The EU has competence to adopt directives concerning ‘protection of workers where their employment contract is terminated’ (Article 153(1d) TFEU). However, regulation of dismissal can be both sensitive and complex, which may explain why, in order to adopt a Directive on the subject, the Council of Ministers ‘shall act unanimously’ (Article 153(2) TFEU).
Although there is no general EU regulation of dismissals, there are many specific cases of EU intervention:
- Council Directive 75/129 of 17 February 1975 on the approximation of the laws of the Member States relating to collective dismissals.
- Council Directive 77/187 of 14 February 1977 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of businesses.
- Council Directive 97/81/EC of 15 December 1997 concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and ETUC.
In the context of discrimination, dismissals, or the termination of an employment contract, are specifically referred to by Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for women and men as regards access to employment, vocational training and promotion, and working conditions. Article 5 provides for the application of the principle of equal treatment with dismissals.
Similar protection is declared in Council Directive 2000/43 (Article 3) implementing the principle of equal treatment for persons irrespective of racial or ethnic origin, with respect to ‘employment and working conditions, including dismissals and pay’, and in identical terms with regard to ‘discrimination on the grounds of religion or belief, disability, age or sexual orientation’ in Council Directive 2000/78 establishing a general framework for equal treatment in employment and occupation. Furthermore, the ‘Prohibition of dismissal’ is referred to in Article 10 of Council Directive 92/85 of 19 October 1992 on the introduction of measures to encourage improvements in the health and safety at work of pregnant workers and workers who have recently given birth.
Dismissals in the case of restructuring
Procedures to be followed in the event of dismissals in the course of restructuring of enterprises are covered by a number of directives.
Council Directive 75/129 of 17 February 1975 on the approximation of the laws of the Member States relating to collective dismissals, as amended by Directive 92/56 of 24 June 1992, consolidated in Council Directive 98/59/EC of 20 July 1998, prescribes mandatory procedures for collective ‘dismissals effected by an employer for one or more reasons not related to the individual workers concerned’.
Council Directive 77/187 of 14 February 1977 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of businesses, as amended by Directive 98/50/EC of 29 June 1998, consolidated in Directive 2001/23 of 12 March 2001, provides in Article 4(1): ‘The transfer of the undertaking, business or part of the undertaking or business shall not of itself constitute grounds for dismissal by the transferor or the transferee. This provision shall not stand in the way of dismissals that may take place for economic, technical or organisational reasons entailing changes in the workforce.’
In the case of multinational undertakings covered by Council Directive 94/45/EC of 22 September 1994 on the establishment of a European Works Councils (recast by Directive 2009/38/EC of 6 May 2009) or a procedure in Community-scale undertakings and Community-scale groups of undertakings for the purposes of informing employees and consulting with them, the subsidiary requirements in the Annex to the Directive provide for the EWC to be informed and consulted, among other matters, about ‘cut-backs or closures of undertakings, establishments or important parts thereof, and collective redundancies’.
Council Directive No. 2002/14 establishing a framework for informing employees and consulting with them in the European Community specifies that: ‘Information and consultation shall cover:… the situation, structure and probable development of employment within the undertaking or establishment and on any anticipatory measures envisaged, in particular where there is a threat to employment’.