27 October 2022
Authors: Štěpán Štarha, Milan Černaj, Khrystyna Koleshchuk
From 1 November 2022, an amendment to the Labour Code is to come into force, which may provide a greater degree of flexibility to entrepreneurs and employers in determining and changing the working conditions of employees. As the amendment transposes as many as 2 Directives of the European Parliament and of the Council, its practical impact and importance for employers is slightly overshadowed by the most widely communicated changes to paternity leave. Therefore, we bring you a brief overview of the most important changes from the perspective of practice and employers’ needs.
Under the existing regulation, the employment contract had to contain, in principle, the following elements:
(a) the type of work of the employee and its brief characteristics; (b) the place of performance of work, (c) the date of commencement of work; (d) the wage conditions, if not agreed in the collective agreement (amount of wage, details of other benefits for work such as bonuses, remuneration, etc.).
The contract had to also explicitly provide for (i) pay dates, (ii) working time, (iii) the scope of paid vacation, and (iv) the length of the notice period.
However, the amendment reduces the scope of the essential elements for employment contracts from 1 November 2022 to only the essential elements under (a) to (d). Pay dates, working time, the scope of paid vacation, and the length of the notice period no longer have to be specified directly in the employment contract.
However, the employer must notify the employee of them separately, in the form of written information, within the statutory time limits after commencement of the employment. This will be a specific document from the employer informing the employee of the individual working conditions and the terms of employment, for example
How will this make a difference in practice?
The amendment allows that the conditions specified in the written information may be changed unilaterally by the employer, but the scope of these conditions is limited. However, changes will need to be communicated to the employee no later than the effective date of the change.
A change for example, of the pay date or of the number of working days should not thus require the employee’s consent or an amendment to the employment contract. On the other hand, the amount of wage or type of work must still be specified directly in the employment contract. Their change will therefore depend on an agreement with the employee in the form of an amendment to the contract.
Of course, the employer may continue to specify the working conditions under (i) to (iv) to any extent in the employment contract. However, this will restrict it from changing them at a later date, as an amendment to the employment contract will be required.
Although the amendment to the Labour Code formally contains the prerequisites for the introduction of the long-awaited flexibility, their actual use will probably be proven only in the practice of labour inspectorates. The explanatory memorandum is typically laconic in this respect.
No, the legislator has missed an opportunity to modernize communication in employment law, even though the need for change has increased manifold in recent pandemic years.
The amendment only formally introduces the possibility of digital communication between the employer and the employee. However, this is limited to the provision of written information by the employer, not to the conclusion of employment contracts or amendments to them. The above-mentioned information on the change in working conditions may thus be made electronically.
However, this does not apply absolutely, the employer may only communicate with the employee electronically if the employee has access to the electronic form of the information, can save and print it. It is not yet clear how strictly compliance with and verification of these requirements by the employer will be assessed.
The most communicated part of the amendment to the Labour Code is paternity leave. This is not the introduction of an entirely new institute, but rather the renaming of the existing parental leave of father under Section 166(1) of the Labour Code and the change of related rules in accordance with the requirements of the Directive of the European Parliament and of the Council on the work-life balance of parents and carers. In general, it is still the case that during paternity leave, the employee is not entitled to wages and wage compensation. This will continue to be, in principle, unpaid time off from work, which, if the statutory conditions are met, will entitle the father to 2 weeks’ maternity allowance as a benefit from the Social Insurance Agency.
The employer will also be obliged to grant paternity leave to an employee who is expecting the birth of a child if the employee requests it at least one month in advance of the expected due date of birth, as determined by a doctor. The establishment of a minimum 10-day period for the deposit of a consignment sent by the employer to the employee at the post office will certainly also be reflected in practice.It will no longer be possible to serve notice in writing on the employee within a shortened period of time, e.g., 3 days or more.
The new limit on the length of probationary period in fixed-term employment is also a restriction for the employer, but also a protection for the employee. The probationary period of a fixed-term employee may not be longer than half of the total term of the employment. Due to many partial changes introduced by the amendment to the Labour Code, it is not the purpose to include them in this document.
However, the HAVEL & PARTNERS employment law team will be happy to guide you through the amendment to the Labour Code and provide you with legal advice.
