In the current state of emergency, apart from the situation of healthcare and the economy, what could be a more urgent problem than the labour market situation of employees? During this period, many employers find themselves in a position where their operations slow down and, as a result, fewer tasks are assigned to their employees. In such cases, it is often heard that the employer would like to unilaterally achieve a reduction in wages by reducing working hours.
To understand the legal framework of this situation, it is worth starting from the fact that employment is established by an employment contract, which forms the core of this legal relationship. The employment contract must always contain the details of the employer and the employee, the employee’s base salary and their job title.
In addition, a natural element of the employment contract is the amount of time the employee is required to spend working, or in certain cases being on standby. Daily working time may be full-time or part-time, and the parties often assign even more specific time periods to this.
However the parties regulate the issue of working time, it is an agreement between the employee and the employer. Accordingly, neither party has the opportunity to modify it unilaterally. It follows from this that any change is only possible by the mutual will of the parties. There are, however, certain circumstances and rules that employees and employers must take into account.
One common solution known in everyday practice is the regulation of the scheduling of working time by the employer. The employer may, subject to conditions regulated by law and contract, determine between which times the employee performs their work.
However, this is balanced over the entire period, and the employee is required to perform, on average, the amount of work undertaken in the contract within the calendar month, or even over a longer period. Another special rule, perhaps more relevant in the current situation, is that the employee is entitled to their base salary if the employer fails to fulfil its employment obligation during the scheduled working time. This is called downtime. However, an exception applies if this is the consequence of an unavoidable external cause.
This means that if the employer is unable to provide work to the employee due to an unavoidable external cause, the employee is not entitled to remuneration. In connection with the coronavirus, “unavoidable external cause” may seem like an obvious basis for reference in many cases, but it is worth bearing in mind that, before a court, the employer must be able to substantiate that this ground actually existed in the given situation.
It is also worth saying a few words about the rules of termination. Perhaps the most important point is that the employer is required to justify the termination. Under the applicable rules, the reason for termination may include, among other things, a reason related to the employer’s operations. Such reasons include workforce reduction, reorganisation and quality replacement. Reorganisation means the termination of a given position where, as a result of the subsequent organisational restructuring, the tasks belonging to the terminated position are distributed among the other employees. Workforce reduction occurs when the employer is forced to reduce the size of its organisational unit, for example for cost-efficiency reasons. Quality replacement, which is less closely related to the subject of this article, means a situation where the employer terminates the employment relationship because it wishes to employ a person with higher qualifications or more qualifications than the employee.
It is important to note in connection with termination by the employer that the employer is subject to numerous obligations in this regard, and must be able to prove that the reason for termination is real, clear and reasonable. If these employer obligations are not fulfilled, the termination may become unlawful.
As can be seen, even in such a critical period, the parties are bound by the rules laid down in their employment contract. However, labour law provides a certain degree of flexibility in cases where circumstances arise that the parties cannot manage. In our next article, we will discuss the special labour law rules of the state of emergency declared due to the coronavirus pandemic.