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