General rules for terminations
Is there a particular form required for a termination?
England
To dismiss an employee, employers must follow the statutory dismissal and disciplinary procedures. This requires a 3 stage procedure:
- Write to the employee stating the reasons for contemplating dismissal.
- Have a meeting with the employee to discuss the reasons for dismissal.
- Offer the employee the right to an appeal hearing.
The statutory procedures, which were introduced in 2004, have not been a success, and the current plan is to revoke them in 2009.
France
The dismissal procedure is strictly organized by the French Labor Code, and will vary according to the grounds for dismissal. Generally, an employee whose dismissal is contemplated will be convened to a preliminary meeting, where he/she will be given the grounds for his/her dismissal and given the opportunity to explain him/herself. The employee will then be given a written notice of his/her dismissal by registered mail with return receipt requested. Dismissal/redundancy procedures are strictly defined within specific statutory time periods.
Belgium
When an employer decides to dismiss an employee, it may either give notice of termination, during which time the employee must continue to work, or terminate the employment contract effective immediately by paying compensation in lieu of notice. Notice period to be performed: In order to be valid, the notice of termination must be in writing, specifying the start date and duration of the notice period. If the contract is terminated by the employer, the notice must be sent by registered mail or served by bailiff. If the employee resigns, notice may be sent by registered mail, delivered by bailiff or hand delivered to the employer. If notice is given by registered mail, the notification is deemed effective on the third working day following the mailing date. For this purpose, Saturday is considered a working day. For blue-collar employees, the notice period start to run on the first day of the week following that in which notice was given.
For white-collar employees, the notice period starts to run on the first calendar day of the following month. If notice is given by registered mail at the end of a week or month, the three-working-day rule explained above should be taken into account. Termination with compensation in lieu of notice: There are no formalities to be observed when a party decides to terminate an employment contract effective immediately. The compensation should be paid in a lump sum at the time of termination.
Portugal
The dismissal must be in writing to be lawful. Any dismissal document must be signed by the competent representative of the legal entity employing the individual.
Germany
The dismissal must be in writing to be lawful. Any dismissal document must be an original and signed by the competent representative of the legal entity employing the individual.
Ireland
An employer can generally terminate a contract by giving written notice. If dismissal arises from an allegation of misconduct, it is necessary to have regard to the principles of natural justice and the employee's rights to fair procedures as well as the employer's own disciplinary procedures and the Code of Practice on Grievance and Disciplinary Procedures set out in Statutory Instrument No. 146 of 2000. In the event of dismissal by reason of redundancy, there are procedural requirements for dismissing an employee with at least two years continuous service, which includes the issuing of a Form RP50 at least two weeks prior to the date of termination of employment. Where dismissal is by reason of incompetence, poor performance, or misconduct (except gross misconduct) an employer is required to have given the employee warnings over a period of time, e.g. verbal warning, first written warning, final written warning, dismissal.
Spain
The dismissal must be in writing to be lawful. Any dismissal document must be signed by the competent representative of the legal entity employing the individual.
Italy
In order to be lawful, dismissal must be notified in writing. Moreover, whenever dismissal is due to the employee's conduct, the employer must follow a specific disciplinary procedure set forth by Law to provide the employee with the opportunity to accurately defend his/her position. Prior to Legislative Decree no. 188/2007 resignation did not require a particular form, however now, if an employee wants to resign he/she must follow a procedure: he/she must fill out a form either on the internet or before the competent bodies office (e.g. Labour Offices, Unions).
The Netherlands
A distinction must be made between i) termination by giving notice ii) termination by judicial rescission and iii) termination by mutual consent.
- notice to terminate may be given after permission from the Centre for Work and Income ("CWI") has been obtained. In the absence of such a permit, the notice will be voidable.
- Both employers and employees may request that the court rescind a contract of employment on the grounds of "serious cause". If the court deems that serious cause does indeed exist, it will rescind the contract. No further formalities are required.
- Contracts of employment may be terminated by mutual consent on the basis of a settlement agreement.
What are the statutory minimum notice periods in your jurisdiction?
England
For employees with 1 month to 2 year's service the statutory notice period is 1 week. For employees with more than 2 years service there is an additional 1 week's notice for each year of service up to a maximum of 12 weeks. However, the majority of employment contracts stipulate more favourable notice provisions.
France
The statutory minimum notice period upon dismissal/ redundancy depends on the employee's length of service within the same company: There is no statutory minimum notice period for an employee who has less than 6 months of service; 1 month's notice period is required for an employee with 6 months to 2 years of service; and 2 month's for an employee with at least 2 years of service. Longer notice periods can be contractually agreed upon or provided for by CBAs. With very few exceptions, the Labor Code does not provide for a notice period in the case of a resignation.
Belgium
With respect to white-collar employees, Belgian law does not state what constitutes adequate notice, except for employees whose gross annual salary does not exceed €28,580 (amount valid for 2008). If the employee's gross annual remuneration is less than €28,580, the employer must give at least three months' notice for each commenced five-year period of employment. If the employee's gross annual remuneration is €28,580 or more, the duration of the notice period must be agreed by both parties at the time of termination. It should be noted that the notice period may not be less than the statutory minimum of 3 months for each commenced five-year period of employment. In the absence of an agreement between the parties on the length of the notice period, the matter will be referred to the competent labour court.
Even though no specific rules have been laid down to determine the length of the notice period, the courts usually take into account the employee's age, seniority, function and remuneration (i.e. all salary and perquisites normally paid to the employee in return for work performed, e.g. a thirteenth month, double vacation allowance, bonuses, private use of a company car, group insurance premiums, etc.). These criteria leave ample room for discretion, and there is no way to calculate the length of the notice period with any real certainty. In practice, the so-called Claeys formula is often used to determine the length of the notice period. This formula is based on an analysis of the case law and reflects the various factors relied on by the labour courts (seniority, age, function and remuneration) in order to determine the notice period. Even though it is common practice to use this formula, it should be noted that the result thereof is not binding on the courts. The current trend is at least one month per year of employment.
Portugal
According to the Portuguese Labour Code it is not possible to dismiss a employee without justification. In case of dismissal with fair ground, no prior notice is required, but formal disciplinary proceedings have to be conducted. In case of dismissal due to redundancy, extinction of work position or collective dismissal, the employee is entitled to a 60 days of prior notice.
Germany
Statutory rules provide minimum notice periods depending on the duration of the employment relationship. If the employee has less than 2 years of service the employer must give 4 weeks' prior notice, expiring on the 15th or at the end of a month. If the employee has 2 years service, the employer must give one month's prior notice, expiring at the end of a month. The notice period increases in line with the length of service to a maximum of 7 months by the end of a month after at least 20 years of service as follows: 5 years of service 2 months by the end of a month, 8 years of service 3 months by the end of a month, 10 years of service 4 months by the end of a month, 12 years of service 5 months by the end of a month, 15 years of service 6 months by the end of a month, 20 years of service 7 months by the end of a month. The employee is entitled to remuneration during the notice period. By contract longer notice period than the statutory ones can be agreed upon.
Ireland
An employee is entitled to the greater of any written notice period provided for in a contract of employment and notice provided for in the Minimum Notice and Terms of Employment Acts, 1973-2005 as follows: 13 weeks to 2 years: One weeks' prior notice, 2 years to 5 years service: Two weeks prior notice, 5 years to 10 years: Four weeks prior notice, 10 years to 15 years: Six weeks prior notice, 15 years and upwards: Eight weeks prior notice.
Spain
There is no need to give prior notice in the event that a dismissal is based on disciplinary reasons. However, if a dismissal based on redundancy reasons is carried out, the employer must give a minimum of 30 calendar days' prior notice to the employee (or pay in lieu of notice).
Italy
The duration of the notice period is established by National Collective Labour Agreements and varies based on the employee's level/qualification and length of service. In the absence of such an agreement, the relevant period is established by Labour Courts. Employees are entitled to terminate their employment agreement either
- by giving notice to the employer (which is established under the National Collective Labour Agreements and is usually shorter than the notice due to them in case of termination) or
- without giving any notice, if a just cause ("giusta causa") for termination exists.
The Netherlands
Once the employer has been granted permission to give notice of termination, the statutory notice periods to be observed by an employer are: 1 month if the employment has lasted less than 5 years; 2 months if the employment has lasted 5 years or more, but less than 10 years; 3 months if the employment has lasted 10 years or more, but less than 15 years; 4 months if the employment has lasted for 15 years or more. The above notice periods may only be decreased by means of a collective bargaining agreement, but may be increased by means of any written agreement. The statutory notice period to be observed by the employee is 1 month.
Is there any statutory protection against dismissals?
England
Dismissals have to be for a potentially fair reason and a fair procedure must be followed. The potentially fair reasons are conduct, capability, redundancy, retirement, illegality and some other substantial reason. Employers must act reasonably and follow the statutory dismissal and disciplinary procedures before dismissing an employee. Employees with 1 year or more continuous service can claim unfair dismissal if these provisions are not complied with. Note in certain cases the 1 year qualifying period does not apply.
France
The decision to terminate an employee's contract must be based on legitimate grounds. The grounds for the dismissal must be "real and serious", i.e.personal grounds (directly attributable to the employee) or economic grounds (not directly attributable to the employee, but in particular to economic difficulties, technological changes, or the need to safeguard competitiveness).
Belgium
No.
Portugal
Dismissals without a disciplinary reason or for political or ideological motives are constitutionally forbidden. Therefore all employers must justify the dismissal and comply with the formalities of special proceedings applicable to each type of lay-off.
Germany
Where an employee has been employed for more than 6 consecutive months and the business employs more than 10 people, excluding trainees, the employee is protected against dismissal. Termination (with notice) of employment is only justified by reason of a "social justification" which means it must be based on:
- reasons that relate to the employee's person;
- the employee's conduct; or
- compelling business requirements which exclude the possibility of continuing to employ the person in business.
Ireland
The primary piece of legislation is the Unfair Dismissals Acts, 1977-2005. Generally speaking an employee must have at least one year's continuous service to be protected by the Act. The Acts provide that a dismissal must be fair in all of the circumstance and the onus of proof is on the employer to establish that the dismissal was not unfair. The grounds that would be regarded as "fair" include capability, competence or qualifications of the employee, conduct, redundancy or some other substantial reason. Failure to follow fair procedures or to have good grounds for dismissal may lead to an employee being entitled to continue in employment or to be compensated.
Spain
Spanish labour law is very protective towards employees and the grounds of termination are statutory. Thus, employers cannot terminate employment contracts unless the termination is based on a cause provided by the applicable laws and collective bargaining agreements; otherwise the termination will be considered unfair with the right to receive severance payments.
Italy
Under Italian Law the dismissal of employees is subject to stringent restrictions. Employers cannot dismiss employees at will and mere labour-saving dismissals are prohibited. Employees can only be Iawfully dismissed when there is a "just cause" ("giusta causa") or "justified grounds" ("giustificato motivo"). An employee can be dismissed for "just cause" where his/her misconduct makes the continuation of the employment relationship impossible, even on a temporary basis. As an alternative, an employee can also be dismissed for "justified reason" ("giustificato motivo") which means (i) a serious breach (but not as serious as in case of just cause) of his/her duties (the so-called "subjective justified reason" – dismissal) or (ii) any objective reason relating to the reorganization by the employer of its production activities or of its Labour force (so-called, "objective justified reason"– lay-off).
The Netherlands
The employer has to either apply for a permit with the Centre for Work and Income. The CWI will only grant a permit if, in balancing the employer's and employee's interests, he deems the proposed termination reasonable. Consequently, the employee must indicate the grounds on which the request is based while the employee may submit a defence. Thus, permission is not granted automatically. Or the employer has to request that the court rescind the contract of employment on the grounds of "serious cause". A serious cause will be deemed to exist if either:
- the circumstances are such that they would have amounted to an 'urgent cause' for summary dismissal if the contract had been terminated instantly; or
- there is a change of circumstances of such a nature that the contract should in all reasonableness be terminated instantly or on short notice.
Which persons are protected against dismissal in a special way, if any?
England
There are several classes of employees who are protected against dismissal in a special way. These include employees who carry out Trade Union related activities, pregnant employees and those on maternity leave, employee representatives, employees who have transferred with a business, whistleblowers and employees asserting statutory rights. Employees are also offered special protection against dismissal based on a discriminatory reason e.g. sex, age, race, sexuality, disability and religious belief.
France
Certain employees have varying levels of protection against dismissal, including: pregnant women; employees on sick leave as a result of a work-related illness or accident; employee representatives. In some instances, the employer will have to seek the Labour Administration's prior approval before dismissal. In other instances, possible dismissal or redundancy grounds will be more restricted.
Belgium
Certain categories of employees receive special protection against dismissal and cannot be dismissed pursuant to the general rules. In addition, employers that wish to dismiss protected employees will need specific grounds for doing so and must follow a special procedure. The main categories of protected workers are members of and candidates for the works council and the committee for prevention and protection at work, trade union representatives and pregnant women.
Portugal
A number of categories of employees have special protection against termination (e.g. members of the works council, pregnant women, breastfeeding women, employees on paternal leave etc.), and it is illegal to dismiss protected employees without prior consent from the appropriate board or authority. Unions representatives have also special protection regarding the burden of proof and the amount of compensation which they are entitled to.
Germany
A number of categories of employees have special protection against termination (e.g. members of the works council, disabled persons, pregnant women, employees on parental leave etc.), and it is illegal to dismiss protected employees without prior consent from the appropriate board or authority.
Ireland
Certain reasons for dismissal are deemed unfair, namely them being: trade union membership or activities; religious and political opinions; involvement in civil or criminal proceedings; exercising the right to protective leave; race, colour or sexual orientation; age; membership of the travelling community; or pregnancy. The requirement of unfair dismissal legislation to have one year's continuous service in order to claim does not apply where the dismissal is related to pregnancy, maternity or matters connected therewith or is connected with the trade union membership or activities.
Spain
There is a wide range of individuals who are especially protected (e.g., pregnant women, women on maternity leave or sick leave due to pregnancy or lactation reasons, individuals on leave for childcare, individuals with a reduction of their working hours due to child care, employee representatives, etc.). If a dismissal affects especially protected individuals and it has not been justified as being fair by the employer, the dismissal would be declared null and void and the employer must reinstate the affected employee into his/her employment position and pay him/her the salaries from the date of dismissal to the date of reinstatement.
Italy
Italian Labour Law establishes special protection for some categories of employees (pregnant women; employees on parental leave; employees getting married; members of RSU) against termination of the employment relationship. It is illegal to dismiss protected employees; such dismissals are considered null.
The Netherlands
A number of categories of employees have special protection against termination by notice. Giving notice is prohibited by law in certain situations, such as while the employee is unable to perform his work due to illness, unless the employee has been ill for at least two years. Nor may a contract of employment be terminated by notice while an employee is pregnant or doing military service. Notice of termination may not be given to an employee who is a member of a works council or to an employee on account of his membership in a trade union or his activities in connection with a trade union, unless carried out during working hours without the employer's permission. Furthermore, an employer must first obtain the permission of the court if he wishes to terminate by notice the employment of a candidate for election to a works council or an employee who was a member of a works council less than two years prior to the notice. The above prohibitions or restrictions on giving notice do not apply if the termination is on account of the business activities of the employer being discontinued.
What are the legal regulations on a termination "for cause", i.e. an extra-ordinary termination which takes effect immediately?
England
It is possible for an employer to summarily dismiss an employee, which is immediate dismissal without notice, in response to a repudiatory breach of contract, but an employer would need strong evidence to justify this. An example of a repudiatory breach is gross misconduct. In these circumstances an employer is permitted to follow the modified statutory dismissal and disciplinary procedure. The employer must give the employee written reasons for the dismissal and invite the employee to an appeal hearing.
France
An employer may dismiss an employee without notice for serious or gross misconduct. The employer must first be able to demonstrate that the dismissal grounds are "real and serious" and that they are directly attributable to the employee. It must also be considered that the employee's conduct is so serious or flagrant that the employee's continued presence in the company during the notice period is impossible.
Belgium
- Termination formalities: Either party may terminate an employment contract without notice and without compensation if there is serious cause (dringende reden/motif grave) for doing so. An employment contract may only be terminated for serious cause if the offence that justifies termination has been known to the terminating party for no more than three (3) working days. Moreover, in order for such a termination to be valid, the other party must be notified of the reason for terminating the contract without notice or prior to expiry within three (3) working days following termination. Such notice may be sent by registered mail, delivered by bailiff or handed in person to the other party.
- Definition of serious cause: The act provides little explanation as to what is meant by 'serious cause' and only states that it must be a wrongdoing that makes further professional co-operation between the employer and the employee immediately and definitively impossible. It should be noted that the concept of serious cause is interpreted narrowly by the courts.
The terminating party must be able to provide the labour court, in the event of litigation, with evidence of all facts justifying the termination.
Portugal
There can be no dismissal which takes effect immediately, there always has to be proceedings in which the employee has the opportunity to present their defence. However during dismissal proceedings based on disciplinary reasons the employee can be suspended and forbidden to work (the employer must however continue to pay the employee's salary). There are few exceptions, such as regarding domestic workers. In this case, in the event of disciplinary infringements, the employer may terminate the contract immediately, provided that a written notice and description of the reasons of the dismissal is delivered to the employee.
Germany
It is also possible to terminate the employment without any notice period, but it is difficult to justify such termination. There must be severe reasons which make the continuance of the employment unacceptable, e.g. theft, sexual harassment, etc. In case of an extra-ordinary termination, the employee has the right to know the reason of the termination.
Ireland
It is possible in Ireland to terminate employment without notice or pay in lieu of notice in circumstances where the employee's conduct is of sufficient gravity to justify such termination. This is judged by reasonable standards and may include such matters such as theft or sexual harassment. Summary dismissal will not relieve the employer of applying fair procedures.
Spain
There are two main categories of individual dismissals (collective dismissals follow a different and more demanding procedure): disciplinary dismissals and dismissals based on redundancy reasons. A disciplinary dismissal is based on serious misconduct by the employee and can be imposed with immediate effects. The causes that may give rise to this type of dismissal are regulated in the Statute of Workers and in collective bargaining agreements. Dismissals for redundancy reasons must be based, mainly, on economic, technical, organisational or production reasons and notified with 30 days in advance.
Italy
An employee can be dismissed for just cause ("giusta causa") where his/her misconduct "makes the continuation of the employment relationship impossible, even on a temporary basis" (art. 2119 of the Italian Civil Code). Examples of "giusta causa" are theft, riot, serious insubordination, and in principle, any other behaviour by the employee which definitively undermines the employer's trust in the employee. In these cases, an employee may be dismissed without notice or payment of the indemnity in lieu.
The Netherlands
If an urgent cause exists, an employer may summarily dismiss an employee. An urgent cause is a circumstance or set of circumstances which are such that the employer cannot in all reasonableness be expected to allow the contract to continue. In reality whether an urgent cause actually exists will depend on the specific circumstances of the case. In practice, an urgent cause for summary dismissal will only exists very rarely (e.g. theft, threats of violence etc).
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