What is a common form of the violation of the managerial prerogatives?
The most frequent violation of rights on the part of the employer is the termination of the employment contract in a manner that is formally legal, but for reasons that legal order deplores.
According to Greek employment law the termination of a dependent employment contract need not be justified, i.e. it is in principle lawful, if no specific cause for the termination is mentioned (which is why it is not required to state the grounds for termination in the termination notice, document), so if the written form is adhered to and the compensation provided-for under the Law is paid, it is up to the employee to dispute the termination, by claiming and proving that his dismissal was made in excess of the respective right, i.e. that under the conditions in which it was effected, it obviously exceeds the limits imposed by good faith or business ethics or the social or economic purpose of the right, as expressed in article 281 of the Greek Civil Code.
In theory and in case law, it is accepted that dismissal is the most extreme measure taken against an employee, meaning that it should be applied only in instances, where it is impossible to retain the employment contract even on terms that are more unfavourable for the worker, e.g. in the context of restructuring a company that is facing grave economic problems. If such new and unfavourable terms are not proposed to the employee, it is possible for the termination of the contract to be considered as abusive.
In conclusion, it can be said that abusive termination mainly applies when it is realised, not in order to meet the interests of the company, but due to reasons of personal nature relating to the employer. For instance, this would be the case where a conduct of an employee is lawful but not to the liking of the employer, e.g. due to union activity by the employee. Another case, would be where the termination is indeed business-driven, but fails to make proper selection of the individuals to be dismissed in accordance with commonly accepted socio-economic criteria, or when employment on more unfavourable terms has not been proposed to the candidates for dismissal, provided that this is feasible business wise.
Is the employer entitled to unilaterally amend the terms of employment?
The unilateral alteration, by the employer, of the terms of employment, rendering them more unfavourable for the employee, is another very frequent violation of employee rights.
This applies when the employer, despite provisions to the contrary in the employment contract and in the company’s work regulations, or contrary to the company’s long-standing practice, etc., demands that the employee accepts a change of the terms that is unfavourable to him/her. Such a demand on the part of the employer is in principle contrary to the contractual agreement and can be legally refuted by the employee.
An employer’s attempts to reduce the remuneration of personnel, to alter the remuneration system (e.g. by eliminating annual bonuses), to transfer the employee to another, potentially inferior, position or to another facility of the company that increases excessively the time required for journeying to and from work, to assign additional duties to the employee, etc. usually fall under this category.
Of course, if the employer has reserved the right to unilaterally amend the terms of employment, provided that such reservation, does not violate the statutory minimum limits of employee protection, such a unilateral alteration, will in principle be legitimate, but the change imposed by the employer by applying the relevant contractual provision could be considered as being potentially abusive.
In this context, special note must be made of the employer’s right to terminate voluntary benefits (i.e. those granted to his employees without being contractually or legally obligated to do so) without any fault on the part of the employer, when business conditions change. Such benefits are usually granted at times when the business is flourishing. If the voluntary benefits have been granted in a way that is regularised and such practice has persisted for a long period, then it is held that they are tacitly incorporated into the employer’s contractual obligations and can no longer be cancelled or reduced unilaterally. Of course, this is not the case if the employer had expressly reserved the right to revoke or reduce at will, any voluntary benefits. If, however, despite such reservation, the granting of the benefits continues uninterruptedly for a very long period without the employer activating such reservation, it is possible that such long-term failure to effect, even a small change in the granting of the benefit, will be considered as having impaired such right, so that it can no longer be exercised.
In the event of an unacceptable unilateral alteration of the terms of employment, an employee has three options:
- to oppose the change in employment terms, i.e. to insist on providing his work as before and to refuse to work under the new conditions, by demanding to continue receiving his pay, as if he was working;
- to acknowledge the unfavourable alteration as a termination of the employment contract by the employer and demand to be paid the compensation provided by law in full; or
- to accept the change, which entails the amendment of the employment contract, in relation to the term which was modified by the employer.
Violation of the employee’s personality rights
A particular form of abusive conduct on the part of the employer and unilateral detrimental alteration of the employment terms is the violation of the employee ‘s personality rights, which may take various forms. The main element of such as a violation, is the offence of the employee’s dignity, as for instance in unwarranted diminution of duties or of a demotion despite good performance, assignment of duties that are not commensurate with the employee’s skills, refusal on the part of the employer to actually engage the employee’sservices so that he can accumulate experience and skills, bypassing the employee when
promotions are made, sexual harassment, etc.
In most of the (indicatively) aforementioned cases of abusive exercise of managerial prerogatives and/or anti-contractual conduct by the employer, the latter will be held liable for tortious behaviour. Therefore, further to the options available to the employee as listed in the preceding section (a to c), the employee may also seek from the competent court compensation for moral damages.
How is failure to promote an employee treated?
Irrespective of the legal basis on which an employee’s demand for promotion rests (e.g. contract, Work Regulations with contractual force, Work Regulations by force of law) the main criterion for substantiating failure to promote is always the same. It is whether such failure to promote contravenes the principles of good faith, which translates into whether the credentials/qualifications of the employee who was been bypassed are superior to those of his colleagues who were promoted.
An employee who feels that he has been treated unfairly, may take his employer to court and demand that the promotion he was entitled to, be upheld and realised by virtue of a final court decision. The employee may further seek the payment of compensation, i.e. the difference in the remuneration during the period from the time he should have been promoted to the issuing of the final court decision. Concurrently, an employer’s failure to promote an employee may also be deemed to be tortious, whereupon the employee may demand the award of compensation for moral damages.
How is the discrimination between employees treated?
1. In accordance with constitutional requirements, and in application of article 288 of the Civil Code, it is prohibited to an employer, to treat differently employees that perform the same work, have the same qualifications and work under the same conditions.
The principle of equal treatment is applied both on the benefits that the employer provides voluntarily and on those that are provided due to contractual commitments, but not on the benefits that derive from the law and other regulatory provisions. The requirement of equal treatment is not limited only to the remuneration of employees but is extended to other benefits as well, such as promotion, participation in voluntary retirement schemes, etc., but also to the exercise of the employer’s managerial prerogatives, e.g. when allocating overtime work, participation in shifts/relays, night-time work and work on Sundays and holidays, participation in work teams, etc.
However, the principle of equal treatment does not impose an absolute equalisation of employees. “Unequal” treatment may be required due to objective reasons which render such treatment reasonable and fair, e.g. when the employees being compared have differentqualifications, responsibilities and performance.
If an employee considers that his unequal treatment is not justifiable, he has a direct claim against the employer and is entitled to seek the benefit that was not granted to him.
2. As of 2005, Greek Law has introduced a prohibition against any discrimination due to race, colour, ethnicity, gender, religion and other convictions, disability, illness, age, etc. in the workplace.
The most frequent violations of the respective law concern the exclusion from recruitment of women, in order for employers to avoid potential maternity protection at a later stage, and of young men who have not completed their military service, or the offering salaries to female employees that are lower to those of their male counterparts.
To prevent such discriminations from occurring, the respective legal framework encompasses not only the employment relationship but also the stage before employment begins (recruitment phase), e.g. upon inviting candidates for jobs and during preliminary negotiations.
In cases of discrimination in the workplace, the injured party may seek judicial redress, demanding that the violation be lifted. The Law lends particular attention to employee gender discrimination, threatening employers with administrative penalties (from € 500 to € 50,000) or even with suspension of the company’s operations for up to three days. The injured party can also seek compensation, including restoration of moral damages.
