Commencement and content of employment relationship
Is any form required for an employment agreement?
England
An employment contract does not need to be in writing, although this is the usual form. A written statement setting out the particulars of an employee's employment is required within 2 months of the employee commencing employment. This sets out the main terms and conditions of the employment but is only evidence of a contract. There is no stand alone claim for failure to provide written particulars of employment, however, this can be added on to another claim.
France
An employment contract can generally be oral or written, but the employer must provide the employee with a written statement of the essential terms governing the employment relationship. However, a written contract is necessary: if an applicable collective bargaining agreement ("CBA") requires it; for fixed-term contracts; for part-time contracts; and for apprenticeship employment contracts. Civil and criminal liabilities have been statutorily provided in the event that the aforementioned contracts are not made in writing. In particular, the employer risks having the fixed-term contract requalified into an indefinite-term contract and the part-time contract requalified into a full-time contract. As for criminal liabilities, the employer risks a fine of €1,500 for each unwritten part-time contract it has entered into, and up to €3,750 for each unwritten fixed-term contract it has entered into.
Belgium
In general, the Employment Contracts Act does not define any specific formalities for a valid employment contract, which may be oral or even implied. There are a few exceptions to the rule that an employment contract can be oral. The following types of contracts must be in writing: contracts for a fixed term or a specific project; part-time employment contracts; student employment contracts; employment contracts for remote work; and employment contracts for household work. In addition, the following clauses must be in writing in order to be valid: trial period clauses; and non-compete covenants. Finally, it should be mentioned that written employment contracts must comply with the provisions on the use of languages in labour relations.
Portugal
A general employment contract is not required to be in any particular form and can be oral or in writing. Nevertheless there are some employment contracts that are subjected to written form, namely
- promissory labour contracts,
- contracts for subordinated tele-work,
- fixed term labour contracts,
- labour contracts with a foreign employee (except employee from European Economic Area and from countries with which Portugal has entered into special agreements),
- labour contracts in service commission,
- labour contract with multiple employers,
- part-time labour contracts,
- early retirement contracts and
- contracts for occasional posting of workers.
In case of non compliance with this obligation, the Portuguese Labour Code sets forth that the employee is subject to a general employment agreement for an undetermined period. For all contracts the Portuguese Labour Code requires that the employer provides to the employee a written statement of the main contents of the employment relationship within 60 days from beginning of the execution of the contract.
Contravention to this rule is deemed a mild administrative offence.
Germany
An employment contract is not required to be in any particular form and can be oral or in writing. The German "Law of Proof of Substantial Conditions Applicable to the Employment Relationship" requires that the employee gets a written statement of the main contents of the employment relationship one month after commencement of the employment at the latest, but there is no statutory sanction in case of a contravention.
Ireland
Employment contracts are not required to be in any particular form and can be oral or in writing. However the employer is required to provide the employee with a written statement of the main contents of the employment relationship within one month of commencement of the employment. The statutory sanction is an award not exceeding 4 weeks pay in case of a contravention.
Spain
An employment contract is considered to exist wherever an individual is rendering services within the organizational scope, and under the direction of another party, and receives remuneration from this latter party as consideration. Thus, an employment contract may be entered into either orally or in writing. This general rule is subject to the condition that an employee is entitled to request from his or her employer that the employment contract be executed in writing, even after employment has commenced. In addition, special regulations require that temporary contracts must be executed in writing and using official forms.
Italy
Italian Labour Law does not require the employment agreement to be in any particular form. However the employer must furnish in writing, on the same day of employment, some information about the main terms of the agreement. This can be done through the employment letter, or through any other document given to the employee. In case of breach of such provisions, the competent bodies could apply administrative sanctions to the employer. Furthermore, according to Italian Labour Law, some specific elements of the employment relationship, if present, must be provided in writing in order to be binding upon the parties (e.g. trial period, fixed-term).
The Netherlands
Contracts of employment are not required to have any particular form. Consequently, they may be concluded orally or in writing. However, pursuant to an EC Directive of 14 October 1991, article 7:655 of the Dutch Civil Code provides that, within one month of entering into an employment contract, an employer is obliged to provide an employee with a written statement of relevant particulars, such as a job description, the salary and, if the contract was entered into for a definite period of time, its duration.
What are the main objectives for fixed-term employment contracts?
England
Fixed term contracts are now unusual in the UK, since the introduction in 2004 of legalisation which rendered unlawful the less favourable treatment on grounds of fixed term status. Employees employed on successive fixed-term contracts for a period of 4 years or more become permanent employees.
France
A fixed-term employment contract (contrat à durée déterminée) may be used in a limited number of circumstances, in particular to: replace a temporarily absent employee (eg, illness, suspension of contract); replace an employee whose position is to be eliminated; replace an employee who is working part-time on a temporary basis; carry out the duties of an employee who is about to join the company; meet a temporary increase in business; perform a particular assignment that will take a specific period of time to complete; perform seasonal work; and fill certain other positions where it is customary (as defined by decree or under the relevant collective bargaining agreement) not to employ employees under indefinite-term contracts (contrat d'usage), (e.g., hotels and restaurants, theatres, removal services, teaching).
An employer may not enter into a fixed-term employment contract on a long-term basis to perform duties falling within the normal business operations of the company. Moreover, the law prohibits the use of fixed-term contracts to: replace an employee on strike; perform dangerous activities; fill a vacancy created by a temporary increase in business in a company where an employee was made redundant on economic grounds within the last six months (although there are rare exceptions to this prohibition); fill a position previously occupied by a temporary employee or by an employee under a fixed-term contract (except for a contrat d'usage, which may provide for successive contracts in certain areas of activity, e.g., television , radio). This contract can generally be renewed once and can last up to 18 months (renewal included).
Belgium
Employers usually prefer fixed-term contracts or contracts for a specific project when temporary assistance is required. Such contracts must be in writing and entered into with the employee no later than the day on which employment effectively starts. The contract must clearly specify its term or the project involved. If there is any doubt as to the duration of the contract, an employment contract of indefinite duration will be deemed to exist between the parties. In addition, if the parties have concluded a certain number of successive uninterrupted fixed-term contracts or contracts for specific projects, they will be deemed to have entered into an employment contract of indefinite duration unless the employer can prove that the successive contracts were justified by the nature of the work or the particular circumstances. A fixed-term contract that continues after its expiry date will be considered of indefinite duration.
Portugal
Fixed term contracts are admissible in limited circumstances. They are allowed for objective temporary reasons, e.g. for completion of a defined project, to fill the absence of another employee or if the type of service justifies a fixed term and also if there is an exceptional increase in the undertaking's business. They are also allowed in the case of launching a new activity of uncertain duration, as well as start-up of an undertaking or establishment and in the case of hiring employees looking for their first job or long-term unemployed workers. Special provisions allow fixed term contracts for a maximum of three years which may be extended to six years in special cases. Termination of a term employment agreement due to employer's decision prevents the hiring of the same or another employee for the same position during a period equal to one third of the length of the first contract including its renewals, although there are exceptions.
Germany
The "normal" contract is not fixed, but fixed term contracts are permissible in certain circumstances. They are generally allowed only for objective reasons, e.g. for completion of a defined project, to fill the absence of another employee or if the type of service justifies the fixed term. Special provisions allow fixed term contracts for a maximum of two years in case no previous contract between employer and employee exists in either a fixed or permanent capacity.
Ireland
Under Irish legislation for the protection of fixed term workers, employees are protected from less favourable treatment than comparable permanent employees. They can also become entitled to permanent contracts in certain cases, e.g. 4 years service on at least 2 fixed term contracts. Employers are free to enter in to fixed term contracts with employees but must observe certain requirements in the event that they intend to extend the contract for a further fixed term. This includes writing to the employee informing him/her of the "objective grounds" justifying the decision to renew for a fixed term as opposed to offering a permanent contract. Objective grounds must not relate to the employee's fixed term status.
Spain
As a consequence of a "stability in employment principle", the general rule in Spain is that employees be hired through permanent employment contracts. Temporary employment contracts are only permitted under certain special cases and for specific purposes such as the covering of excess market demand for products or services, the completion of the work or services to be rendered or to cover the situation in which an employee is on sick leave, maternity leave or other specific unpaid leaves, or where it is necessary to fill in a vacancy temporarily during the process of selection or promotion to a permanent position. Besides, contracts for training employees to initiate the practice of a profession (under an official degree) are also fixed-term contracts.
Italy
Under Italian Labour Law, an employment agreement is normally an open-term contract. As a general rule, fixed-term employment agreements can be entered into whenever justified by technical, organizational or production related reasons, or by the need to replace employees temporarily absent from work who are entitled to keep their job position. Should the relevant reasons not be indicated, or not indicated in full, or if they do not exist at all, said fixed-term agreements could be transformed – upon a claim by the employee or upon investigation by the competent authority - into an open-term agreement starting from the hiring date. In this case, the employee concerned would be considered permanent staff for all purposes with consequent application of the relevant rules, including those concerning termination of the employment. The duration of a fixed term agreement with the same employer and for the same duties cannot exceed 36 months; only few exceptions are admitted to this rule.
The Netherlands
A contract for a definite period in principle terminates by operation of law upon the expiry of that period. In principle, therefore, prior notice is not required, although an obligation to give notice may be stipulated in the contract.
The same rule applies to a second and third employment contract for a definite period of time which succeed the original contract for a definite period, provided that the total duration of all such contracts does not exceed three years. If a fourth successive employment contract for a definite period is entered into or the three year limit is exceeded, the fourth or last contract of employment, as the case may be, is considered to have been entered into for an indefinite period and the above rule concerning termination by operation of law does not apply.
If the time span between the employment contracts for a definite period is three months or longer, they are not regarded as successive but rather as separate contracts of employment for a definite period which terminate by operation of law at the end of the period.
Are there any statutory maximum working hours in your country? What is the usual number of working hours in practice?
England
Non-renewal of a fixed term contract is a dismissal, which must be justified under the unfair dismissal rules. The statutory maximum working hours are 48 hours per week. However, employees can sign an 'opt-out' and agree to work longer hours although they can withdraw their opt-out at any time on 3 months' notice. There is an exemption from the 48 hour week for employees with 'unmeasured' working time which is generally used for directors and senior managers. The average working hours per week are 37.5.
France
The maximum working time is a 48-hour week. Employees must not however work more than: an average of 44 hours a week during any 12 consecutive weeks, 48 hours during any given week, 10 hours a day, 220 hours of overtime a year. Usually, employees have a working week of 35 hours. However, employers can agree on a longer work week with their employees. If so, employers must pay any time worked over 35 hours a week in the same way as overtime (although there is no entitlement to additional days off). Working hours can be organized more flexibly for executives (autonomous executives) by agreeing to a set number of days to be worked a year (this number cannot exceed 218 days, allowing, on average, nine additional days off a year). Generally, all employees (including autonomous executives) must be granted both: a daily rest period of 11 consecutive hours, a weekly rest period of 35 consecutive hours, including Sunday. The above rules do not apply to senior executives (cadres dirigeants).
Belgium
Standard working time may not exceed 8 hours per day or 38 hours per week. All work performed outside these limits is subject to overtime pay and must be compensated by an equal amount of paid time-off. The rules on overtime do not apply to, amongst others, persons entrusted with supervisory or high-level positions (such as directors, managers, assistant managers, department heads, etc.) or to sales representatives and household help. As a general rule, work at night and on Sundays is forbidden. However, a number of exceptions exist (e.g. work in successive shifts, work that is continuous by nature due to the nature of the activities performed, etc.). In addition new working-time schedules, allowing for work on Sundays and at night, may be introduced in all sectors.
Portugal
As a general rule, full time employees render a maximum of 8 hours of work per day and 40 hours per week. Some collective bargaining agreements reduce the daily or weekly limit. Through individual agreement or collective bargaining agreement, the normal work period may be defined on an average basis, in which case the limit must not exceed 12 hours per day and 60 hours per week. In this case, the duration of work, including overtime work, can not exceed 48 hours in a 4 month period, except if a collective bargaining agreement states a longer reference period. As a general rule, 11 hours is the minimum rest period required between two days of work. On Sundays and public holidays employees are not allowed to work, although that may be admissible in some types of jobs and in the case that a special licence is granted.
Germany
The maximum working time is a 48 hour week, made up of 8 hours a day, 6 days a week. The number of hours worked may vary from day to day, so it is possible to work up to ten hours a day provided that the average number of hours worked does not exceed eight hours a day (in a 6 day week) over a 6 month period. In practice, most collective agreements limit working time to between 35 and 40 hours a week. The minimum rest period between two work periods is in principle 11 hours. Work on Sundays or public holidays is generally forbidden, although it is permissible in some types of enterprises (e.g. hospitals, hotels and restaurants, culture, sports etc.) and in case a special licence is granted. In the retail trade employees who work on Saturdays must be given one Saturday off per month.
Ireland
Subject to certain exceptions and exemptions the following apply:
- an employee may not work more than 48 hours a week averaged over a 4-week reference period;
- an employee is entitled to a rest period of not less than 11 consecutive hours in each period of 24 hours;
- an employer must provide an employee with a break of at least 15 minutes after the employee has worked 4 hours and 30 minutes. An employee is also entitled to a break of at least 30 minutes after having worked for 6 hours, which break may include the 15-minute break referred to above;
- an employee is entitled to at least 24 consecutive hours rest in each period of 7 days.
In practice, working time is between 35 and 40 hours a week. Work on Sundays attracts a Sunday premium which varies between industries. Work on public holidays attracts additional benefits.
Spain
The maximum working time is regulated in the Statute of Workers. It can be reduced by collective bargaining agreements and by individual employment contracts. The Statute of Workers sets out the following general rules:
- the maximum working time is 40 hours per week;
- workdays exceeding 9 hours are not permitted, unless a different distribution of the workday is established by the collective bargaining agreement or, in its absence, this is agreed between the employer and the employee representatives;
- a minimum 12-hour break between the end of one workday and the beginning of the next shall be respected; and
- employees are entitled to a weekly uninterrupted rest period of one and a half day, which as a general rule must comprise Saturday afternoons or Monday mornings and all of Sunday, unless otherwise agreed.
Italy
The maximum working time is normally 40 hours per week. National Collective Labour Agreements can establish a lower maximum amount of weekly hours (e.g. 37.5 for the Banking Sector). Average working hours cannot exceed 48 hours for each period of 7 days, including additional overtime hours. The minimum rest period between two working periods is 11 hours. An employee is also entitled to 24 consecutive hours of rest period for each period of 7 days, which are normally enjoyed on Sunday.
The Netherlands
The maximum working time is 60 hours per week, made up of 12 hours a day. Over a period of 4 weeks time the employee is permitted to work 55 hours a week average at the most and over 16 weeks time 48 hours average a week. Under certain circumstances work on Sundays is permitted. The employer has to make sure, however, that the employee does not have to work on at least 13 Sundays a year. In addition, there are specific rules on night and on-call duties.
What are the relevant statutory provisions for part-time workers in your jurisdiction?
England
Part-time workers must not be subjected to any less favourable treatment compared to full-time workers on the basis of their part-time status. This means that part-time workers should have the same terms and benefits of employment which may be pro-rated where possible and should not be subjected to a detriment because of their part-time status.
France
Part-time work may be introduced by the employer or at the employee's request, after consultation with the works council or the staff delegates and, in the absence thereof, the Labor Inspector. Any employment contract that provides for working hours lower than the working hours provided for by
- statute,
- collective bargaining agreement or
- common practice within the company
- is considered to be a part-time employment contract.
A part-time employee must sign his/her employment contract before joining the company. Otherwise, he/she may claim to have been employed under a full-time contract. Part-time employees have the same rights as full-time employees. Part-time employees are included in the headcount on a pro rata basis.
Belgium
Part-time employment contracts must be in writing. Part-time employees must not be treated less favourably than full-time employees. Part-time employees must work at least 3 successive hours.
Portugal
Part time workers must not be treated less favourably than full time workers, unless regarding objective reasons concerning the reduction of working hours. The employer must internally advertise the opening of vacancies on a part time or full time basis in order to allow the employees to change from one system to the other. Employees with one or more children under 12 years of age and minor employees have the right to ask for a decrease of their working hours. In this case the employer may only object to such demand due to organizational reasons.
Germany
All vacancies must be advertised as being available on a part time basis, unless they do clearly not fit for part time work. Part time workers must not be treated less favourably than full time workers. Employees with 6 months' service have the right to decrease their working hours if working for an employer with 15 or more staff, but must give three months' notice of their intention to reduce their hours.
Ireland
The Protection of Employees (Part-Time Work) Act, 2001 provides for non-discrimination of part-time workers. The objectives of the legislation are to ensure that part-time workers are give parity of treatment in respect of their conditions of employment as comparable full-time employees. Less favourable treatment can be justified if there are objective reasons. Those reasons cannot relate to the part-time status of the employee and must represent a legitimate purpose and be appropriate and necessary to achieve that purpose. There is no statutory obligation on employers to permit workers to decrease their working hours. However, a government code of practice indicates that it is best practice for employers to have policies on improving access to part-time work.
Spain
Part time workers must not be treated less favourably than full time workers. The performance of overtime is forbidden for part-time workers.
Italy
A part-time agreement is defined as an individual contract that establishes a reduced working time compared to the ordinary working time of 40 hours provided by law, or any time established by National Collective Labour Agreements. The relevant law regulating part-time contracts provides that they may take the following forms:
- horizontal: the reduction in hours is established in relation to daily hours;
- vertical: work services are performed on a full-time basis, but for limited periods in the course of the week, month, or year;
- combined: work services are performed according to a combination of the horizontal and vertical contract.
Part-time employees have rights of priority in case of employment of full-time personnel. An employer who does not respect the right of priority wilI pay the part-time employee the retribution difference for the following 6 months. The employer shall also inform full-time employees if he wishes to hire part-time employees, thus enabling the full-time employees to have their employment agreements changed as well.
The Netherlands
Employers may not discriminate against part-time workers. Part-time employees must not be treated less favourably than full-time employees. Part-time contracts of employment have to be concluded in writing.
What are the "benefits" or "legal advantages" of an employment continuing over certain time periods?
England
After 1 year employees have the right to claim unfair dismissal. However, there is no qualifying period for unfair dismissal in certain cases such as maternity. After 2 years employees are entitled to a statutory redundancy payment. After 1 year parents have the right to 13 weeks' unpaid leave to look after children under 5 years of age. Special rules apply regarding the accrual of holiday leave in the first year of employment. See later provisions in relation to Statutory Maternity Pay.
France
Here below are a few examples of legal benefits linked to years of service: Certain leaves of absence (for example, parental leave) after at least 1 year of service. Minimum damages in case of unfair dismissal in a company with at least 11 employees (after at least 2 years of service). Part of the salary is maintained during illness (after at least 3 years of service). Participate in the election of employee representatives (after at least 3 months of service) and be a candidate (after at least 1 year of service). Benefit from profit-sharing plans (participation). A length of service provision can be provided for in the profit-sharing plan. In this case, the law provides that the length of service condition is capped at 3 months of service. The employees' period of continuous service is carried over in the case of a transfer of an undertaking.
Belgium
The maximum length of a trial period is 12 months. At industry level, some premiums are only paid after a certain level of seniority is reached.
Portugal
There are several statutory benefits: during the first 90 days of continuous work the trial period during which both employee and employer may terminate the contract without prior notice ends. This period may be extended for 180 or 240 days depending on the complexity or responsibility required for the position the employee occupies. Frequently, collective bargaining agreements set forth that employees are entitled to an allowance based on the employee's seniority.
Germany
There are a several statutory benefits: After the first 4 weeks of continuous employment the employee is entitled to sick pay, after 6 months' continuous employment an employee falls within the scope of legal protection for unfair dismissal, after 6 months' continuous employment an employee can change his full time status to only part time and after at least 6 months' continuous employment the full vacation entitlement takes effect.
Ireland
There are few statutory benefits of employment over a certain time. The most significant are: subject to certain exceptions, for the first 12 months of employment the employee is not entitled to the legal protection of the Unfair Dismissals Acts; a minimum period of service is required to qualify for certain types of leave; the Redundancy Payments Acts 1967-2007 provide a minimum entitlement to a tax-free redundancy payment for employees who have at least two years' continuous service; and fixed term workers whose contracts have been renewed may, subject to certain conditions, become entitled to a contract of employment of indefinite duration.
Spain
The legal advantages related to the length of employment are mainly related to Social Security benefits, which require a minimum contribution period to the Social Security system in order to be granted. As regards to the severance payment for unfair dismissal, employees with permanent employment contracts are entitled to a legal severance payment of 45 days' salary per year of employment with a maximum limit of 42 months' salary, therefore, the final amount would depend on the length of employment. In addition, some collective bargaining agreements establish a "bonus" based on the length of employment.
Italy
As a general rule, Italian Labour Law does not provide any "benefit" or "legal advantage" which can only be enjoyed by an employee after a certain period of employment, with a few exceptions such as unemployment compensations.
The Netherlands
The statutory notice period to be observed by the employer increases when the employment has lasted for a certain period of time.
Are there any statutory or collective regulations on minimum wages in your country?
England
Workers are entitled to a minimum hourly rate of pay based on their age, which is updated every year. All employers, regardless of their size, are obliged to pay the national minimum wage. The current rates are £5.52 for ages 22+, £4.60 for ages 18-21 and £3.40 for ages 16-18.
France
The statutory gross monthly minimum wage is currently €1,308.88 for a full-time employee. Collective bargaining agreements often provide for their own minimum wage, which will apply if more favorable (i.e. higher than the statutory minimum wage) to the employee.
Belgium
The application of minimum wages is regulated by collective bargaining agreements concluded within each industry. The minimum wage is determined based on the position, age and seniority of the individual employee.
Portugal
The government sets forth every year the general minimum wage. Collective bargaining agreements concerning a vast number of economic activities also set forth minimum wages for each working category, taking also into account the years of service of the employees in each category. These provisions are mandatory for the employers.
Germany
Statute allows the government to set minimum wages. They exist already for the mailing services, the building industry and for cleaners. Other industries are currently under discussion. There are also a lot of collective bargaining agreements containing certain minimum wages and salaries, and the parties of the employment relationships which are bound by those agreements must not go below them.
Ireland
The National Minimum Wage Act 2000 sets the minimum wage rate at €8.65 per hour for an experienced adult employee with effect from 1 July 2007. An experienced adult employee is one who has been employed for over 2 years and who is over the age of 18. The Act provides sub-minimum rates for employees under 18 (70% of the national minimum wage), employees in the first year of employment since the age of 18 (80%). employees in the second year of employment since the date of first employment over the age of 18 (90%).
Spain
The Statute of Workers provides for an "interprofessional" (i.e., for all categories of employees) minimum monthly salary, which is determined on a yearly basis by the Government, taking into consideration the following year's forecasts for certain economic indexes. For 2008, the interprofessional minimum annual salary has been set at €600 per month. In addition, collective bargaining agreements also establish the minimum salary corresponding to each category as well as the salary structure to be applied by the employer.
Italy
The Italian Constitution states that the employee has the right to a salary which is proportionate to his/her working activity and, in any event, suitable to grant to same employee and his/her family a respectable life. While Italian Labour Law does not regulate the minimum salary threshold, National Collective Labour Agreements set out a so-called "base salary', i.e. the minimum amount of salary to be paid in several business sectors.
The Netherlands
The employer's primary obligation, to remunerate the employee, derives from the definition of a contract of employment. In principle, the parties are free to decide the amount of remuneration provided that a certain minimum, as set out in the Minimum Wages Act and the Minimum Holiday Allowance Act, is paid. Employees of 23 and over are entitled to this minimum wage. This Act also provides that an employer is, in principle, obliged to pay a holiday allowance equal to a certain percentage, currently 8%, of the employee's salary.
What is the minimum statutory vacation entitlement in your jurisdiction?
England
Workers are entitled to a minimum of 24 days' paid holiday a year. This is due to increase to 28 days in April 2009 (pro-rated for part-time workers). There is no right to have public holidays off work. It is common for employment contracts to contain more favourable holiday entitlement.
France
Employees are entitled to a minimum of five weeks' paid holiday a year. In addition, there are about ten public holidays every year. The law grants additional paid leave for family-related events.
Belgium
Employees are entitled to two paid vacation days for each month worked during the previous calendar year, with a maximum of 20 days for employees working a five-day week. During their vacation period, all white-collar employees are entitled to receive a vacation allowance in addition to their normal salary, corresponding to
- their normal remuneration for each day of vacation (enkel vakantiegeld/simple pécule de vacances) and
- a supplementary vacation allowance amounting to 92% of the employee's gross remuneration for the month during which s/he takes his or her principal vacation.
The system for blue-collar employees is different. The employer does not pay any salary for vacation days, but a blue-collar employee receives from his or her vacation fund an allowance that amounts to 15.38 per cent of the remuneration declared for social security purposes during the preceding year. These funds are financed by contributions from the employer. In addition, there are ten public holidays in Belgium.
When a public holiday falls on a Sunday or another day on which employees normally do not work, they are entitled to an additional day off. Furthermore, all employees are entitled to take paid leave for certain family events (e.g., weddings, the death of a spouse or child, etc.).
Portugal
Each employee is every year entitled to 22 business days off per year. However the employee may be entitled to an increase of one to three extra days, if the employee was never absent with no justification, or was only absent with justification for a maximum of three days in previous year. Under some collective bargaining agreements employees may be entitled to longer periods of vacation.
Germany
Each employee is entitled to 24 working days off every year, which includes Saturdays but excludes Sundays and Public Holidays. In practice 5 to 6 weeks of vacation is common. Working days are defined as Monday to Saturday, so for a five day week the statutory minimum vacation is 20 days. Employees under the age of 18 and disabled persons are entitled to more vacation.
Ireland
The entitlement is whichever of the following is the greater not exceeding four weeks paid annual leave:
- 4 working weeks in a leave year in which the employee works at least 365 hours (unless it is a leave year in which the employee changes employment);
- one-third of a working week for each month in the leave year in which the employee works at last 117 hours; or
- 8% of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks).
In addition, an employee is entitled to the benefit of 9 public holidays in each leave year.
Spain
The statutory holidays are 30 calendar days per year. This minimum annual leave is usually improved by collective bargaining agreements. In addition, employees are entitled to enjoy 14 days of public bank holidays.
Italy
An employee is statutorily entitled to 4 paid weeks of vacation every year. Employees can also request and are entitled to 2 consecutive weeks of vacation for a 1 year period of work and to the remaining two weeks in the following 18 months. The 4 week period cannot be replaced by any economic indemnity. On top of these legal provisions, National Collective Labour Agreements can establish more detailed provisions regarding enjoyment of the vacation period.
The Netherlands
Annual holiday entitlement is equal to at least four times the number of days worked per week under the contract of employment. An employer who works five days a week is therefore entitled to a minimum of 20 days' holiday a year. As a general rule, an employee's holiday is scheduled in line with his wishes, unless there are serious reasons for not doing so. However, if the employer fails to submit the serious reasons in writing, the holiday will be determined in accordance with the employee's wishes.
Are there any entitlements for continous salary payment in case of sickness?
England
The majority of employment contracts stipulate entitlement to contractual sick pay. Employees who are off work due to sickness for 4 or more consecutive days are entitled to statutory sick pay, which is currently £75.40 a week. Employees earning below the lower earnings limit do not qualify. Employees need to provide their employer with proof of their "incapacity". Statutory sick pay is subject to a maximum of 28 weeks in 3 years.
France
Employees who are absent due to illness or injury must obtain a medical certificate covering the period of sick leave. They receive daily indemnities from the social security system (for a maximum of three years). In addition, CBAs often specify that the employer must supplement social security payments for a certain period of time, up to the level of all or part of an employee's salary, depending upon his/her length of service. This is a personal obligation for the employer and it cannot recover these payments from Social Security.
Belgium
For white-collar employees, salary for the first month of illness/disability is paid by the employer. As from the second month, salary is partially paid by the employee's health fund.
Portugal
In case the absence due to sickness, the employer is not required to pay any salary to the employee. The employee is however entitled to an allowance provided by social security services, during the whole period of absence (after the third day), which is usually a little lower than the normal net salary. Under some collective bargaining agreements, the employee may be entitled to an extra payment from the employer during a certain period in order to assure the same monthly net remuneration, or to cover delays of the social security services.
Germany
An employee who has been employed for a minimum of 4 weeks is entitled to claim up to 6 weeks fully paid sick leave for a certified absence, where the individual employee is not to be blamed for his / her incapacity to work.
Ireland
Employees have no statutory entitlement to paid time off in the event of illness or injury. However, an employee may be eligible to receive social welfare benefits from the Department of Social and Family Affairs in respect of a period of absence due to illness. Where an employer provides sick pay at its discretion, it is usual for the contract of employment to provide that the employer will either pay a top-up between the amount receivable by the employee from the Department of Social and Family Affairs or alternatively, will pay full salary for a period of time and require the employee to refund to the employer any social welfare benefit receivable by the employee. Typically, employers provide sick pay for a limited period of time (sometimes on a reduced basis over time).
Spain
Employees are entitled to a paid sick leave period of a maximum of 18 months, which vary depending on the length of the sick leave. In case of common illness, employees must have contributed to the Social Security system during a minimum period of 6 months in order to be granted with this benefit. In addition, supplementary benefits to those granted by the Social Security system are usually established by collective bargaining agreements for the employees on sick leave due to common illnesses or labour and non labour accidents, which must be paid by employers.
Italy
Italian Labour Law does not follow a general rule for this matter. During a period of sickness employees shall receive all or part of their salary. The indemnity for blue collar and white collar employees in the business sector is paid by the competent body (I.N.P.S.). White collar employees working in other sectors and quadri (middle management) and dirigenti (management) receive the indemnity from their employer. The indemnity is equal to a percentage of the salary which increases as the sickness period extends. In such cases where the indemnity is paid by I.N.P.S., National Collective Labour Agreements can establish that the employer has to pay the difference in order to reach the amount of the total salary.
The Netherlands
In the event of an employee's illness, the employer must pay the employee at least 70% of his salary during the first 52 weeks of his illness. The amount paid can not be less than the minimum wage, but is not required to exceed the equivalent per day of 70% of the 'maximum daily wage'. An employer is free to agree to pay more than what is required by law, and it is not uncommon for employees to be paid 100% of their full salary for the first year of illness. If the employee remains ill after this period, and provided the employment contract is still in effect, the employer must continue to pay him 70% of his salary for a further period of 52 weeks. However, during the second year of illness, the requirement that the amount paid be at least equal to the minimum wage does not apply.
What are the statutory regulations for maternity leave in your jurisdiction?
England
Maternity leave is split into 2 periods. Ordinary maternity leave lasts 26 weeks. Women may also take a further 26 weeks' additional maternity leave. During ordinary maternity leave employees are entitled to all their terms of employment, excluding pay. During additional maternity leave employees are entitled to more limited terms. However, for babies due on or after 5 October 2008 the terms during additional maternity leave are the same as those during ordinary maternity leave. There are 2 weeks of compulsory maternity leave after the birth of the baby in which employees are not allowed to return to work. Employees must not be subjected to less favourable treatment on the basis of pregnancy or childbirth from the start of the pregnancy to the end of the maternity leave. Employees are entitled to statutory maternity pay if continuously employed for 26 weeks at the end of the qualifying week, which is the 15th week before the expected week of childbirth. Employees earning below the lower earnings limit do not qualify. Statutory maternity pay is paid for 39 weeks.
The first 6 weeks is at 90% of normal weekly earnings and the following 33 weeks is at £117.18 a week or 90% of normal weekly earnings, whichever is lower. Employees are also entitled to work for 10 keep in touch days during their maternity leave. Women who do not qualify for SMP are instead entitled to the State benefit of Maternity Allowance.
France
Entitlement to maternity leave depends on whether it is a single birth or a mutliple birth, and on how many children the employee already has: it varies between 16 weeks for a single birth bringing the number of children to one or two, and 46 weeks for the multiple birth of triplets. The relevant CBA can grant additional maternity leave. Following maternity or adoption leave, the employee has the right to return to her original position (or a similar position with the same remuneration). Employees on maternity, paternity or adoption leave are entitled to a daily allowance from the social security authorities. The employer is not required to pay salary during this time. However, CBAs frequently state that the employee's salary must be paid in full if the employee has a certain length of continuous service (usually one year's service on the date of the child's birth or adoption). Women on maternity leave enjoy a specific protection against termination by their employer.
Belgium
An employee cannot be dismissed as from the time she informs her employer that she is pregnant until one month after the end of her maternity leave. Furthermore, such an employee can only be dismissed for reasons unrelated to her pregnancy. Employers must provide 15 weeks' maternity leave, with a maximum of 6 weeks prior to the scheduled due date and 9 weeks after the birth. During this time, the employee is entitled to her regular salary, paid by the employer for the first month of maternity leave. After the first month, salary is paid by the health fund.
Portugal
An employee can be dismissed during pregnancy or up to the end of the breast-feeding period. However the dismissal process has to respect certain special requirements, which include a communication of intention of dismissal prior to the dismissal itself to the Commission for the Equality in Work and Employment. Employers must provide a minimum of 120 consecutive days maternity leave which may be extended in some cases, and pregnant women are not required to work in the periods of 30 days before the prospective day of childbirth and 6 weeks after the actual day of childbirth. During this time they are entitled to a maternity allowance from the social security services.
Germany
An employee cannot be dismissed during pregnancy or up to the end of the fourth month after the birth. Employees are also protected from dismissal during their absence from work. Employers must provide a minimum of 14 weeks' maternity leave, and pregnant women are not required to work in the periods of 6 weeks before the prospective day of childbirth and 8 weeks after the actual day of childbirth. During this time they are entitled to maternity pay and remuneration is shared by the employer and the state.
Ireland
Employees are entitled to 26 weeks' ordinary maternity leave. During this period of maternity leave the employee is not entitled to be paid by the employer. However, the employee may be entitled to maternity benefit from the Irish Government. There is a further entitlement to 16 weeks' additional maternity leave. However, during this period the employee is neither entitled to payment from the employer or maternity benefit from the government. The employee remains in employment during maternity leave and all statutory and contractual rights other than the right to receive remuneration and superannuation benefits are either preserved or suspended during the leave. Dismissals during maternity leave or many types of leave connected with pregnancy are void.
Spain
Spanish legislation is very protective towards maternity, paternity, adoption and pregnancy related situations in connection with employment termination. In relation to the maternity leave, in the event of the birth, adoption or fostering of a child, mothers are entitled to a leave period of 16 weeks. During this period, the employee shall receive a Social Security benefit equivalent to 100 percent of his/her Social Security "contribution base". In the event of multiple births or adoptions, the 16-week leave period is increased by two weeks per child, as from the second child. With regard to the paternity leave, the Statute of Workers sets out a paid leave of two days in the event of the birth of a child. In addition, according to a new regulation on the matter, fathers are now entitled to a 13-day leave due to paternity. During this period, the employee shall receive a Social Security benefit equivalent to 100 percent of his Social Security "contribution base".
Italy
From the beginning of pregnancy up to one year after the birth of the baby, women employees cannot be dismissed, except where there is:
- just cause ("giusta causa") for termination;
- shutdown of the company;
- shutdown of the business for which the employee works
- an unsuccessful trial period.
Dismissal shall be deemed null and void if it is notified to the mother or father due to their request for additional maternity leave or leave of absence due to the child's sickness. During the mandatory maternity leave, women employees must abstain from performing any working activity. Such period runs from two months before to three months after the birth of the child or, alternatively, from one month before to four months after the birth of the child. During this time women employees are entitled to maternity pay, equal to 80% of the salary, paid by the competent body (I.N.P.S). Resignation of mother employees during the above mentioned period is subject to specific rules.
The Netherlands
Under the Work and Care Act female employees have a right to maternity leave of at least 16 weeks. During this leave, they are entitled to a benefit equal to their current salary. An employer cannot give a notice terminating an employee's contract of employment while she is pregnant, during her maternity leave or of a period of six weeks following her return to work after the leave or after a period of occupational disability resulting from the pregnancy or birth, where the disability period succeeded the leave.
What are the statutory regulations for parental leave in your jurisdiction?
England
Employees are entitled to parental leave if they are birth or adoptive parents or assume parental responsibility and have continuous employment of 1 year or more. Parental leave is 13 weeks for each child up to the age of 5 years and is unpaid. Parental leave is extended to 18 weeks and up to the child's age of 18 years if the child is disabled.
France
Employees who have worked for at least one year before the date of their child's birth, or before welcoming a child no older than 16 years to their home with a view to adopting, can take parental leave or work part-time. This right lasts until the child's third birthday. However, when the adopted child is between 3 and 16 years old on arrival, the adoptive parent can take one year's parental leave from the date of arrival. If employees take parental leave, their employment contract is suspended and the employer does not have to pay compensation. However, the employees can receive certain indemnities from Social Security. Parents can also benefit from additional leave when their child is sick, which usually amounts to between three and five days depending on the age and number of children. However, if the child suffers from a serious illness or disability, the parents can ask to work part-time or suspend their employment contract for a maximum of 12 months.
Belgium
Parental leave may be taken by either parent and may be achieved by working on a part-time basis or by taking 3 or 6 months off during the first 6 years of the child's life.
Portugal
Parental or special leave may be taken by either parent and may be achieved by working on a part-time basis or through a leave period of up to 3 months or twelve months in the first case and 2 years of a leave period in the second case during the first 6 years of their child's life.
Germany
Parental leave may be taken by either parent and may be achieved by working on a part-time basis or through a leave period of up to 3 years during the first 3 years of their child's life.
Ireland
Employees are entitled to unpaid parental leave of up to 14 weeks (which can be taken in separate blocks of a minimum of 6 continuous weeks or on more favourable terms with the agreement of the employer). This can be taken in respect of a child the maximum age of which is 8 years or 16 years where the child has a disability. Employees are entitled to "force majeure" leave of up to 3 days in any period of 12 consecutive months or 5 days in any period of 36 consecutive months. "Force Majeure" leave is paid leave.
Spain
The Statute of Workers establishes many rights concerning the employees' needs to accommodate their family and professional lives, which are as follows:
- Mothers who are nursing children younger than nine months are entitled to a daily one-hour leave, which may be split into two periods. Alternatively, nursing mothers may choose to reduce their workday by one-half hour or accumulate them into working days in accordance with the applicable collective bargaining agreement, or with the terms agreed with the employer. As a consequence of the application of the principle of equal treatment and non discrimination on the grounds of sex, these rights are granted equally to both parents in the event that both are employed. However, only one of each parent can enjoy this nursing leave.
- Parents who are employed are entitled to an unpaid leave of absence of up to three years as from birth, adoption, or the fostering of a child. If both parents are employed by the same company, the company may decide if only one of them may enjoy this right.
A subsequent childbirth gives rise to a new leave of absence which will terminate any existing leave that has not yet ended. During the first year of parental leave, the employee has the right to return to his/her position. After the first year, the employee has a right to occupy a position in the same professional group or equivalent category. In addition, the employee has a right to receive special professional training upon returning to his/her employment. The entire parental leave period is counted for purposes of seniority within the employing company. - Employees who, for reasons of legal guardianship, have in their direct care any child under eight or a physically, mentally or sensorially disabled person who does not perform remunerated work shall be entitled to a reduction in working hours, with proportional reduction in wages, of between at least one eight and at most half of the duration of such working hours.
The above mentioned right will also be exercised by any person who needs to take care of a relative to the second degree of consanguinity or in-law who for reasons of age, accident or illness is unable to care for him/herself and does not perform any remunerated work. If both parents are employed by the same company, the company may decide if only one of them may enjoy this right. - Employees are entitled to an unpaid leave of absence of up to two years in order to care of a relative (up to the second degree of consanguinity or relationship of marriage) who, due to age, accident, or illness, is not self-sufficient or able to work. At the end of the leave period, the employee is entitled to be reinstated in the company. The first year of absence, the employee has the right to return to his/her former position. The abovementioned rights can be improved by collective bargaining agreements. In addition, employees are very protected if terminated during the leave situations.
Italy
Until the child reaches the age of 8, parents can share an aggregate voluntary leave of absence of 10 months. Such right can be enjoyed as follows: after ordinary maternity leave the mother can be absent for a period not exceeding 6 months (whether continuous or interrupted); the father can be absent for a period not exceeding 6 months (whether continuous or interrupted). However, if the father is absent from work for an uninterrupted period of at least 3 months, such limit is increased to 7 months, and the total leave of absence to 11 months; if there is only one parent, he/she can be absent for a period not exceeding 10 months (whether continuous or interrupted). Until the baby turns 3 years, the parental leave is paid at 30% of the ordinary salary; after the 3rd year, no salary will be payable to the absent employee.
The Netherlands
The Work and Care Act also contains provisions on parental leave. Employees who are parents are entitled to unpaid, part-time parental leave of a maximum of thirteen times the total number of hours worked per week. Parental leave must be taken over a continuous period of six months. As a general rule, the number of hours leave per week may not exceed 50% of the total number of hours worked per week. Employees who intend to take parental leave must inform the employer in writing at least two months before the starting date. In principle, employees are entitled to parental leave after two years of service. There is no entitlement to parental leave once a child has reached the age of eight years.
These pages may contain information of general interest about current legal issues, but do not give legal advice.
