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29 January 2016

European case law on fixed-term contracts protects workers against discrimination but does not discourage this form of employment practice

European case law helps protect fixed-term workers against discrimination but contributes little to restricting employer recourse to this form of non-standard contract. Such is the principal message of a recent ETUI publication presented on 26 January at a Monthly Forum.

According to political scientist Caroline de la Porte (University of Roskilde, Denmark), a co-author of the newly published working paper, ‘European case law offers rather restrictive scope for preventing the abuse of fixed-term contracts’.

The working paper examined 17 rulings issued by the Court of Justice of the European Union (CJEU) in relation to questions submitted by national courts during the 2005-2013 period. A majority of the cases related to litigation initiated by public sector workers.

By virtue of the principle of non-discrimination enshrined in the directive on fixed-term contracts adopted in 1999 on the basis of a framework agreement concluded among the European Social Partners, workers employed on fixed-term contracts must enjoy the same working conditions and benefits as comparable workers employed on open-ended contracts. This rule applies to pay, bonuses, training, social security contributions, etc.

In her presentation, Caroline de la Porte drew attention to the case of a Spanish hospital worker whose fixed-term contract had been renewed several times over a period of twelve years. Having finally obtained an open-ended contract, the worker claimed the length-of service increments to which she had not been entitled during the period of her employment on serial temporary contracts. The European Court ruled that the Spanish government was required to pay the litigant the corresponding pay increases retroactively.

By contrast, CJEU rulings have much more of a tendency to condone abusive employer recourse to fixed-term contracts and age discrimination. For example, in 2005 the Court ruled that a German law allowing extension of the maximum length of fixed-term contracts beyond two years for workers aged above 52 did not constitute age discrimination insofar as the purpose of the German law in question was actually to encourage the labour market access of older workers.

Pascale Vielle, professor of social law at the Catholic University of Louvain, was critical of the report because the authors, in their literature review, had omitted to refer to important contributions made by professional lawyers in the field. The study, as presented, was weakened, according to Professor Vielle, by this absence of reference to the illuminating commentaries of distinguished experts.

Read more:

Caroline de la Porte and Patrick Emmenegger, The Court of Justice of the European Union and fixed-term workers: still fixed, but at least equal, Working paper, 2016.

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