Contract of employment
Although different legal formulations of the concept of worker are possible, labour law in the EU starts with the employment relationship, which is characterised as a contract of employment. The contract of employment adopts the criterion of submission or subordination of the employee to the employer’s command or control as to the time, place and manner in which the work is to be done as its essential defining element. Laws affecting workers usually adopt the contract of employment and subordination as the criteria defining the objects of their attention. The category most obviously excluded is that of the self-employed person.
Some EU Directives not only include contracts of employment within their scope but also other ‘employment relationships.’ The initiative most clearly directed to the limitations of the contract of employment was Council Directive 91/533/EEC of 14 October 1991 on an employer’s obligation to inform employees of the conditions applicable to the contract or other employment relationship. This Directive aimed to cover ‘any working relationship emanating from a contract of employment or any other legal form of recruitment (e.g. teleworking, training, employment-training, etc), which links a worker to an employer and which is subject to the legislation in force in a Member State’.
Also relevant is the proposal for a Council Directive ‘on a form of proof of an employment relationship’ (COM (90) 563 final, Brussels, 8 January 1991). Article 1 of the Directive defines its scope as follows: ‘This Directive shall apply to every paid employee having a contract or employment relationship defined by the law in force in a Member State and/or governed by the law in force in a Member State.’ The Directive makes a clear distinction between contractual and other employment relationships – and includes both within the scope of the Directive.
The significance of the Directive is that, by implication, it includes within its scope any worker who does not have a contract of employment. It also includes those with a relationship of employment. It recognises that work has taken new forms, which may not fall within the classical legal definition of contracts of employment. Thus, the scope of EU regulation of the labour market shows some sign of extending beyond contracts of employment, to cover workers outside the normal confines of employment law.
Information on employment status and conditions
Council Directive 91/533/EEC of 14 October 1991 obliges the employer to inform employees of the conditions applicable to the contract or other employment relationship. As the Explanatory Memorandum to the proposed Directive put it, some workers ‘have neither a written contract of employment nor a letter of appointment explaining the elements of the employment relationship or referring to a collective agreement or any other easily accessible written document’. Article 2 of the Directive imposes an obligation on employers to inform employees of the conditions applicable to the contract or other employment relationship, and Article 3 requires this information to be given in written form.
In addition, Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work stipulates specific requirements on employers in respect of the provision of information to individual workers. This obligation extends to temporary and hired workers currently working in the enterprise or establishment and workers from any outside undertakings working in the employer’s establishment.