The new ‘Information Directive’

Far-reaching consequences for the daily practice of many employers

Alert

On 16 April 2019, the European Parliament adopted the text of the new EU Information Directive. This new Directive can have far-reaching consequences for the daily practice of many employers. It is now up to the national legislators to take measures prior to April 2022 to implement the obligations of the directive in their legislation, introducing new rights to all employees with an employment contract or employment relationship, including flex workers and platform workers.

 

Background of the revision

The ‘original’ Information Directive originates from 1991. Since then, the labour market has changed drastically, resulting in new, more flexible, forms of employment. These trends have had a positive impact on the economy, but also resulted in sometimes more instable and unpredictable working relationships. This new Directive is one of the key actions of the Commission following up on the European Pillar of Social Rights, aiming to promote more secure and predictable employment while ensuring labour market adaptability and improving living and working conditions.

 

Main changes to the information obligation

The obligation to provide workers with essential information about the employment relationship will be subject to the following main changes as a result of the new Directive:

  • Information obligation for all workers, including flex workers and platform workers

The personal scope of the Directive is clarified by defining a notion of “worker” based on established case-law of the Court of Justice of the European Union (CJEU) for determining worker status, and extended by reducing the possibilities for Member States to exclude workers in short or casual employment relationships.

  • Additional information for workers sent abroad

With regard to employees sent abroad for their work, the employer is obliged to provide additional information documents to the employee, at the latest on the day of departure. These documents must contain information on:

  1. the host country and duration of secondment;
  2. the currency of the host country;
  3. any benefits associated with the work assignment;
  4. information about whether and if yes, how, the return has been arranged.
  • Additional information requirements in relation to the Posting of Workers Directive

If the Posting of Workers Directive applies to the worker concerned, information must also be provided about:

    1. the wages to which the worker is entitled under the law of the host Member State;
    2. any allowances in connection with the posting and regulations regarding travel, accommodation and meal costs;
    3. a link to information on an official national website.
  • Burden of proof and sanctions

To make the information obligation more effective, a special burden of proof provision is included. The moment a worker makes it plausible that an employer has violated the obligations from the directive, the employer will have to prove the contrary. The Member States are obliged to ensure violations of the new obligations are effectively and proportionally sanctioned. The exact nature of the sanction will be up to the national legislators.

  • Changing terms of employment

Changing aspects of the employment relationship is also subject to the information. This does not apply if the change is the result of, for example, a change to an applicable collective labour agreement.

 

Additional material rights

In addition to the far-reaching information obligation, the revision text of the EU Information Directive introduces some minimum guarantees with regard to working conditions:

  • A limit on the maximum probationary period of 6 months
  • A ban on exclusivity clauses and restrictions on incompatibility clauses
  • A right for workers with variable working schedules to get a notification of their working hours in advance
  • A right to compensation when the employer cancels the work assignment after a specific deadline
  • A right to request a more stable form of employment for an employee with variable working schedule working for longer than 6 months
  • A right to mandatory training without cost

Especially the ban on exclusivity clauses is a striking and impactful change, as this is a very common clause in employment contracts. The national legislator can choose to include exceptions on a limitative number of grounds. Another important change is the limitation on including a study costs clause in employment contracts. If an employer is required by law or a collective labour agreement to provide training or education for the employee, this must be offered free of charge. A study cost clause with a repayment obligation in the event of early termination of employment means that the training is not actually free of charge, making it an prohibited clause under the new directive.

 

Conclusion

The revised Directive will target all forms of employment, and in that way have consequences for existing and future contractual forms. The additional material rights will make a revision of existing and standard employment contracts necessary.

Members States must be implemented in national legislation by April 2022.

"This new Directive can have far-reaching consequences for the daily practice of many employers."

Emilie Boot

emilie.boot@hvglaw.nl +31 88 407 02 12