An ‘employee’ is a party to an employment relationship characterised as a contract of employment (or contract of service) between the employer and employee. However, this is only one of several different legal formulations of the concept of ‘worker’. The scope of the labour laws of the Member States of the EU may start with the concept of employee, but such a limited concept often conflicts with EU labour market policies and legal regulations aimed also at other workers who are not ‘employees’, including self-employed persons.
As European Community law extended beyond the confines of the free movement of workers in a common market, with increasing interventions to regulate other areas of employment and industrial relations, the question arose of whether an EU concept of ‘employee’ would emerge, to which this developing EU labour law would apply, as EU legislation in this sphere is inconsistent and ambivalent.
In most cases, EU legislation leaves the definition of ‘employee’ to the Member States. Thus, the Acquired Rights Directive of 1977 ( Council Directive 77/187 , consolidated in Directive 2001/23 ) defines an employee as ‘any person, whom, in the Member State concerned, is protected as an employee under national employment law’. Directive 80/987 of 1980 on the protection of employees in the event of insolvency stipulates that the Directive is 'without prejudice to national law as regards the definition of the terms “employee”...’. Council Directive No. 2002/14 , establishing a framework for informing employees and consulting with them in the European Community, defines an employee as ‘any person who in the Member State concerned is protected as an employee under national employment law and in accordance with national practice’. 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 employment relationship is ambivalent, stating ‘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’ (see also Council Directive 94/33 of 22 June 1994 on the protection of young people at work).
The directives incorporating framework agreements negotiated by the European social partners follow this approach. For example, Council Directive 96/34/EC of 3 June 1996 on the Framework Agreement on parental leave concluded by UNICE, CEEP and the ETUC states: ‘This Agreement applies to all workers, women and men, who have an employment contract or employment relationship as defined by the law, collective agreements or practices in force in each Member State’.
It is not easy to explain the variations in the definition of ‘employee’ which affect the scope of EU legislation in the field of employment and industrial relations. Contrary to its refusal to countenance national definitions of ‘worker’ in the context of free movement, the European Court of Justice has been willing to defer to national definitions in other areas of labour regulation. The consequence is that EU law applicable to ‘employees’ covers different parts of the labour force in Member States depending on the national definitions of ‘employee’. The result is that while certain workers will qualify for protection of EU law as ‘employees’ in some Member States, the same workers will not be protected in other Member States.
See also: atypical work; casual worker; contract of employment; economically dependent worker; fragmentation of the labour force; homeworking; employment relationship; temporary agency wor ; undeclared work; worker.