded the appeals for both sides and it would be inconsistent for it now to recover its costs. Moreover, this litigation “seeks to resolve an internal company dispute”, and the European Works Council “simply consist[s] of a group of individual workers who have volunteered from time to time to fulfil this role”.

Pressure to negotiate: : Swedish trade unions from various sectors have embarked on actions designed to show solidarity and force Tesla management to negotiate a collective agreement with the metalworking industry federation IF Metall (see IndustriAll Europe press release and background information published by IF Metall). Tesla’s reluctance to engage in social dialogue is also apparent in Germany, where the management of their plant near Berlin is refusing to implement the metalworking industry’s collective bargaining agreement. The IG Metall trade union has condemned serious occupational health and safety shortcomings at the company, and wage levels at 20% below those paid by other car makers in Germany (see press release). The company’s management has just announced that its 11,000 employees will receive a bonus of 1500 euros to offset inflation, to be followed by a 2,500 euro bonus in 2024. The groups says “there is no truth whatsoever in the rumours of a link between Tesla’s wage adjustments and trade-union activities” (see article in Wirtschafts Woche).

Environmental transition : The TotalEnergies group has signed an agreement with all trade unions, providing for payment of a gross allowance of €2,000 to each of its 35,000 French employees, in order to reimburse costs incurred in connection with enhancing their ecological mobility and the energy efficiency of their home (see group press release and press releases issued by the CGT).

Essential workers : According to a report on the working conditions of essential workers, published by Eurofound on 10 October, 45% of the EU’s workforce could be considered essential workers. Among them, the study identifies six groups with more workers in “strained” jobs than the EU average (30%), i.e. workers who find themselves in a situation where the demands of their work exceed the job resources available to carry this work out. They include cleaners and refuse workers, health and care workers, transport workers, food system workers, protective services workers and manual workers. The authors of the report believe that it is vital to improve the job quality of critical workers, if the EU is to cope with future crises.

Gender equality : The latest Gender Equality Index, published by the independent resources centre Eige, shows the “biggest annual jump in the overall score in the history of the Index ever”. The EU is now at 70.2 points out of 100: this means it is up by 1.6 points on 2022, compared to an annual rise of 0.6 points on average since 2010. However, there are a number of major disparities between countries and a few cases of regression or stagnation between 2023 and 2022. Another piece of good news is that – for the first time in ten years – the proportion of women on company boards now matches that of women sitting in national parliaments (33%). The report devotes a specific study to the gender dimension within the framework of the green transition and the European Green Deal (see press release).