A guide to employment law in 20 questions

ince the Industrial Revolution, Labour Law has been challenged and stimulated by social reality, having successfully overcome the challenges arising from the advent of machines and new technologies. More recently, digitalisation, automation, decentralisation, delocalisation, dematerialisation and artificial intelligence have re-emerged the debate on the need for a branch of Law dedicated to the (re)balance of employer-employee relations.

Today as before: are the days of Labour Law numbered? In an extreme scenario of total replacement of people by machines, Labour Law would (probably) cease to exist. We do not think that this hypothesis would arise, at least not in the next few years. However, labour relations are undergoing significant modifications that cannot be ignored.

Some professions may change significantly and others may even disappear. However, new professions are also starting to emerge, such as the Data Protection Officer, for example. In addition, we have to deal with the constant change - or instability - of labour law. In about 15 years, we had the 2003 Labour Code, with 4 changes, and the 2009 Labour Code, with 13 changes, without prejudice of others that have been announced by the Government and the parties that support the current parliamentary majority.

Against this backdrop, we need to know if we know the answers to the main labour issues, namely:

1) Is there a collective labour agreement applicable to my sector or company?

Since 16 April 2018, DGERT - Directorate-General for Employment and Labour Relations has made a tool available to search for collective labour agreements.

However, employers and employees must verify whether collective labour agreements are (effectively) applicable to the specific case, by virtue of the affiliation principle, through the mechanisms provided for by law to extend their scope of application or by taking into account the rules on overlapping and competing collective labour agreements.

2. What is the difference between an employment contract and a service contract?

An employment contract is a contract whereby a natural person undertakes, for remuneration, to provide his activity to another person or persons, within the scope of organisation and under their authority. On the other hand, a contract for the provision of services may be concluded by a natural or legal person, which provides its activity autonomously and independently.

However, this is one of the most controversial issues. For the clarification of doubtful cases, we can resort, for example, to the presumption of employment: a contract of employment is presumed to exist when, in the relationship between the person providing an activity and one or more others who benefit from it, some of the following characteristics are present:

(i) the activity is carried out at a location owned or determined by the beneficiary;

(ii) the equipment and working tools used belong to the beneficiary of the activity;

(iii) the activity provider observes start and end times of the service, as determined by the beneficiary of the service;

(iv) a certain amount of money is paid to the activity provider, at certain intervals, as consideration for the activity;

(v) the activity provider performs management or managerial functions in the company's organic structure.

3. In what situations can I use the fixed-term or temporary employment contract?

Fixed-term employment contracts and temporary employment contracts shall be concluded in writing and may only be concluded in order to satisfy a temporary need of the company and for the period strictly necessary for the satisfaction of that need.

4. What are the risks associated with the misuse of a service contract, a fixed-term contract or a temporary employment contract?

The misuse of a service, fixed-term or temporary employment contract leads in particular to its conversion into an employment contract of indefinite duration.

5. What are the labour responses to the digital economy? Is it a land free of labour concerns?

The digital economy may challenge the boundaries of labour law, but it is not a land free of labour concerns. In fact, courts in several countries have considered that the provision of activity through platforms can have an employment nature. On the other hand, several issues arise with regard to workers' health and safety, the use of social networks and the safeguarding of workers' privacy.

6. What should I do to protect privacy and personal data in my organisation?

With the entry into force of the General Regulation on the Protection of Personal Data, companies should immediately promote an internal audit with the objectives of, on the one hand, identifying the personal data to which they have access and, on the other hand, defining a strategy aimed at protecting and safeguarding it.

7. Does my company have to appoint a Data Protection Officer? Can it be an employee? Should it be a service provider?

The answer to the first question will depend on the type of company and the activity pursued. The legal framework of the data protection officer has raised many questions and therefore the solution will depend on the circumstances of the specific case.

8. Can the employer freely decide the activity to be performed by the worker? What are the limits?

The employer has the power of direction to carry out the contracted activity during the execution of the employment contract. However, it must take into account the rights and guarantees attributed to employees related, namely, to the professional category and technical and scientific autonomy.

9. What are the consequences of not obeying an order? What can the employer do? How can the worker react to the employer's actions?

In certain cases, workers may refuse to comply with an order of the employer. Nevertheless, it is a decision that should be duly considered, because the employer may promote a disciplinary procedure with or without the intention of dismissal with just cause.

In these situations, the employee can seek the support of a trade union and/or a lawyer, as well as the Authority for Working Conditions or the Courts.

10. What is the difference between harassment and labour conflict?

Harassment may be psychological or sexual. The former consists of unwanted behaviour, particularly that based on a discriminatory factor, whether occurring on the occasion of access to employment or on the job itself, at work or in vocational training. The second is based on unwanted behaviour of a sexual nature, in verbal, non-verbal or physical form. Both must have the aim or effect of disturbing or constraining the person, affecting their dignity, or creating an intimidating, hostile, degrading, humiliating or destabilising environment for them. In other cases we can speak of "mere" labour disputes, which also deserve the protection of the Law, depending on the circumstances of the specific case.

11. What should the employer do in a situation of harassment between workers or promoted by a third party (e.g. customer or supplier)?

Companies with seven or more employees must adopt codes of good conduct to prevent and combat harassment at work. In any case, whenever the employer is aware of facts that may constitute a situation of harassment, he must, at the very least, initiate an internal investigation procedure in order to ascertain, even if only indirectly, its existence or veracity. Subsequently, it must adopt the measures that prove to be necessary to eliminate the situation of harassment.

12. How can the employer protect confidential information, know-how and business secrets?

The employer should combine legal, technological and procedural mechanisms. Among the legal mechanisms, we can mention the drafting of confidentiality, secrecy, non-competition or permanence clauses.

13. How can the workplace be changed? Can the employer be obliged to change the workplace at the worker's request?

The workplace may be changed temporarily or permanently, by order of the employer or, in the case of domestic violence, at the request of the worker. In the first case, the employer must comply with a legally established procedure, which imposes the duties of justification and observance of prior notice. In the second case, the employer may only postpone the transfer on the grounds of overriding requirements related to the operation of the company or service, or until there is a compatible job available, without prejudice to the employee's right to suspend the execution of the employment contract.

14. What are the mechanisms for reconciling personal and professional life? Can the worker impose changes to the organisation of work?

In addition to the parental protection regime, we can mention the mechanisms of adaptability or adjustment of working time - for example, the time bank -, as well as the provision of activity under exemption from working hours, part-time work or teleworking. These instruments produce changes in the business organisation that should be anticipated and regulated.

15. What is an accident at work? What are the behaviours that should be adopted by the company in a situation of an (apparent) work accident?

As a rule, an accident at work is that which occurs at the place and time of work and directly or indirectly produces bodily injury, functional disturbance or disease that results in a reduction in the ability to work or earn a living, or death. However, commuting accidents, for example, should also be considered.

An employer who has transferred responsibility for an accident at work to an insurer shall, under penalty of being held liable for losses and damages, inform that insurer of the occurrence of the accident within twenty-four hours from the date of knowledge.

16. What are the modalities of termination of the employment contract?

The employment contract may be terminated in particular by:

(i) expiry;

(ii) revocation (agreement between employer and employee);

(iii) dismissal for reasons attributable to the employee (disciplinary cause);

(iv) collective dismissal;

(v) dismissal due to termination of employment;

(vi) dismissal for unsuitability;

(vii) termination by the employee (with just cause);

(viii) termination by the employee, with or without notice.

17. What are the risks associated with not complying with the legally established procedure for termination of employment contract?

The declaration of illegality of the termination of the employment contract promoted by the employer gives the employee the right to be reinstated (or to receive, alternatively, a seniority indemnity) and to receive the so-called "interim wages", i.e. those earned while the action for annulment of the dismissal is pending.

On the other hand, the employee who fails to comply with the legally prescribed procedure may be obliged to compensate the employer.

18. What is an employment contract with multiple employers?

The worker may agree to work for several employers between whom there is a corporate relationship of reciprocal shareholdings, dominance or group, or who have common organisational structures(v.g. sharing an office or a consulting room).

This employment contract must be reduced to writing and contain:

(i) the identification, signatures and domicile or registered office of the parties;

(ii) an indication of the activity of the worker, the place and the normal working period;

(iii) the indication of the employer who represents the others in the performance of the duties and the exercise of the rights arising from the employment contract.

19. What are the labour risks associated with outsourcing and buying and selling companies?

Among other issues, in the outsourcing and in the purchase and sale of companies, the regime of the transfer of establishment must be taken into account, which imposes the maintenance of the workers that provide their activity in the company, establishment or business unit transferred. The new employer may be obliged to take on a group of workers that it did not choose and whose working conditions were determined by the previous employer. The labour risks associated with the transfer of an establishment are often identified in audits conducted prior to the deal.

20. Should I form a workers' committee?

Workers have the right to create, in every company, a workers' committee in order to defend their interests and to exercise the rights provided for in the Constitution and in the law. The employer, on the other hand, may not oppose or condition the lawful exercise of this right by workers.

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Warning:

All these questions (and the answers to them) should be reviewed and re-addressed in the light of the circumstances of the individual case. Taking decisions based on generic guidelines or information entails uncertainties and insecurities that should be avoided.