The Labour Code was amended on several important points at the beginning of the year. The main reason for the amendments was to transpose the directives on transparent and predictable working conditions and work-life balance. For those who have missed our presentation earlier this year at the Belgian Business Club in Hungary on the topic, this article sums up the most significant changes.
Abuse of rights: the burden of proof to reverse
The Labour Code sets out the rules of evidence for the abuse of rights. According to the amendment, in a lawsuit it is sufficient for the claimant (typically the employee), to prove the facts, circumstances and harm underlying the violation of the prohibition, in which case the right holder, i.e. the employer, can only be relieved of liability if it proves that there is no causal link between the facts, circumstances and harm proved by the claimant.
Paternity and parental leave
The rules on paternity leave are amended. The father is entitled to ten working days’ leave, to be scheduled by the end of the second month following the birth of his child at latest (or, in the case of adoption, the finalisation of the decision authorising the adoption, at the latest by the end of the second month following the adoption) in two instalments, as requested by the father. However, an important rule for paternity leave extended to 10 days is that the employee is entitled to 100 % of the absence fee for days 1 to 5, but only to 40 % of the absence fee thereafter. The employer is not obliged to pay out any unused paternity leave at the end of the employment relationship.
Parental leave is a new legal institution, with a maximum term of 44 working days, which can be used up until the employee’s child reaches the age of three. To be eligible for parental leave, the employee shall be in the employment relationship for at least one year after the birth of the child – or, in the case of adoption, after the adoption decision has become final. During the period of parental leave, the employee is entitled to 10% of the absence fee.
Unilateral amendment of an employment contract
To further support work-life balance, the rules on amending employment contracts have changed significantly, with employees being able to request modifications to their employment contract in a number of cases. An employee (who is a parent to a child up to the age of eight, or who provides care) may request, in a reasoned written request, a change in the place of work or working hours, or may ask for teleworking or part-time employment.
If the employer refuses the employee’s request, it must provide reasons for the refusal, which must be clear, fair and reasonable. If the employee does not agree with the refusal, he or she can ask the court to replace the statement of consent. The court will decide the case in extra-ordinary procedure.
Termination of employment
Regarding termination of employment, the extension of the obligation to state reasons is a new feature. If the employee claims that the termination of employment took place because of requesting
- working time allowance for the period of personal care ,
- paternity leave,
- parental leave
- unpaid leave to care for a child, or
- the amendment of the employment contract (as described above)
the employer shall be obliged to provide the reasons of the termination of the employment relationship even if it may otherwise terminate the employment relationship without giving reasons (e.g. during a trial period or in the case of a retired worker). The employee has 15 days to file the request, and the employer shall provide the reasons of termination also in 15 days.
The cases of prohibition of termination are completed with the new legal provisions introduced by the amendment, so that the prohibition of termination covers:
- personal care during the period of working time allowance,
- paternity leave and
- parental leave.
A new provision on the legal consequences of wrongful termination of employment is that, in addition to the existing cases, the court will, on the request of the employee, restore the employment relationship even if the termination was contrary to the prohibition of abuse of rights.
The rules on the trial period in fixed-term employment are also changed to exclude certain abusive employer practices. Under the new provisions, no trial period may be set in case of the extension of a fixed-term employment relationship or in case of re-establishment within six months of its termination for employment in the same or a similar position. The use of the trial period is also limited in other respects: for fixed-term employment contracts of up to 12 months, the duration of the trial period must be set on a pro rata basis.
Employer’s obligation to provide information
The amendment extends the scope of information of which the employer must inform employees in writing. Accordingly, additional circumstances of an employment relationship that the employer is obliged to inform the new employees of are following:
- the employer’s training policy, the duration of the training which the employee is entitled to avail,
- the name of the authority to which to which the employer will pay the employment-related taxes,
- the days of the week working time may be scheduled on, the possible starting and finishing times of a working day according to the and the end time of the working day, the duration of the hours of work which may be worked, the
- the specific nature of the employer’s activity (uninterrupted, multi-shift, seasonal)
The employer must inform employees of changes in the circumstances covered by the obligation to provide written information at the latest when the change takes effect.
The amendment also extends the scope of the information to be provided in the event of abroad work with an expected period of more than 15 days, as separate information shall be be provided on the rules and conditions of reimbursement of travel, subsistence and accommodation expenses, and the contact of the national website that includes relevant information regarding the rights and obligations of the employer providing cross-border services and its posted employees.
Place of employment
The amendment also concerns the provisions on the definition of workplace. The previous text of the law stated that workplace must be specified in the employment contract, failing which the place of work shall be the place where the employee habitually carries out his work. According to the amendment, if it is not provided by the employment contract, the usual place of work for the for the position shall be considered as the place of work.
Working time and rest periods
Several rules changed regarding the scheduling of working time and rest periods, which are briefly summarised below.
In the case of working time banking, the employer shall determine not only the start and end dates of the working time banking period but also the duration of the working time to be completed during the working time banking period.
The amended Labour Code obliges employers to publish the rules on the working time schedule (work pattern) in order to inform employees. The amendment clarifies that the general rules on informing other parties apply to this obligation.
According to the new rules, no daily rest period needs to be allocated if the employer does not allocate working time or does not order extraordinary working time for the day immediately following the end of work.
The amendment also changed the rule on weekly rest periods in the case of irregular working time schedule. For employees who work in uninterrupted, multi-shift and seasonal work, the employer is obliged to provide an uninterrupted weekly rest period of 40 hours per month, instead of 40 hours per week, covering one calendar day, with the additional requirement that in this case, an average of 48 hours of rest per week must be provided in the working time banking period or the duration of the payroll period.
Exemption from work
The amendment extends the cases in which employees are exempted from the obligation to work. The new rules exempt employees from the obligation to work in all cases when the employee is unable to perform his or her duties due to incapacity for work on medical grounds.
Employees are also exempted from the obligation to be available for work for a maximum of five working days per year for providing personal care to a relative or a person living in the same household as the employee in need of care for a serious health reason. The absence shall be granted at the time requested by the employee, scheduled in two instalments at most.
Method of payment
While amending the Labour Code, the legislator has pursued the legal policy objective of increasing the relevance of payment by transfer in opposition to cash payment. Accordingly, payment by bank transfer has now become the general rule, payment of wages by cash is only possible upon the written agreement of the parties.
Reimbursement of expenses
Under the Labour Code, the employer is obliged to pay the employee costs which have reasonably incurred for the purpose of the employment relationship. Under the amendment, in addition to reasonableness, a new condition for the employer’s obligation to reimburse is the necessity of such costs.