THE DISMISSAL IN COMPARATIVE PERSPECTIVE
With this short description of framework there is of course the pretense to treat exhaustively the matter as complex as the systems of dismissal, in a comparative perspective.
The aim is rather to offer a synthesis of easy consultation to guide you in this complex discipline.
The latest available data concerning the stiffness of the output, say that the index of the Italy is 1.77 , that of Germany and 3.00 (hence, it is more difficult to dismiss, it must also to be noted the trend of the Germans in a greater degree of difficulty of dismissal) and that of Denmark and 1.63 ” Italy still has an index below the European average.
Other characteristics that differentiate the Italian case from that of other countries is: the German judge can order the reinstatement if he believes that the dismissal for economic reasons is not founded in Sweden and Norway, the judge can order that instead of the dismissal the company should assess the ability to move to another task the worker; in Germany, France, Sweden and the Netherlands there are still constraints to the possibility of dismissal for economic reasons that take into account the needs of business and worker; and, on the specific article 18, the ‘European Labor Law Network declares: “the remedy ‘reinstatement’ is the most Widespread remedy among the countries’ i.e. the reintegration is the remedy more widespread. Few, in fact, the countries that are based solely on the compensation in the event of dismissal, and also in those Scandinavian countries (Denmark, Norway, Sweden) where the flexsecurity and reintegration is expected. It is also provided in the systems taken as a model of ‘flexsecurity’, such as Denmark (where, however, has limited application), Norway, the Netherlands and especially the Sweden: here the Employment Protection Act (Anställningsskidd) ensures the reintegration in the event of unjustified dismissal, mean while collective agreements ensure a robust network of protection in the event of unemployment; in other words, this safeguards the employment relationship and is summed and are not replaced by those in the market.
Looking at the situation that characterizes some of the major European countries you can detect the following:
In Denmark, there are no general rules governing the protection of workers against the dismissal without just cause. Those who enjoy such protection, on the basis of collective agreements, may not be dismissed only if there is a valid reason based on their ability or their conduct or on the needs of the company. The dismissed employee may request the reasons for this measure, if he has at least nine months of experience in the company. The model of ‘flexsecurity’ (fusion of the words in the English language ‘flexibility’ and ‘security’) provides the companies a wider margin to lay off their employees with respect to the rest of the Union, but offers employees a higher level of protection. The dismissed employee receives 90% of final salary for the first year of unemployment, 80% for the second, 70% for the third and 60% for the quarter. The company pays the subsidy and helps the worker to find a new job, with training courses, the model has led the Denmark to have a low level of unemployment.
In France, the employee victim of an unlawful dismissal (in which the procedure has not been observed) or without just cause may contact the so-called Council of arbiters, a court composed of employee representatives and employers, which has the task of mediating. The arbitrators may compel the employer to pay the worker compensation proportional to the years of employment and the age, or may propose the reinstatement of the worker, this solution can be rejected by the employee or the employer. The individual dismissals are still easier than in Italy. The employee fired without justification is only entitled to a compensation (minimum six months of salary). The dismissal for economic reasons is possible only in the case of closure or transformation of the business, as in the case of bankruptcy or restructuring. The employer has, however, the obligation at that point to propose measures to convert and retrain before the dismissal. Unemployment benefits, the beneficiaries are subjected to rules much more stringent than in the past, have the obligation to prove with regularity that they are in search of a job.
In Germany, the termination of an individual is of two options, with notice: both for disciplinary conduct reasons and for economic reasons. Without notice: due to gross negligence of the employee or for urgent reasons which make it impossible to continue the employment relationship. Before dismissal the employer must consult the enterprise committee, which evaluates the legality of the dismissal. In the case of unjustified dismissal, the employee has the right to compensation proportional to the age and the age – from 12 to 18 monthly installments – (in 95% of cases) or to be reinstated in the enterprise (2% of cases).
It should also be added that between 2003 and 2005, the labor market was thoroughly reformed, was made much more flexible. The unemployed has decreased, from 5 million in 2006 to 2.7 in 2011. The unemployment grant of (67% of the last net salary) shall be granted for one year after the loss of the place. After you receive other grants: 680 euro for an apartment (including 374 euro calculated to live) and the health insurance. The dismissal is easier for businesses with less than 10 employees. The rest must be justified. The fixed-term contracts may be renewed up to two years, and for not more than three times.
In Great Britain, the law protects the employee employed for at least two years. The dismissal is considered unjustified when it is bound to the period of maternity leave (with a few exceptions), to membership of a trade union or to some of the reasons of health and safety, to assert the rights provided for by law, in England and Wales, the refusal to work in shops and outlets of gamble during Sundays. If the dismissal is illegal, the employee has the right to compensation, or reinstatement. The employment contracts are divided into ‘employment’ (makes the worker an employee) and ‘services’ (rule one exchange of services who’s signature remains in fact in its own right). there is no collective bargaining in the private sector and is always less in the public sector.
In Netherlands, before being able to carry out an individual dismissal, the employer must ask permission from the director for the district Administrator of employment, explaining the reasons and to obtain the agreement of the employment council. If the dismissal is judged unlawful, the employee has the right to compensation and the reinstatement. The employer can avoid the reintegration, by proposing a higher indemnity.
In Portugal, the dismissal must be legitimate: the inability of the employee or the need to eliminate the place for economic reasons are recognized only within certain limits, it is instead possible to dismiss on disciplinary grounds if the behavior of the employee, for seriousness and consequences, making it impossible for the continuation of the employment relationship, if the judge declares the dismissal void the employee can ask the backlog and the reinstatement or a compensatory allowance calculated based on the length of service.
In Spain, the employer must always motivate individual dismissal. This can be distinguished in three legitimate causes for dismissal: – for disciplinary reasons; – for reasons of force majeure; – for “objective causes”- In the event the dismissal is not legitimate, the employee may ask the reintegration. In case of refusal by the employer, the employee is entitled for compensation equal to 45 working days for each year of retirement, plus the arrears.
It should be noted, however, that the employee for an indefinite period of time can be sacked even without just cause. The company is only responsible to pay him damages, that labor market reform launched by the government Rajoy in February that reduced a lot: 20 days instead of 45 for a year of work (for 12 years maximum) in the case of firms in difficulty, 33 for the other (for 24 years maximum instead of 42).
In Sweden, the dismissed employee individually or the trade union have the right to challenge the measure. If the dismissal is not the case of a just cause, it may be canceled at the request of the employee, who may obtain compensation for the damage.
The latest available data concerning the stiffness of the output, say that the index of the Italy is 1.77 , that of Germany and 3.00 (hence, it is more difficult to dismiss, it must also to be noted the trend of the Germans in a greater degree of difficulty of dismissal) and that of Denmark and 1.63 ” Italy still has an index below the European average.
Other characteristics that differentiate the Italian case from that of other countries is: the German judge can order the reinstatement if he believes that the dismissal for economic reasons is not founded in Sweden and Norway, the judge can order that instead of the dismissal the company should assess the ability to move to another task the worker; in Germany, France, Sweden and the Netherlands there are still constraints to the possibility of dismissal for economic reasons that take into account the needs of business and worker; and, on the specific article 18, the ‘European Labor Law Network declares: “the remedy ‘reinstatement’ is the most Widespread remedy among the countries’ i.e. the reintegration is the remedy more widespread. Few, in fact, the countries that are based solely on the compensation in the event of dismissal, and also in those Scandinavian countries (Denmark, Norway, Sweden) where the flexsecurity and reintegration is expected. It is also provided in the systems taken as a model of ‘flexsecurity’, such as Denmark (where, however, has limited application), Norway, the Netherlands and especially the Sweden: here the Employment Protection Act (Anställningsskidd) ensures the reintegration in the event of unjustified dismissal, mean while collective agreements ensure a robust network of protection in the event of unemployment; in other words, this safeguards the employment relationship and is summed and are not replaced by those in the market.
Looking at the situation that characterizes some of the major European countries you can detect the following:
In Denmark, there are no general rules governing the protection of workers against the dismissal without just cause. Those who enjoy such protection, on the basis of collective agreements, may not be dismissed only if there is a valid reason based on their ability or their conduct or on the needs of the company. The dismissed employee may request the reasons for this measure, if he has at least nine months of experience in the company. The model of ‘flexsecurity’ (fusion of the words in the English language ‘flexibility’ and ‘security’) provides the companies a wider margin to lay off their employees with respect to the rest of the Union, but offers employees a higher level of protection. The dismissed employee receives 90% of final salary for the first year of unemployment, 80% for the second, 70% for the third and 60% for the quarter. The company pays the subsidy and helps the worker to find a new job, with training courses, the model has led the Denmark to have a low level of unemployment.
In France, the employee victim of an unlawful dismissal (in which the procedure has not been observed) or without just cause may contact the so-called Council of arbiters, a court composed of employee representatives and employers, which has the task of mediating. The arbitrators may compel the employer to pay the worker compensation proportional to the years of employment and the age, or may propose the reinstatement of the worker, this solution can be rejected by the employee or the employer. The individual dismissals are still easier than in Italy. The employee fired without justification is only entitled to a compensation (minimum six months of salary). The dismissal for economic reasons is possible only in the case of closure or transformation of the business, as in the case of bankruptcy or restructuring. The employer has, however, the obligation at that point to propose measures to convert and retrain before the dismissal. Unemployment benefits, the beneficiaries are subjected to rules much more stringent than in the past, have the obligation to prove with regularity that they are in search of a job.
In Germany, the termination of an individual is of two options, with notice: both for disciplinary conduct reasons and for economic reasons. Without notice: due to gross negligence of the employee or for urgent reasons which make it impossible to continue the employment relationship. Before dismissal the employer must consult the enterprise committee, which evaluates the legality of the dismissal. In the case of unjustified dismissal, the employee has the right to compensation proportional to the age and the age – from 12 to 18 monthly installments – (in 95% of cases) or to be reinstated in the enterprise (2% of cases).
It should also be added that between 2003 and 2005, the labor market was thoroughly reformed, was made much more flexible. The unemployed has decreased, from 5 million in 2006 to 2.7 in 2011. The unemployment grant of (67% of the last net salary) shall be granted for one year after the loss of the place. After you receive other grants: 680 euro for an apartment (including 374 euro calculated to live) and the health insurance. The dismissal is easier for businesses with less than 10 employees. The rest must be justified. The fixed-term contracts may be renewed up to two years, and for not more than three times.
In Great Britain, the law protects the employee employed for at least two years. The dismissal is considered unjustified when it is bound to the period of maternity leave (with a few exceptions), to membership of a trade union or to some of the reasons of health and safety, to assert the rights provided for by law, in England and Wales, the refusal to work in shops and outlets of gamble during Sundays. If the dismissal is illegal, the employee has the right to compensation, or reinstatement. The employment contracts are divided into ‘employment’ (makes the worker an employee) and ‘services’ (rule one exchange of services who’s signature remains in fact in its own right). there is no collective bargaining in the private sector and is always less in the public sector.
In Netherlands, before being able to carry out an individual dismissal, the employer must ask permission from the director for the district Administrator of employment, explaining the reasons and to obtain the agreement of the employment council. If the dismissal is judged unlawful, the employee has the right to compensation and the reinstatement. The employer can avoid the reintegration, by proposing a higher indemnity.
In Portugal, the dismissal must be legitimate: the inability of the employee or the need to eliminate the place for economic reasons are recognized only within certain limits, it is instead possible to dismiss on disciplinary grounds if the behavior of the employee, for seriousness and consequences, making it impossible for the continuation of the employment relationship, if the judge declares the dismissal void the employee can ask the backlog and the reinstatement or a compensatory allowance calculated based on the length of service.
In Spain, the employer must always motivate individual dismissal. This can be distinguished in three legitimate causes for dismissal: – for disciplinary reasons; – for reasons of force majeure; – for “objective causes”- In the event the dismissal is not legitimate, the employee may ask the reintegration. In case of refusal by the employer, the employee is entitled for compensation equal to 45 working days for each year of retirement, plus the arrears.
It should be noted, however, that the employee for an indefinite period of time can be sacked even without just cause. The company is only responsible to pay him damages, that labor market reform launched by the government Rajoy in February that reduced a lot: 20 days instead of 45 for a year of work (for 12 years maximum) in the case of firms in difficulty, 33 for the other (for 24 years maximum instead of 42).
In Sweden, the dismissed employee individually or the trade union have the right to challenge the measure. If the dismissal is not the case of a just cause, it may be canceled at the request of the employee, who may obtain compensation for the damage.
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