European Committee Finds Numerous Employment-Related Violations in 34 Countries
On January 25, the European Committee of Social Rights (ECSR) published its 2016 conclusions regarding 34 States’ implementation of the European Social Charter’s provisions related to employment, training, and equal opportunities. The Committee found 166 instances of States failing to adequately protect these rights and was unable to reach conclusions on an additional 85 cases due to a lack of information. [ECSR Press Release] In addition to reviewing the reports of 34 States, the Committee reexamined previous situations of non-conformity from its 2014 conclusions and reviewed five countries’ information on follow-up actions to prior merits decisions finding violations. See ECSR, European Social Charter Social Rights Monitoring 2016: Employment, Training and Equal Opportunities (2017). Two States failed to submit their State reports on time for review.
The Committee underscored the continuing problem of discrimination in the workplace. In particular, it found insufficient protection against employment discrimination on grounds of gender and sexual orientation, a lack of integration of persons with disabilities, insufficient assurances of equal compensation for men and women, and deficient measures to combat unemployment. See id. However, the Committee lauded the positive developments of some States, including the enactment of anti-discrimination legislation, progress in protecting the rights of persons with disabilities, and the establishment of vocational guidance and training systems. See id.
In 2016, the Committee analyzed States’ compliance with the European Social Charter by reviewing their reports concerning the period of 2011 to 2014 with regard to: the right to work (Article 1); the right to vocational guidance (Article 9); the right to vocational training (Article 10); the right of persons with disabilities to independence, social integration, and participation in the life of the community (Article 15); the right to engage in a gainful occupation in the territory of other parties (Article 18); the right to equal opportunities between women and men (Article 20); the right to protection in cases of termination of employment (Article 24); and the right of workers to the protection of their claims in the event of insolvency of their employer (Article 25). See id. The Committee adopted 513 conclusions regarding States’ implementation of the Charter, which included 166 findings of violations. See id. While the Committee found gaps in States’ implementation of a majority of those articles, it did not find major issues with implementation of Article 9 on providing students with vocational guidance as well as guidance to workers. See ECSR, Press Briefing Elements: Conclusions 2016 (2017), at 8.
Among the 513 “situations” analyzed, the Committee found violations of the Charter in 32 percent of them, conformity in 51 percent, and a lack of sufficient information to draw conclusions in 17 percent of them. See id. at 4. Albania and Luxembourg’s reports could not be reviewed because they were not timely submitted. See id. at 3.
The 34 States that submitted reports for review were Andorra, Armenia, Austria, Azerbaijan, Belgium, Bosnia-Herzegovina, Bulgaria, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Lithuania, Malta, Republic of Moldova, Montenegro, Poland, Portugal, Romania, Russian Federation, Serbia, Slovak Republic, Spain, Macedonia, Turkey, Ukraine, and the United Kingdom.
Seven States – Croatia, Cyprus, Czech Republic, the Netherlands, Norway, Slovenia, and Sweden – were exempt from the reporting procedure. The Committee examined reports on the follow-up actions on prior merits decisions for five of those States – all but Croatia and Cyprus. See id.
Article 1: The Right to Work
The Committee found States are not fulfilling Article 1 of the European Social Charter, which requires States to prohibit discrimination in employment, combat unemployment, assist the unemployed, and provide access to free employment services. The Committee found that 13 countries were doing too little to create jobs and provide training to the unemployed in light of the economic crisis. See id. at 6. The Committee also found 19 States to be in violation of the Charter’s terms prohibiting discrimination and forced labor. See id. For instance, some States lack a “clear and comprehensive definition” of discrimination, impose unwarranted restrictions on access to employment by foreign nationals, or “coerce” labor from workers in certain industries, in contravention of the Charter. See id. The Committee, though, found a “moderate level of compliance” with the requirement to provide effective employment services. See id. at 7.
Article 10: The Right to Vocational Training
The Committee found that States are largely in compliance with Article 10 with the exception of imposing residency requirements in certain cases. Under Article 10, States must ensure that vocational education requirements correspond with the skills needed in their respective job markets, regulate the quality of apprenticeships, ensure that workers’ skills remain current in order to avoid unemployment, and help fund vocational training. Most of the States examined, the Committee found, sufficiently bridge the gap between education and employment and offer efficient apprenticeships. See id. On the issue of preventing the deskilling of active workers, the Committee found nine States to be in conformity with the Charter, but had to defer its decisions on 12 States due to a lack of information. See id. Eight States impose a residence requirement on foreign nationals from other States parties to the Charter as a condition of applying for financial aid for vocational programs, which is prohibited. See id. at 9.
Article 15: The Right of Persons with Disabilities to Independence, Social Integration, and Participation in the Life of the Community
The Committee found 11 States’ practices deficient as to Article 15 requirements to promote the integration of persons with disabilities into multiple aspects of society, including education and employment. The deficiencies were primarily due to the lack of guaranteed integration in the realm of education. See id. With respect to integration in the labor market, 12 countries were found not to be in conformity with the Charter. See ECSR, Press Briefing Elements: Conclusions 2016, at 9. Non-conforming States were found to lack sufficient protection against discrimination for persons with disabilities as they enter, and within, the job market. See id. More than half of the States examined were found to lack effective remedies for persons with disabilities in social spheres, such as housing and transportation. See id.
Article 18: The Right to Engage in a Gainful Occupation in the Territory of Other Parties
Several States, the Committee found, are not in full compliance with Article 18, which requires that workers are free from excessive restrictions in securing or maintaining employment in another State – for instance, by encountering significantly higher fees or more stringent criteria to obtain or renew a work permit. See id. at 10. In 30 percent of the States reviewed, the Committee found that work permit requirements interfered with workers’ freedom of movement between countries. See id. In 37 percent of States reviewed, the Committee found “excessively restrictive requirements for permits.” See id.
Article 20: The Right to Equal Opportunities Between Women and Men
The Committee found a lack of compliance with Article 20, which calls for women and men to be treated equally in matters of employment, including access to employment, compensation, and promotions. The Committee found sex discrimination in the labor markets of 12 of the 30 countries reviewed, primarily due to their limitations on the employment of women in certain jobs, such as underground or night work. See id. at 10. The Committee also uncovered instances of wage discrimination, both in law and in practice. See id. Some States fail to guarantee equal pay for the same work, while others simply sustain a large pay gap between women and men. See id. at 10–11.
Article 24: The Right to Protection in Cases of Termination of Employment
Eight of the 21 States reviewed, the Committee found, are not in compliance with Article 24, which requires States to regulate an employer’s termination of an employee when that employee is under contract. Grounds for termination are considered valid when they relate to the ability of an employee to perform, an employee’s conduct, or the economic considerations of a business. See id. at 11. Notably, a number of countries allow for the termination of an employee who has reached the “normal pensionable age,” which is prohibited. See id.
Article 25: The Right of Workers to the Protection of Their Claims in the Event of the Insolvency of Their Employer
While the majority of States offer adequate protection of workers’ claims in the event that an employer becomes insolvent, in Belgium and Portugal the time it takes to process such claims is too long, and in Turkey such claims are not sufficiently remedial. See id. at 12.
The Committee receives three types of reports: ordinary reports on a thematic group of Charter provisions, reports on conclusions of non-conformity that were reached due to a lack of information the preceding year, and simplified reports every two years on follow-up actions taken by States in response to violations found during the collective complaints procedure. See id. at 3. The 2016 conclusions took into consideration 34 ordinary reports covering the period of 2011 to 2014 as well as submissions from civil society. See ECSR, European Social Charter Social Rights Monitoring 2016: Employment, Training and Equal Opportunities.
Based on the Committee’s annual conclusions, the Council of Europe’s Committee of Ministers issues recommendations to States that will help bring them into conformity with the Charter. See Council of Europe, European Committee of Social Rights (ECSR).
The Committee’s 2016 Merits Reports
In 2016, the Committee issued five decisions on the merits. Two of those decisions relate to the right to protection in cases of termination of employment (Article 24). The remaining three decisions address provisions of the Charter not examined in the Committee’s 2016 conclusions.
In the first case, the Finnish Society of Social Rights claimed that Finland was not in conformity with Article 24 of the Charter for two reasons, and the Committee agreed, finding Finland violated Article 24. See ECSR, Finnish Society of Social Rights v. Finland, Complaint No. 106/2014, Merits, 8 September 2016, paras. 33, 54, 58. First, the Finnish Society of Social Rights claimed, the national Employment Contracts Act offers no avenue of reinstatement for workers who are unlawfully dismissed. See id. Second, they further alleged that the Act limits the amount of compensation that an unlawfully dismissed worker can receive. See id. The Committee found that the State did not provide for reinstatement as a possible remedy because the legislative obligation to re-employ redundant employees in the nine months after termination was too narrow and did not provide for those unlawfully dismissed. Further, the Committee found that the ceiling on remuneration for an unlawful dismissal in this case – 24 months of compensation – could be insufficient to “make good the loss and damage suffered” in some instances. See id. at paras. 49, 55–57.
The second case also involved Finland and Article 24, but the Committee concluded that the State was, in that instance, in compliance with the article. The complainant alleged an Article 24 violation on the ground that Finland allows the dismissal of employees for economic or production reasons that are tied to reasons other than economic hardship on the agency, the only reason allowed under Article 24. See ECSR, Finnish Society of Social Rights v. Finland, Complaint No. 107/2014, Merits, 6 September 2016, at 40. Because Finland’s legislation only allows for dismissal on economic and production grounds where there is a “proper and weighty reason” related to “decline in demand, obsolete products, increased competition or restructuring of the business,” the Committee found Finland in compliance with Article 24. See id. at paras. 50, 52.
Background on the European Committee of Social Rights
The European Committee of Social Rights, which has its seat in Strasbourg, France, is the regional body tasked with monitoring the implementation of the 1961 European Social Charter, its 1988 Additional Protocol, and the 1996 Revised European Social Charter. See IJRC, European Committee of Social Rights. These instruments address topics that can largely be characterized as labor rights, such as the rights to safe working conditions, collective bargaining, and fair pay. See id.
The Committee, which consists of 15 independent experts, fulfills its mandate by managing a State reporting system and an innovative collective complaints procedure. See id. States are afforded a certain level of flexibility in deciding which Charter provisions to accept and whether or not to participate in the collective complaints procedure. See id.