TOP 5 employment law decisions in 2021

1. The Supreme Court of the Slovak Republic has ruled that overtime work performed without the express order of the employer may also be considered as overtime work

Even if the employer has not expressly ordered the employee to work overtime or agreed with the employee to work overtime, work performed outside of the employee's normal work schedule with the employer's knowledge and taking over and using the results of the employee's work may constitute overtime. Failure to meet the condition of transience and urgency of the increased need for the work does not mean that the work performed loses its nature as overtime work.

(Resolution of the Supreme Court of the Slovak Republic of 25 February 2021, Case no. 5Cdo/24/2019)

Section 97 of the Labour Code defines overtime work as work performed by an employee at the employer's order or with the employer's consent in excess of the specified weekly working hours resulting from a predetermined working time schedule and performed outside the scope of the schedule of shifts.

In its decision, the Supreme Court held that the Labour Code does not stipulate the form of the employer's order or consent for performance of overtime work. An order for overtime work may be deemed to be the imposition of such a volume of work at short notice that such work cannot be accomplished in regular working hours. Consent to overtime work may be given in writing, verbally or tacitly, for example, in situation where the employer knows that employees are working overtime even if he has not ordered them to do so and does not give them an order to stop the work. Consent is also presumed in a situation where the employer takes over and uses the results of the employee's work.

One of the features of overtime work is its transience and urgency. Even though overtime work is performed over a long period of time, when the characteristic of transitoriness and urgency is not fulfilled, it is still considered as an overtime work. Such a situation is rather considered to be a failure to organise the work process and an abuse of the law, where the employer overloads the employees contrary to their physiological capabilities and undermines the concept of labour law protection of the employee in the form of the right to fair and satisfactory working conditions that are not harmful to health.

3. Temporary assignment of workers by a temporary employment agency

A temporary employment agency is entitled to send employees abroad, including temporary assignment, provided that an employment relationship exists between the agency and the employee at the time of the temporary assignment.

(Resolution of the Supreme Court of the Slovak Republic of 25 February 2021, Case no. 5Cdo/10/2019)

The permit for the performance of the activities of the temporary employment agency is issued in accordance with Act no. 5/2004 Coll. on employment services, the permit includes the region or regions in which the temporary employment agency will carry out its activities. However, such definition of the place of activity implies the place of activity in relation to, for example, the headquarters, branch offices and the inhabitants of the territory, but does not affect the subject and content of the agency's activities. At the same time, the content and subject of the Agency's activity is set out in Act no. 5/2004 Coll. On employment services, the Act on employment services also defines the possibility of cross-border posting of employees, while it is clear that cross-border posting of employees may take place provided that there is an employment relationship. Temporary assignment is one of the forms of cross-border posting. This is also in line with free movement within the EU and in line with EU legislation.

5. Be careful when assessing working hours and rest periods, if the employer has multiple employment contracts with the employee

The employment contracts concluded between the employee and his employer must be examined jointly in order to establish that the period qualifying as daily rest corresponds to the definition of rest time set out in Article 2(2) of Directive 2003/88, i.e. that it is a time period which is not working time. In the context of this judgement, Article 50 of the Labour Code, which provides that the rights and obligations arising from several employment relationships between an employer and an employee are to be considered separately, is not in conformity with the Directive and the case-law of the ECJ.

(Judgment of the Court (Fifth Chamber) of 17 March 2021 in Case C 585/19)

Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time (the 'Directive') states an obligation to take the necessary measures to ensure that an employee is entitled to a minimum daily rest period of 11 consecutive hours within a 24-hour period. In its Judgment, the Court of Justice of the European Union considered the above entitlement in the context of a number of employment contracts concluded between an employee and an employer.

In this case, the Court considered that if rest periods were to be examined separately for each contract binding the employee to his employer, it would not be possible to satisfy the minimum rest requirement of the Directive, since rest periods under one contract could constitute working time under the other contract, while the same period could not qualify as both working time and rest periods. If rest periods were not examined separately for each contract, the protection of the employee would be weakened and the necessary minimum rest periods could not be ensured. The Court also expressed concern that if the Directive could be interpreted in the way that contracts could be examined separately, there would be a risk of employers pressuring employees to divide their working time between several contracts.