Disapplying National Law: Case Summary – Unfair/ Wrongful Dismissal

When national legislation undermines the fundamental right to an
effective remedy prescribed by European Union standards, the
national court must disapply the relative legislation, in so far as
necessary. This is because any national court cannot interpret
national legislation which is inconsistent with EU law.

In the recent case C-715/20 (X (Absence de motifs de
résiliation)), decided on the 20^th of February
2024, the European Court of Justice (the “ECJ”) ruled
that any national legislation which allows for the reasons for
employment termination to be solely provided to permanent
employees, undermines the fundamental right to an effective remedy
for part-time employees. Therefore, a fixed-term, part-time
employee, who is in a comparable situation to another permanent,
whole-time employee,¹ must also always be informed of
the reasons for the termination of their employment contract.

Facts of the Case

K.L. and X sp. Z o.o., a limited liability company governed by
Polish law, entered into a fixed-term² part-time
employment contract from the 1^st of November, 2019 until
the 31^st of July, 2022. Yet, on the 15^th of
July, 2020, K.L. was notified of his termination of his employment
contract, by means of a statement and respected the one-month
notice period. Accordingly, that termination took effect on the
31^st of August 2020; however, K.L. was not informed of
the reasons for that termination.

Following his dismissal, K.L. brought an action before the
District Court for Kraków-Nowa Huta, seeking compensation
for unlawful dismissal. He submitted that the Polish Labour Code
did not require employers to state the reasons for termination of
fixed-term employment contracts. The absence to such information
infringed the principle of non-discrimination enshrined in EU law
and in Polish law, since this obligation existed for termination of
indefinite employment contracts. In this context, the Krakow
District Court referred its questions on the matter to the ECJ for
a preliminary ruling.

The Principle of Non-discrimination

The law aims to improve the quality of life of a fixed-term
employee, by ensuring the application of the principle of
non-discrimination. This is in accordance with clause 1(a) of the
Framework Agreement³ and is similarly included in the
third paragraph in the preamble to the agreement which reads that
this principle “illustrates the willingness of the Social
Partners to establish a general framework for ensuring equal
treatment for fixed-term workers by protecting them against
discrimination“. This is also stated in Recital 14 of
Directive 1999/70. In particular, the Framework Agreement aims to
apply the principle of non-discrimination to fixed-term employees,
to prevent an employer using such an employment relationship to
deny those employees rights which are instead recognised for
permanent employees. The prohibition of discrimination is directly
a specific expression of one of the fundamental principles of EU
law, namely the general principle of equality, and cannot be
ignored.

With the objective of eliminating discrimination between
fixed-term employees, part-time employees and permanent employees,
the law essentially prohibits fixed-term employees from being
treated less favourably than comparable permanent employees, simply
because they are employed for a fixed term, unless different
treatment is justified on ‘objective grounds’.

i. Fixed-term employees and comparable whole-time
employees

Firstly, to assess and examine whether the fixed-term employees
and permanent employees concerned were engaged in the same or
similar work for the purposes of the Framework
Agreement, the ECJ had to determine, whether those persons
could be regarded as being in a comparable
situation. This determination considers a number of
factors, such as the nature of the work, training requirements and
working conditions of the employees. From the facts of the case, it
emerged that the Polish Labour legislation did indeed apply to
employees employed under a fixed-term contract, who could be
compared to employees employed under a contract of an indefinite
duration.

ii. Justified on ‘Objective
Grounds’

The second factor considered by the ECJ was whether such a
difference in treatment could be justified on
‘objective grounds’.

According to case-law on the matter, the concept of
‘objective grounds’ and the difference in treatment is
normally justified:

1. by the presence of precise and specific factors;




2. which characterise the employment condition to which they
   relate;




3. in the specific context in which it occurs; and




4. based on objective and transparent criteria.

This list aids any Court to ascertain that that difference in
treatment is based on a genuine need, is appropriate for achieving
the objective pursued and is necessary.

After thorough analysis of the facts, the ECJ noted a difference
in treatment which emerged between the two categories of employees.
Under local Polish Labour law, during the termination of a
fixed-term employment contract with a notice period, the employer
was not required to inform the employee in writing at the outset of
the reason/s justifying that termination. However, that same
employer was required to inform the employee in the event of
termination of an employment contract of indefinite duration with a
notice period. This led to a clear breach of fairness since:

1. on the one hand; a fixed-term employee whose employment
   contract was terminated with a notice period, need not be informed
   of the reasons for why they were terminated;




2. on the other hand; a permanent employee whose employment
   contract was terminated, would unfairly receive the reason/s for
   their dismissal.

The ECJ confirmed that the Polish Labour law portrayed a clear
deprivation of equality since important information which was being
provided to a permanent employee, was for the same reason, not
being provided to the fixed-term employee. This restriction
prohibited fixed-term employees from assessing whether their
dismissal was in fact justified or otherwise. Such a situation
would in turn give rise to unfavourable consequences for a
fixed-term employee since that employee was not provided,
beforehand, with information which may have been decisive for them
to know whether or not to bring legal proceedings against their
employer for the termination of their employment contract.

Hence, if the employee concerned had doubts regarding the
validity of the reason for their dismissal, they would be left with
no choice other than to bring an action seeking to challenge that
dismissal before the competent labour Court. It would only be
through that action that the employee may possibly obtain that
requested information from their employer, of the reason/s for
dismissal, through a court order.

The Preliminary ruling: Apply EU law

The ECJ emphasised that where it is apparent that the national
legislation concerned is contrary to EU law, it is the
responsibility of the national courts to provide the legal
protection which individuals derive from the rules of EU law and to
ensure that those rules are fully effective. Essentially, where it
is not possible for a provision of national law to be interpreted
in a consistent way with the requirements of EU law, the principle
of primacy of EU law requires a national Court to apply provisions
of EU law, and to disapply any provision of national law which is
contrary to provisions of EU law.

Consequently, the ECJ ruled that to guarantee the full
effectiveness of Article 47 of the Charter of Fundamental Human
Rights, Article 30(4) of the Polish Labour Code had to be
disapplied.

Footnotes

1. In this context, a “comparable permanent
employee” means a employee with an employment contract or
relationship of indefinite duration, in the same establishment,
engaged in the same or similar work/occupation, due regard being
given to qualifications/skills;

2. Note that “fixed-term employee” means a
person having an employment contract or relationship entered into
directly between an employer and a employee where the end of the
employment contract or relationship is determined by objective
conditions such as reaching a specific date, completing a specific
task, or the occurrence of a specific event;

3. Council Directive 1999/70/EC of 28 June 1999
concerning the framework agreement on fixed-term work concluded by
ETUC, UNICE and CEEP.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.