Written Statement Directive
The Written Statement Directive refers to the Council Directive of 14 October 1991 (91/533/EEC), which relates to an employer’s obligation to inform employees of the conditions applicable to the employment relationship. This directive outlines a compulsory list of the minimum information every employer must provide to their employees within the first two months of the employment relationship in order to guarantee ‘transparent and predictable working conditions’. The list includes such aspects as the identities of the parties, the place of work, the category of the work, the expected duration of the employment relationship, the initial basic salary, and the length of the employee’s normal working day or week.
In light of the growing flexibility of the labour market, which results in more atypical forms of employment contract, the European Commission concluded that there was a need for an evaluation of this legislation as part of its REFIT Platform. In its 2016 Evaluation and Fitness Check roadmap , the Commission announced its intention to evaluate the Written Statement Directive, issued on 26 April 2017. This evaluation showed that, despite improving worker protection by providing a greater transparency of the labour market, the directive has several shortcomings.
- The scope of the directive does not adequately cover all EU workers, especially as it gives Member States leeway to define their interpretation of a ‘paid employee’.
- There is a lack of clarity as to whether some categories of workers (such as domestic employees) or new forms of employment (such as on-call work or ICT-based mobile work) are covered or not.
- There is insufficient direction regarding redress and sanctions in cases of non-compliance on the part of the employer.
- The two-month deadline for the employer to provide the information requested does not go far enough to support the objective of greater transparency, thus increasing the potential for undeclared work and abuse of workers’ rights.
On the basis of Article 157 of the Treaty on the Functioning of the European Union (TFEU), the Commission launched a consultation of the European social partners on the issue; a first phase was launched on 26 April 2017 and a second on 21 September 2017. As the social partners expressed no intention to initiate a dialogue, the Commission issued a proposal for a new directive on transparent and predictable working conditions in the EU on 21 December 2017. If passed, this directive would repeal Directive 91/553/EEC.
Based on Article 153(2)(b) of TFEU, the Commission proposal aims to contribute to the implementation of several principles set out in the European Pillar of Social Rights. It includes several significant changes compared to the existing legislation.
Scope: The scope of the legislation will be extended to all workers with an employment relationship more than or equal to eight hours in one month.
Definitions: The criterion for establishing worker status for the purpose of the text has changed to the European definition of the worker as a ‘natural person who for a certain period of time performs services for and under the direction of another person in return for remuneration.’ This definition, based on Court of Justice of the European Union (CJEU) case law, does not cover self-employed workers.
Information on the employment relationship: New elements were added to the 1991 list (e.g. duration and conditions of probation, remuneration of overtime). This also includes ‘key information about the determination of variable working schedules’, an element directly referring to the increase of casual or zero-hour contracts, as well as amendments to information related to the place of work to cover cases where there is no fixed or main place of work.
Timing of information: Information should be provided individually to each worker on the first day of the employment relationship at the latest.
In stark contrast to the 1991 directive, the proposal also includes minimum requirements relating to working conditions: a maximum duration of six months for any probationary period; the regulation of exclusivity clauses; the regulation of variable work schedules in order to ensure ‘a minimum predictability of work’; and provision for the worker’s right to ask the employer for a more secure and predictable form of work (such as full-time work). These minimum requirements could be modified by means of collective agreement at national level, provided that the overall degree of protection for workers is safeguarded.
On 7 February 2019, the European Commission, the European Parliament and the Council reached a provisional agreement on the European Commission's proposal for a new directive to create more transparent and predictable working conditions, in particular for workers in non-standard forms of employment. Marianne Thyssen, Commissioner for Employment, Social Affairs, Skills and Labour Mobility, welcomed the agreement with the following statement:
Today we have reached an agreement that will provide 200 million workers in Europe with more transparent and predictable working conditions. We are modernising European labour law and adjusting it to the new world of work. This is a major milestone to make the European Pillar of Social Rights a reality for our citizens.
The Parliament and the Council have now to adopt their formal position under the co-decision procedure for the text to become EU law.