Today’s authors are summer college interns from DLA’s Chicago office.
Two Days, One Night is an award winning film set in Belgium that revolves around an employment dilemma. Here’s the premise:
Sandra is scheduled to return from sick leave on Monday but discovers on the preceding Friday that she is being terminated from her position with a solar panel manufacturer in Belgium. The reason? The boss decided that 16 workers could do the work of 17 so he gave the rest of the employees the option of either taking 1,000 Euro bonuses, or keeping Sandra on the payroll.
With the aid of her friend who chairs the works council at this company, the boss agrees to rerun the vote on Monday. Sandra has only the weekend – 60 hours = two days and one night — to track down her 16 coworkers and persuade them to forfeit a bonus so she can keep her position: a job that Sandra needs not only for the family economy but also for personal stability.
Can employers actually do such a thing?
We interviewed DLA employment attorneys around the world to find out.
Johnathan Exten-Wright, who practices in the United Kingdom, believes legality here depends on the answer to the following question: “is the job redundant or is Sandra targeted for ill health?” If Sandra’s position is redundant, the employer may prove how and why she should be terminated. If Sandra is targeted for her mental health, however, she will likely prevail in a discrimination suit.
Repeatedly, attorneys cautioned that redundancy statutes in their countries place the burden on employers to show that the termination is the best economic option. For example, Hélène Bogaard, who practices in the Netherlands, noted that her country has stringent redundancy statutes in place to protect the employees, like Sandra.
When approaching termination, redundancy laws from Germany to Hong Kong require that the decision meet a standard of “reasonableness.” According to Julia Gorham of DLA’s Hong Kong office, leaving a redundancy decision to a vote, as Sandra’s employer does, would foreclose meeting the standard of reasonableness and render the termination illegal.
While most countries use redundancy statutes to ensure fair treatment of employees, Japan believes that redundancy statutes are… well… redundant. Lawrence Carter, who practices there, referred to Japan as an “employee’s paradise”; Sandra would have been 100% safe in keeping her job if only her film was set in Japan.
Countries without redundancy laws evaluate motives. Washington, D.C. attorney Joseph Turzi noted that there is nothing unlawful in the U.S. about 16 employees deciding whom to fire but that this delegation makes it difficult to prove that the motive wasn’t to punish Sandra for taking leave (which would violate the Family Medical Leave Act). “Without a rational explanation,” Turzi cautioned, “a jury will find an illegal one.”
In the United Kingdom, employers are better safe than sorry. According to Kate Hodgkiss in Edinburgh, “the safest way here is procedural.” A fair process involves either eliminating a unique job position or using objective criteria (i.e., documented performance). Kate adds that often employers there utilize settlement payments to sidestep that process — a common practice in the U.S. as well.
Although Two Days, One Night’s employment problem faced legal setbacks elsewhere around the world, what about in Belgium, since the film takes place there? Even there, it is compelling drama but totally unreal. Soetkin Lateur, counsel with DLA Piper’s Brussels Office, presented no fewer than three different ways in which the film’s scenario was contrary to Belgian law:
- firing someone straight off of sick leave suggests illegal discrimination;
- incentivizing her co-workers to dump Sandra could constitute an abuse of employer’s prerogatives; and
- failing to give Sandra twelve weeks of notice before termination is a separate problem.
Sandra’s employer should have called Soetkin. Two Days, One Night’s producers should have too but that would have killed the drama in their project. There is little drama in watching veteran lawyers guide their clients around complicated employment laws. Yet, for employers with businesses that span the globe who want to run those businesses smoothly – without drama – the stars each should cast is clear:
Soetkin Lateur in Brussels
Kate Hodgkiss in Edinburgh
Joe Turzi in D.C.
Julia Gorham in Hong Kong
Lawrence Carter in Tokyo
Hélène Bogaard in Amsterdam
Jonathan Exten-Wright in London