Multinational companies and their general counsel often face a plethora of differing labor and employment laws in the European Union, making it difficult to stay within the lines during hiring and firing.
So on Tuesday attorneys from Morrison & Foerster and two other law firms presented a webinar pointing out the key similarities and differences in hiring and firing practices in the United Kingdom, France, Germany and Italy.
Much of the discussion centered on background checks and other processes during hiring, partly because of heightened privacy laws in those countries. Caroline Stakim, an associate in MoFo’s London office, said a company in the U.K. must balance its business needs against the applicant’s privacy rights.
While a drug test may be appropriate for someone applying to be a driver, for example, it might not be acceptable for other positions. “And the company must allow an applicant to [respond] to information that will affect the hiring decision,” Stakim added.
Patrick Thiébart, a partner in the Paris office of Jeantet.fr, said an employer in France should ask: “Do I really need to collect this particular information—is it directly job-related? And is there a less intrusive way of collecting relevant information?”
Thiébart also said under French case law companies can research their applicants on professional social media sites, such as LinkedIn, but not on more private sites like Facebook.
And Germany is on its way to passing a similar law, according to Hanno Timner, a partner in MoFo’s Berlin office. The new German government, in place since last fall, has “implied that they will implement more specific employee-data legislation as soon as possible and that it will provide for differentiation” between checking professional and private social media sites, Timner added.
Marco Dalla Vedova, a partner in Dalla Vedova Studio Legale in Rome, said Italian law looks at the proportionality of how useful the information is to determining if the applicant can do the job, as well as whether website information has been intentionally made available for professional purposes, such as on LinkedIn.
The panel expressed concern about using a search engine like Google because it could reveal a candidate has a legally “protected characteristic”—such as a religious preference. If that applicant is then not hired, the company could be put on the legal hot seat to prove why not.
The panel also discussed issues of employment documentation in the EU, with all the lawyers agreeing that basic terms of employment need to be in writing, with the common practice being to use a written contract signed by both sides.
On the issue of firing, European countries clearly have stricter laws protecting employees than does the U.S. For example, there is no “at will” employment in those countries—companies wishing to terminate an employee often must negotiate or at least consult with unions or work councils, unless there is clear employee misconduct or other good reason. Most also require a period of notice and some form of severance, absent gross misconduct.
In the U.K., Stakim said an employer can dismiss an employee without fair cause if the parties have reached a “termination agreement,” usually involving payment to the employee, before any formal dismissal procedure occurs.
Under the law, she added, “The employee must [receive] independent legal advice, and it’s customary for the employer to contribute toward that.”
Moderator Ann Bevitt, also of MoFo’s London office, summed up that there are definite similarities across the EU countries, especially “an overriding directive” on data protection and a job applicant’s right to privacy. “The differences are in the details,” she added. “It’s not a one-size-fits-all, and you have to look at restrictions in each jurisdiction.”