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CJEU: Exclusion of Temporary Employment Contracts from the Duty to Motivate Dismissal Violates EU Law

The case concerns a prejudicial question from a Polish court regarding a dispute between a fixed-term worker and his former employer. According to Polish law, temporary employment contracts are excluded from the obligation for employers to communicate the reasons for dismissal. The Polish court asked the CJEU whether this situation conforms with the principle of non-discrimination laid down in Article 4(1) of the EU framework agreement on fixed-term work (transposed by Directive 1999/70/EC of 28 June 1999).

It is up to the national courts to determine whether the fixed-term workers are here in a comparable situation to workers employed for an indefinite duration. However, the CJEU implies that this is the case. The Court also clearly indicates that the Polish legislation establishes a difference in treatment to the detriment of workers employed on fixed-term contracts. As the temporary workers do not have the right to receive the dismissal reasons, the only legal method of getting to know if the reasons are valid is to file a claim before the courts.

The national court also needs to see whether the difference in treatment can be justified on objective grounds. The intervening Polish government refers to the pursuit of the legitimate objective of a “national social policy aimed at full productive employment,” which requires great flexibility on the labour market. Guaranteeing the fixed-term workers the same level of protection as that enjoyed by permanent workers against termination of an employment contract with a notice period would jeopardise the attainment of that objective. However, the CJEU rejects this as a genuine need. “If the mere temporary nature of an employment relationship were considered to be sufficient to justify a difference in treatment between fixed-term workers and permanent workers, the objectives of the framework agreement would be rendered meaningless and it would be tantamount to perpetuating a situation that is disadvantageous to fixed-term workers.” Even if the employers need to motivate the dismissal, they can still terminate the contract in a flexible manner. Therefore, the CJEU states that the exclusion of temporary workers from legal dismissal protection violates the EU Framework Agreement on temporary work.

Further, the question arises whether the employee can use the EU Framework Agreement (and Directive 1999/07/EC) before a national court. In principle, an EU Directive has to be implemented by the Member States and does not have a direct horizontal effect between individual private parties. However, the CJEU states that the difference in treatment undermines the fundamental right to an effective remedy enshrined in Article 47 of the EU Charter of Fundamental Rights since a fixed-term worker is deprived of the possibility of assessing beforehand whether he or she should bring legal proceedings against the decision terminating the employment contract. Article 47 of the Charter is sufficient in itself to create a direct and horizontal effect. Therefore, in this case, the employee can in fact use Art. 4(1) of the EU Framework Agreement in conjunction with Article 47 to set aside the national legislation that violates EU law.

Takeaways :

  • Simply treating temporary workers less favourably because of the temporary nature of their contract is not allowed.
  • Rules that exclude temporary workers from receiving the reasons for their dismissal violate EU law.
  • Employees can base their legal claims before the national courts directly on the EU framework agreement in conjunction with the fundamental right to an effective remedy (Art. 47 EU Charter).
  • For Belgium: the question remains open whether the exclusion of contracts with a duration of less than 6 months from the right to receive the dismissal reasons on the basis of CBA No. 109 violates EU law as well.

Source: CJEU 20 February 2024, C-715/20, KL v. X sp z o.o., ECLI:EU:C:2024:139