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Poclava v Toledano: View from Littleton

Marc Delehanty writes for our monthly column “View from Littleton Chambers” in Tolley’s Employment Law Newsletter. This article first appeared in the April 2015 edition. 

As time progresses since the Charter of Fundamental Rights of the European Union (Charter) acquired full legal effect in December 2009, the Court of Justice of the European Union’s (CJEU) jurisprudence on its various articles, including those concerning workers’ rights, continues to develop. In this case, the CJEU, on a preliminary reference from a Spanish labour court, dealt with Art 30: “Every worker has the right to protection against unjustified dismissal, in accordance with Union law and national laws and practices.”Spanish law provides that an employee dismissed during a probationary period cannot claim for unfair dismissal. While in the grip of the economic crisis, Spain enacted a reform intended to bring greater flexibility to the labour market: employment contracts satisfying prescribed criteria could provide for a one-year probationary period (the Spanish reform) — a significant extension to the previously permissible duration.The claimant was a cook working at a hotel. Her employment was terminated after four months, on the basis that she had not completed her one-year probation period successfully. She brought a claim for unfair dismissal before a Spanish labour court, which referred to the CJEU the question of whether or not the Spanish reform infringed Art 30 of the Charter.The first issue for the CJEU was whether or not it had jurisdiction to answer the Spanish court’s question: the Spanish reform would have to fall within the scope of EU law. 

In this regard, the CJEU noted that the EU has the general competence to legislate for unfair dismissal (Art 153(2) TFEU). However, the court drew a distinction between having the competence and actually having exercised the competence. In this context, to establish that a domestic law of an EU member state is amenable to review for compliance with the Charter, it was not sufficient that the domestic law covered a situation in respect of which the EU could have legislated. The EU had not exercised its competence in relation to dismissal during probationary periods in employment.

Faced with this difficulty, the claimant pointed out that the EU had legislated in the field of fixed-term contracts, Council Directive 1999/70/EC, and argued that the one-year probationary period effectively rendered contracts such as hers a form of fixed-term contract.

However, the CJEU rejected this submission and concluded that it had no jurisdiction. Consequently, the court did not analyse the substance of the dispute: whether or not a one-year period in which an employee has no protection from unfair dismissal would have been permissible under the Charter. Indeed, the broader question of the content of the Art 30 right is left hanging in the air.

Article 30 may yet prove to be a valuable tool for future claimants. The Advocate-General’s opinion and the court’s judgment in the earlier case of AMS v Union Locale des Syndicats CGT C-176/12, concerning Art 27 (workers’ rights to information), illustrates how Art 30 could potentially be successfully deployed by a claimant in order to mitigate the strictures of the unfair dismissal provisions of UK law.

For UK lawyers of a creative inclination seeking to push the boundaries of unfair dismissal protection, in any given case it is worth checking whether the appropriate EU law “hook” exists, such that the claimant’s legal situation falls within the scope of EU law. It should be borne in mind that the CJEU analysis regarding the Spanish reform was not as restrictive as it could have been in determining what might constitute a relevant exercise of competence. Beyond analysing “hard law”, the court considered whether particular guidelines or recommendations had been adopted and, further, did not close the door on the relevance of other forms of EU action (such as whether the EU had provided funding for projects in a particular policy area).
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