IR Notes

On 24 February, the Amsterdam District Court delivered a ruling (published on 14 April) that is believed to be the first employment-related court decision applying Article 22 of the General Data Protection Regulation of 27 April 2016. In respect of automated individual decision-making, this article states that “the data subject shall have the right not to be subject to a decision based solely on automated processing, including profiling, which produces legal effects concerning him or her or similarly significantly affects him or her.” The case, which was brought before the District Court of Amsterdam, where the platform’s European head office is located, concerned six Uber drivers (five British and one Dutch citizen), whose Uber accounts were deactivated without warning, on the grounds that their usernames appeared to have been used simultaneously at two different locations in London, suggesting fraud was involved. In other words, the drivers were accused of fraudulently passing on their Uber app username to another driver. Uber’s decision – which was seemingly taken without any human intervention on the part of the data controller, and did not allow the drivers to state their case or dispute the decision – also resulted in them losing their private hire licences issued by Transport for London (TfL), the body that manages drivers’ licences in London. As a result, they could no longer work for other apps. The Dutch Court ordered Uber, which was not represented at the hearing, to reinstate the six drivers by reactivating their Uber account within one week following the judgment, failing which it would have to pay a 5,000-euro fine for each day’s delay. Uber has also been ordered to pay damages amounting to more than 100,000 euros, in the form of compensation ranging from 8,200 euros to 20,200 euros, depending on the driver concerned, plus compensation awarded to each driver to cover their legal costs. This concrete implementation of the European regulation is a reminder that even the most sophisticated technologies must remain under human control, especially when the decisions in question affect humans.
> Find out more: article in The Guardian (14.04), press release issued by the organisation Worker Info Exchange, which backed the complainants, and article published by Brave New Europe (thanks, Ben Wray!).

Carcinogens : On 25 March, the European Parliament’s Committee on Employment and Social Affairs adopted its report on the revision of the Carcinogens and Mutagens Directive (Directive 2004/37/EC) (see Carcinogens directive revision). This fourth update either sets or revises occupational exposure limit values (OELs) for three substances: acrylonitrile (a limit is set); nickel compounds (limit set) and benzene (existing limit revised downwards) (see IR Notes 149). MEPs voted by a very large majority (46 votes in favour, 6 abstentions) to extend the scope of the directive by including reprotoxic substances that have adverse effects on reproductivity and can cause impaired fertility or infertility. They are calling on the Commission to put forward an action plan by the end of 2021, with a view to setting limits for a further 25 substances, notably lead, lead compounds and mercury. They have also called for protection to be extended to workers who are exposed to a cocktail of substances, without any of these substances actually having to reach a limit value, and for the inclusion of hazardous drugs to which 12.7 million workers are exposed in their workplace (see also the European Public Service Union’s campaign to include hazardous drugs). On 13 April, the Committee voted in favour of the mandate to embark on inter-institutional negotiations with the Council, with a view to adoption at its first reading (see European Parliament press release) under the Portuguese Presidency of the EU.  The new legislation could then come into force in all Member States in 2023. The European Trade Union Confederation (ETUC) has welcomed this progress (see press release).

• EGF grants its first aid package linked to the pandemic: On 31 March, the European Commission announced that it proposes to grant Estonia financial support worth 4.5 million euros, to support over 5,000 employees and self-employed workers in the tourism industry, who lost their jobs as a consequence of the Covid-19 pandemic. This the first time that an aid application has been submitted to the European Globalisation Adjustment Fund (see European Globalisation Adjustment Fund) to help offset job losses linked to the pandemic (see press release).


• Future of Europe: A multilingual digital platform was launched on 19 April, to allow Europe’s citizens to submit their views on any topic they consider important for the EU’s future (see press release). The platform is intended to provide contributions to the Conference on the Future of Europe (see the Commission’s communication of 22 January 2020, “Shaping the Conference on the Future of Europe”), which will be opened on 9 May (Europe Day) by the European institutions (the Commission, the Council and the Parliament). Details of how the Conference will work are set out in a declaration adopted on 10 March.

Discrimination on grounds of age : The EU Court of Justice has issued a ruling on a Greek case, concerning an employee of a sports centre in the public sector. Within the framework of the policies imposed by its creditors, which required it to reduce wage costs in the public sector in order to achieve savings of 300 million euros in respect of 2012, Greece set up the “labour reserve system”. Workers who had reached the age of 58 could be transferred to this system for a period of 12 months, and a maximum of 24 months, until they retired. The system was applied to 30,000 people who, during this period, suffered a 60% cut in their basic salary and lost the severance pay to which they would have been entitled at the time their contract of employment was terminated. The Court of Justice’s view is that the system is indeed characterised by a difference in treatment that is directly linked to age (see Discrimination on the grounds of age). However, is it justified? The Court holds that debt-reduction imperatives cannot be a valid reason. However, the Greek Government explained that this policy was also about maintaining full employment (the system avoided the need to dismiss workers) and rebalancing the age pyramid in favour of young civil servants. Although these two arguments are somewhat strained, together they allow the Court of Justice to accept direct discrimination, as the disputed system “also pursues employment-policy objectives referred to in Article 6(1) of Directive 2000/78, in principle capable of justifying objectively and reasonably a difference in treatment on grounds of age”. This is a further illustration of how Member States can easily circumvent the prohibition on discrimination on grounds of age (CJEU; 15 April 2021, Case C-511/19, AB and press release).

• Health-protection measures strengthened : On 8 April, to combat the COVID-19 epidemic, the government strengthened the national protocol setting out companies’ teleworking obligations and the rules governing the provision of catering services. Teleworking for at least 4 days per week is now the rule, and every company is required to draw up “an action plan for the coming weeks, to minimise the amount of time that employees spend on site”.

Teleworking : As a continuation of the Remote Working Strategy published on 17 January (see IR notes 157), the government, in conjunction with the social partners, has organised recourse to teleworking by immediately putting in place a new Code of Practice on the Right to Disconnect, which was published on 1 April (see press release). This code serves as a guide and sets out good practice for companies and their employees. Although it has no legal force, it can still be used in the event of a dispute. “The Right to Disconnect refers to an employee’s right to be able to disengage from work and refrain from engaging in work-related electronic communications, such as emails, telephone calls or other messages, outside normal working hours”. Three rights are enshrined in this code: 1. “The right of an employee to not routinely perform work outside normal working hours”. 2. “The right to not be penalised for refusing to attend to work matters outside of normal working hours.” 3. “The duty to respect another person’s right to disconnect (e.g., by not routinely emailing or calling outside normal working hours”. Ireland’s Workplace Relations Commission (WRC) is also organising a national online public consultation on the introduction of a statutory right to request remote work. The government wants to provide “a clear framework” for the use of teleworking and depending on the case, it envisages “a hybrid or blended model with a combination of remote work and onsite work”, involving the presence of “a core of ‘anchor’ people, who will be in the office or on site most days because they need to be.”

• Parental leave extended: The Parent’s Leave and Benefit Act 2019, amended by the Family Leave and Miscellaneous Provisions Act 2021, increases the statutory leave entitlement of a “parent” from two to five weeks. This leave must be taken during the first two years of a child’s life or, in the case of adoption, within two years of the placement of the child with the family. Parent’s leave is available to each parent. This period of paid leave is in addition to two weeks’ paid Paternity leave and unpaid Parental leave of up to 26 weeks (see press release).

Platform companies : An agreement between the trade union confederations Cgil, Cisl and Uil on the one hand, and the employers’ organisation Assodelivery on the other, was signed on 24 March, in the presence of the Minister of Employment, Andrea Orlando (see Ministry of Employment press release). This “experimental framework protocol for upholding the law and for combatting illegal employment practices, illegal subcontracting and exploitation of labour in the food-delivery industry” is intended to “combat unlawful labour brokerage and the phenomenon of “caporalato” [forced labour], and, more generally, any form of exploitation of labour designed to benefit other parties, in the goods delivery industry, whose structure is complex.” The signatories will have 6 months to meet the obligations laid down by the protocol, which relate mainly to supervision of the organisation of labour and performance-measurement algorithms. There are three main points: 1) An undertaking given by Assodelivery member companies to adopt firstly an organisational model that complies with legislative decree no. 231/2001 and is capable of preventing reprehensible behaviour within a company; and secondly a code of ethics. 2) An undertaking given by platforms not to use third-party companies for making deliveries, at least until such time as a special register has been created. 3) The creation of a safeguarding body tasked with supervising the dynamics of how delivery workers are employed, with a view to identifying any unlawful activities.

Maintaining UK representation : After several years of tense discussions, on 30 March, the management of the French group Safran (55,000 employees in Europe), its European Works Council and an IndustriAll Europe representative signed an Amendment that allows the British delegation to remain on the European Works Council. While formally noting that the United Kingdom “no longer has the legal conditions necessary to be represented” on the European Works Council since the transition period came to an end (on 31 December 2020), the parties nevertheless emphasise that “employee representation in the United Kingdom has been ensured since the creation of the Committee”, and they “expressly agree to maintain the United Kingdom within the perimeter of the agreement, to maintain its members (…) and to maintain its prerogatives in the same way as the other Member States.” The group’s intention is for this amendment to strengthen the European Works Council Bureau, by increasing the number of its members from five to seven, four of whom should, where possible, be from countries other than France. This change in composition is necessary “in view of the challenges of European social dialogue and the high level of activity of the European Works Council Bureau”. In its newsletter, the European Works Council emphasises that “this signature marks the end of a five-year long battle waged by your European elected representatives to ensure that the rights to information, consultation and participation of the group’s second largest country in terms of workforce in Europe are not weakened”. The Council sees this as “a positive signal sent by the [company’s] new governance”.

Select committee and Brexit : The European Trade Union Institute (ETUI) has published Amendment no. 8 to the Saint-Gobain European Works Council agreement, which was signed on 18 December 2020, more than ten years after the previous amendment. The text takes account firstly of the change in the group’s organisational structure (it no longer operates on the basis of “delegations”, but by country or grouping of countries), and secondly, of Brexit. Here, the amendment specifies a list of the countries covered, including Norway, Switzerland and the United Kingdom. The European Works Council is composed of 70 members and meets at least once a year, whereas the select committee, which has 9 members, meets four times a year for one day. Each body also holds a one-day preparatory meeting before these meetings. Select committee members are granted a credit of 30 hours for each six-month period, and the secretary is granted 80 hours. These credits can be used “by means of remote working”. This period of time rises to 40 and 120 hours respectively if an extraordinary meeting is held during a given six-month period. Members also have a collaborative workspace in Microsoft Teams, whose secretary will be the administrator. The amendment confirms the mandate given by the European Works Council to the select committee “to exercise – in its name and on its behalf – its powers in terms of rights to information and consultation”. A clause provides for half-yearly meetings between select committee members and the management of a country or grouping of countries, for the purpose of reviewing the changes taking place within the group and in the group’s strategy.

Overview of industrial relations and employment during the pandemic : The European Foundation for the Improvement of Living and Working Conditions (Eurofound) has published a summary of the situation concerning working conditions and industrial relations in the EU in 2020 (Working life in the COVID-19 pandemic 2020). It includes the 29 national reports produced by Eurofound’s correspondents (including IR Share, which publishes IR Notes). These national reports describe how Member States have coped with the pandemic; the role played by social partners; and the main legislative changes that occurred in 2020. One of the articles summarising the situation shows that there was a significant decline in industrial disputes in 2020 (Relative calm on the industrial action front in 2020).

• Labour costs: Hourly labour costs in the economy as a whole were estimated, in 2020, at 28.5 euros in the EU and 32.3 euros in the euro zone, compared to €27.7 and €31.4 respectively in 2019 (i.e. an increase of 3.1% in the EU and 2.9% in the euro zone respectively), according to Eurostat’s latest statistics. The lowest hourly costs are in Bulgaria (€6.5), Romania (€8.1) and Hungary (€9.9), while the highest are in Denmark (€45.8), Luxembourg (€42.1) and Belgium (€41.1). Hourly costs rose in all Member States with the exception of Malta (down by 4.7%), Cyprus (by 2.7%), and Ireland (also 2.7%) and Croatia (1%). There were increases of 7% or more in the following countries: Portugal (8.6%), Hungary (7.9%), Bulgaria (7.8%), Lithuania (7.5%), the Czech Republic (7.4%), Romania (7.2%) and Slovakia (7%).


• Human rights and due diligence: The Amnesty International Report 2020/21 (not available in English) on the global human rights situation covers 149 countries and offers an analysis of the main human rights trends observed around the world in 2020. The pandemic has laid bare the systemic inequalities suffered by minorities, healthcare personnel and women, who make up some of the most severely affected populations. As far as Europe is concerned, the report calls on governments to “accelerate [their] timetables to reduce greenhouse gas emissions [and] reach zero-carbon emission” and to “condition any economic support measure to high-emitting companies with time-bound commitments to phase out fossil fuels.” The NGO is also in favour of a due diligence directive to ensure that “laws effectively hold businesses accountable for human rights and environmental harm within their value chain and provide victims with access to remedy.