What will be the result of the planned changes to the Labour Code?

Although the amendments to the Labour Code are still in the early stages of the legislative process at the time of writing, their entry into force is already set for 1 August 2022. By this date, the Slovak Republic must adopt the measures, which are necessary to comply with the EU directives. It is therefore certain that the amendments to the Labour Code will be implemented. This article aims to inform you about the changes employers will probably need to make now in order to put them in place in good time. This is because many employers will need to change their current processes and model employment law documentation.

The draft amendment to the Labour Code aims to transpose into Slovak law the Directive on transparent and predictable working conditions in the European Union and the Directive on work-life balance for parents and persons with caring responsibilities. Although these directives were already issued in 2019, by transposing them the Slovakian government also reflects the current changes in society accelerated by the pandemic.

The basic principle of the Labour Code—namely, that working conditions should be fair and satisfactory—will be supplemented by a new requirement. Working conditions will have to be not only fair and satisfactory, but also transparent (so that the employee knows under what conditions he or she will perform the work) and predictable (so that the employee knows when and to what extent he or she will perform the work). These new requirements will be reflected in most of the proposed changes, such as:

1. changing the provisions relating to the content of the employment agreement,
2. specification of the scope of the information the employer provides the employee (prior to beginning the employment relationship, prior to the performance of work abroad),
3. the form in which information on working conditions is provided (e.g., can also be available in electronic form),
4. the employee's right to request flexible forms of work and to transfer to another form of employment,
5. minimum predictability of work in agreements on work performed outside the employment relationship.

Changes to the content of the employment agreement and information obligations

Particulars of an employment agreement

According to the previous wording of Section 43 of the Labour Code, it was possible to divide the terms and conditions negotiated in the employment agreement into three categories:

1. the “mandatory prerequisites”,
2. other terms and conditions of employment that were a regular feature of the employment agreement, such as provisions on working hours, pay periods, etc.
3. the “incidental elements”, such as the material benefits provided.

A new distinction will be made between the mandatory prerequisites of the employment agreement and the “other conditions”.

Mandatory prerequisites of an employment agreement

The mandatory prerequisites will be the mandatory clauses of the employment agreement (i.e. without which the employment agreement would be void). In principle, they will be the same as those before 1.8.2022, i.e. type of work, starting date, place of work and pay conditions. The obligation to indicate the identification data of the contracting parties (which is, however, commonly stated in practice) will be added. If there will be more than one places of work, they must be listed or a rule must be established that the place of work is determined by the employee.

Other conditions

Other terms and conditions of employment must be agreed by the employer directly in the employment agreement or details of them must be provided to the employee in the form of written information (which may also be in the form of an electronic document). The employer will communicate the terms and conditions of employment through the written information. It is likely that the employer will have several versions of the written information, depending on the number of different job roles. This means that it is permissible for the same employer to produce, for example, separate written information for administrative employees and production employees.

The employee's consent will not be required to change the terms and conditions of their employment set out in the written information. However, if the employer states these terms and conditions directly in the employment agreement, an amendment will be necessary to amend the employment agreement, which already requires the employee's consent. The employer can decide whether it prefers to include all the details directly in the employment agreement or whether it chooses written information.

The proposed amendment specifies the minimum content of the written information, the time and manner of its delivery to the employee. The proposed provisions also specify the scope of the information that must be provided to workers posted to another Member State as well as a number of exceptions.

Probationary period

The amendment introduces a new rule for determining the length of the probationary period in the case of fixed-term employment agreements. The probationary period must be proportionate to the duration of the employment relationship. In the case of an employee with a fixed-term employment relationship, the probationary period may not be longer than half of the agreed duration of the employment relationship. The possibilities for terminating the employment relationship during the probationary period with a man on paternity leave are limited.

Switching to another form of employment

The Labour Code will allow employees in atypical forms of employment to apply for a transfer to forms of employment with more predictable and secure working conditions. According to the proposed wording, an employee whose employment relationship lasts for more than 6 months (and is no longer in a probationary period) may submit a request to the employer to switch from a fixed-term employment relationship to an indefinite employment relationship or to switch from a part-time employment relationship to a fixed weekly working time. The employer must reply to the employee in writing, but does not have to grant the request. However, the employer must give adequate reasons for its reply within one month of the request. The Labour Code limits the number of requests that may be made by the same employee and lays down special conditions for employers with fewer than 50 employees and employers who are natural persons.

Changes relevant to termination of employment

Employer's burden of proof

Under the planned amendment, if an employee in an employment dispute with an employer notifies the court that his or her employment has been terminated because the employee has previously asserted his rights and legally protected interests under his employment relationship against the employer, the employer's obligation will be to prove the truth. The employee must state his alleged reasons for his dismissal (e.g. his frequent complaints) in his submission to the court. The employer will then be required to prove that the termination was for other reasons (e.g. for breach of work discipline).

Collection period for mail of at least ten days

The service of documents in person remains a priority. Delivery by postal service is generally only permissible under the Labour Code if the employer is unable to reach the employee at the workplace or elsewhere. This is the case, for example, where the employee deliberately avoids receiving the termination notice in order to extend time limits.

The current Labour Code does not regulate the length of time that a mail must be kept at the post office if the employee does not accept delivery. The storage period and the possibility to shorten it are based on the postal conditions. According to the explanatory memorandum to the amendment, the courts are not uniform on the question of the possibility of shortening it. In view of the problematic practice, the draft amendment proposes setting the minimum length a postal service must retain documents at 10 days. This offers legal certainty to both employers and employees.

Time limit for bringing an unfair dismissal claim in court

In general, the invalidity of the termination of the employment relationship can be brought before a court no later than two months after the date on which the employment relationship should have been terminated. In practice, ambiguities arise as to the start of this period in cases where the employment relationship has been “extended” due to the expiry of a protection period (i.e. in cases where the employee was served notice so that the notice period was due to expire during the protection period and the employment relationship was therefore only terminated on the expiry of the last day of the protection period). A rule has thus been proposed that, as a general rule, the running of the protection period will not be taken into account when determining the running of the abovementioned 2-month period. The only exception to this rule will be the situation in which the employee is temporarily incapable of work.

Form of provision of information

In principle, if the employer has an obligation to provide the employee with information or an answer in writing, it must provide it in paper form. However, following the amendment, the employer may provide this written information in electronic form in certain circumstances. The condition is that the employee will have access to the electronic form of the information, can save and print it, and the employer will keep proof of sending or receiving it.

Predictability of work in agreements for work performed outside the employment relationship

The right to predictable working conditions applies not only to employees in an employment relationship, but also to employees who perform work under agreements for work performed outside the employment relationship. Therefore, new provisions are proposed to ensure minimum predictability of work also for these employees, such as:

1. the employer must give the employee advance notice of the days and times when the employee can expect to work and when he or she can be called to work (the period must not be less than 24 hours),
2. the employee does not have to perform work outside the notified time frames,
3. if the work assignment is terminated after a certain period, the employee is entitled to compensation (at least 30% of the remuneration).

Exceptions to this are employees having agreements for work performed outside the employment relationship,

1. who organise their own working time, or
2. whose average weekly working time does not exceed three hours over a period of four consecutive weeks; or
3. for whom working time is scheduled by the employer one week in advance, valid for at least one week.

Conclusion

The planned amendment to the Labour Code reflects the increased attention paid to the topic of employee mental health and the need for "life-balance". A welcome change in the proposed amendment is the legislation to allow electronic delivery of information to employees.

The most administratively demanding for employers will be the new information obligations. However, employers will not be obliged to inform all their employees individually. They will have to comply with these obligations for employees whose employment relationship starts from 1 August 2022 and for employees whose employment relationship started before 1 August 2022 and who have explicitly requested the employer to provide the information. It is important to update employment law document templates and internal directives, and pay attention to setting-up the necessary processes.