As you have probably already heard, that from 1st January 2023, certain provisions of the Labour Code have changed, within which substantive and procedural regulation modification, the one on the prohibition of abuse of rights is likely to have a particularly large practical impact on the operation of Employers. In this regard, the new regulations will be challenging for Employers primarly in the area of termination of employment, as the new regulations formulate more favourable prooving-related and claim enforcement provisions for the Employees.
Changes in legislation on the prohibition of abuse of rights and termination of employment relationship
In practice, the above shall mean for the Employers, they will need to be more careful than previous to the modifications and a more thorough preparation will be required, when it comes to terminating the employment of the Employees in case they want to reduce the risk of lost lawsuits and avoid the (significantly growing) costs generated by those.
In that respect, it will be vital for the Employers to be able to prove the reasons, grounds and circumstances behind each termination of employment relationship in a more prepared, accurate, undoubtable – and systematic – way, given the likelihood of a sharp increase in the number of lawsuits brought by Employees in this area.
In the future, in legal disputes based on unlawful termination caused by abuse of rights, the claimant (typically the Employee) will have to prove the facts, circumstances and disadvantages underlying the violation of the prohibition. On the other hand, the party exercising the right (typically the Employer) will have to prove that there is no causal link between the fact, circumstances and disadvantages proved by the other party.
The burden of proof becomes therefore shared, and in such a way, that the Employer shall be forced in many cases to prove, that a fact or circumstance does not exist, or, if it did exist, it had no effect on the decision to terminate the employment relationship. (We all know, proving of non-existance is something you can not do, just in case you prove, that there were other legally complying reasons behind a decision of that character.)
It is therefore clear that the Employers will be forced not only to present a possibility of patterns, how things went down, but also with a stronger obligation of prooving, in the cases related to the violation of the prohibition of abuse of rights.
A further change is that, in the future, in the event of a claim of an abuse of rights, the Employee will also be able to request the court to reinstate his/her employment relationship, which in practice means that the restrictions, according to which Employees can claim only up to 12 months’ absence pay from their employer as compensation for loss of earnings, will not apply to labour lawsuits relating to the abuse of rights, so Employers have to reckon with a greater legal and financial risk in terms of legal consequences, both reinstatement of the employment relation and the higher costs of a legal case like that.
What can an Employer do to prevent all that?
Employee claims based on the prohibition of abuse of rights and EES
It is important that Employers pay even greater attention than until now to preparation of written documentations of all facts and circumstances, that justify the termination of the employment relationship and can be used as evidence in a lawsuit. The implementation and appropiate revision of the Employee Evaluation System provides a great help in ensuring that Employers can do this not only on the level of individual cases, on a case-by-case basis – and typically afterwards. The continuous, objective, documented evaluation of the Employee‘s performance provides the Employer with the opportunity to place the termination of employment relationship on objective grounds, the Employer will have written documentation of the Employee’s work available at all times and thus, in the event of any labour lawsuit, they will be ready at any time to provide credible evidence of the circumstances and reasons for the termination, even going back a long time, to justify the impact of the Employee’s performance and conduct on the decision leading to the termination.
Taking the above into consideration, we have created at Bac an evaluation system which is fully automated, digitalized, complex system with specific tools to ensure objective evaluation and compliance with the labour law regulations. In case, you don’t have an implemented EES system, or you would like to revise or refresh that, do not worry, we can help! Feel free to visit the BACSystems EES page for more information about our systems and available packages!
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In the next post of our EES post-series we are going to explain one of the most important stages of any evaluation systems: how to make an objective evaluation?
In our most recent post of our EES post-series we are going to asnwer the question: how many evaluation systems are needed at one company.