European Law Report - Equal treatment of part-timers
Fortunately, discrimination againt part-time workers is not a widespread problem in the EU. However, where it does occur it can affect a variety of terms and conditions, including pay, pensions, holidays and training. In a bid to combat the residual...
Fortunately, discrimination againt part-time workers is not a widespread problem in the EU. However, where it does occur it can affect a variety of terms and conditions, including pay, pensions, holidays and training.
In a bid to combat the residual cases of discrimination across the EU, the Part-Time Work Directive was adopted to wipe out less favourable treatment of part-timers. The purpose of that directive was, first, to remove any discrimination against part-time workers and, secondly, to facilitate the development of part-time work, particularly by the elimination of any obstacles which might discourage employers from making use of that form of work.
The directive required above all that part-time work be treated in the same way as full-time work, whether in relation to working conditions or to access to employment. A recent judgment of the European Court of Justice (ECJ) dealt with Italian national provisions which imposed an obligation on employers to give notice of part-time employment contracts to the competent authorites, failure of which could result in the imposition of an administrative fine for delay, which was not set at a fixed rate or at a ceiling. The same did not apply to full-time employment.
Fined thousands of euros by the Italian authorities for failure to notify part-time contracts, Subito Gmbh and Michaeler brought proceedings before the Italian courts, which in turn referred the matter to the ECJ for a preliminary ruling.
In the proceedings before the Court, the Italian government attempted to justify its national laws by arguing that notification of part-time employment contracts was instrumental in ensuring the monitoring of work in Italy and combating undeclared work. On the other hand, the EU Commission claimed that the obligation, on penalty of a fine, to notify the Italian authories of part-time contracts failed to adhere to the principle of equality of treatment of part-time and full-time workers enshrined in the Part-Time Work Directive.
As is the norm, the Advocate General gave his Opinion to the ECJ before it delivered its judgment. The Advocate General, in this case, concluded that EU law prohibits national law which imposes an obligation of notice on employers in respect of part-time employments as this notification requirement was found to be disproportionate. He further contended that given that women hold more positions as part-timer workers than men, the Italian law could also amount to sex discrimination, undermining the equality of men and women in the employment sector.
The European Court's findings were on a par with those of the Advocate General. The ECJ considered the requirement of notification of every part-time employment contract to constitute an administrative obstacle likely to limit the opportunities for part-time work. Moreover, the Court noted that there was no similar obligation to give notice in respect of full-time employment contracts.
The Court then dealt with whether the national law at issue was justified on the basis of an objective reason. The arguments raised by the Italian government in justification of its laws were not considered as sufficient by the ECJ, since the legal measure was disproportionate. There were other less disproportionate means to combat undeclared work, namely surveillance, monitoring and police resources.
Considering that the administrative formality and consequent penalty discouraged employers from making use of part-time work, the ECJ held the Italian law to be discriminatory against part-timer workers.
• Dr Grech is an associate with Guido de Marco & Associates and heads its European law division.
In a bid to combat the residual cases of discrimination across the EU, the Part-Time Work Directive was adopted to wipe out less favourable treatment of part-timers. The purpose of that directive was, first, to remove any discrimination against part-time workers and, secondly, to facilitate the development of part-time work, particularly by the elimination of any obstacles which might discourage employers from making use of that form of work.
The directive required above all that part-time work be treated in the same way as full-time work, whether in relation to working conditions or to access to employment. A recent judgment of the European Court of Justice (ECJ) dealt with Italian national provisions which imposed an obligation on employers to give notice of part-time employment contracts to the competent authorites, failure of which could result in the imposition of an administrative fine for delay, which was not set at a fixed rate or at a ceiling. The same did not apply to full-time employment.
Fined thousands of euros by the Italian authorities for failure to notify part-time contracts, Subito Gmbh and Michaeler brought proceedings before the Italian courts, which in turn referred the matter to the ECJ for a preliminary ruling.
In the proceedings before the Court, the Italian government attempted to justify its national laws by arguing that notification of part-time employment contracts was instrumental in ensuring the monitoring of work in Italy and combating undeclared work. On the other hand, the EU Commission claimed that the obligation, on penalty of a fine, to notify the Italian authories of part-time contracts failed to adhere to the principle of equality of treatment of part-time and full-time workers enshrined in the Part-Time Work Directive.
As is the norm, the Advocate General gave his Opinion to the ECJ before it delivered its judgment. The Advocate General, in this case, concluded that EU law prohibits national law which imposes an obligation of notice on employers in respect of part-time employments as this notification requirement was found to be disproportionate. He further contended that given that women hold more positions as part-timer workers than men, the Italian law could also amount to sex discrimination, undermining the equality of men and women in the employment sector.
The European Court's findings were on a par with those of the Advocate General. The ECJ considered the requirement of notification of every part-time employment contract to constitute an administrative obstacle likely to limit the opportunities for part-time work. Moreover, the Court noted that there was no similar obligation to give notice in respect of full-time employment contracts.
The Court then dealt with whether the national law at issue was justified on the basis of an objective reason. The arguments raised by the Italian government in justification of its laws were not considered as sufficient by the ECJ, since the legal measure was disproportionate. There were other less disproportionate means to combat undeclared work, namely surveillance, monitoring and police resources.
Considering that the administrative formality and consequent penalty discouraged employers from making use of part-time work, the ECJ held the Italian law to be discriminatory against part-timer workers.
• Dr Grech is an associate with Guido de Marco & Associates and heads its European law division.