“If the view were taken that a worker’s refusal to accept a 25% reduction of his salary does not fall within the definition of redundancy, the directive would be deprived of its full effect and the protection of workers undetermined.”
According to the Press Release, for the purpose of determining whether there is a collective redundancy, the EU Directive No. 98/59/EC establishes that, when calculating the number of redundancies, terminations of an employment contract which occur on the employer’s initiative for one or more reasons not related to the individual workers concerned are to be equated to redundancies, provided that there are at least five redundancies.
By its ruling, the Court found that “workers employed under a contract concluded for a fix term or a specific task must be regarded as forming part of workers normally employed, within the meaning of the directive, at the establishment concerned.” If it were otherwise, all the workers employed by that establishment might be deprived of the rights conferred on them by the directive, which would undetermined the effectiveness of the directive. The Court none the less points out that workers whose contracts are determined on the lawful ground that they are temporary, are not to be taken into account in determining whether there is a collective redundancy under the Directive.
The Court adds that, in order to establish whether there is a collective redundancy within the meaning of the directive, the condition that there be at least five redundancies relates not to termination of employments contracts that may be assimilated to redundancies but only the redundancies in the strict sense of the term. That is absolutely clear from the wording of the directive would deprive the condition in question, namely that there be at least five redundancies, of any effectiveness.
Lastly, the Court also finds that the fact that an employer – unilaterally and to the detriment of the employee – makes significant changes to essential elements of his employment contract for reasons not related to the individual employee concerned falls within the definition of redundancy from the purpose of the directive”. The Court observes that redundancies are characterized by the lack of the worker’s consent. In the present case, the termination of the employment relationship of the worker who agreed to enter into a contract terminating that relationship arises from the change made unilaterally by her employer to an essential element of the employment contract for reasons not related to that individual worker. That termination therefore constitutes a redundancy. First, given that one of the objectives of the directive is to afford greater protection to workers in the event of collective redundancies, a narrow definition cannot be given to the concept of redundancy. Second, the aim of the harmonization of the rules applicable to collective redundancies is to ensure comparable protection for employees’ rights in different Member States and to harmonize the costs which such protective rules entail for EU undertakings. The concept of redundancy directly determines the scope of the protection and the rights conferred on workers under the directive. That concept therefore has an immediate bearing on the costs which the protection of workers entails. Accordingly, any national legislative provision or any interpretation of that concept to the effect that, in a situation such as that in the main proceedings, the termination of any employment contract is not a redundancy for the purpose of the directive would alter the scope of the directive and thus to deprive it of its full effect.