The recent law on labor relations (: Law 4808/2021) dedicates an extensive section to employees’ leave. We already analyzed the leave aimed at balancing work and personal life for parents and caregivers. We also analyzed the leave aimed at protecting the institution of family. But it is well known to the “inhabitants of Jerusalem” that employees often do not dare, for obvious reasons, to claim all the leave they are entitled to. This was precisely the reason, obviously, that compelled the legislator to provide independent and specific, relevant, protection. In this context, we will deal with the provisions aimed at protecting those employees who exercise their rights to obtain leave or any flexible regulation of their working hours.
Non-discrimination (Article 47)
The prohibition of discrimination pervades all labor law. This provision is moving in that exact direction. In this context, a ban on unfavorable (or less favorable) treatment for employees who either (a) exercise rights to obtain leave or to obtain a flexible regulation of their work; or (b) file a complaint within the company or initiate legal proceedings for relevant compliance of the business.
Protection against dismissal and burden of proof (Article 48)
This regulation concerns the protection of employees from dismissal. In particular, the dismissal of an employee is prohibited because he / she requested or received leave or flexible regulation and / or exercised relevant rights.
However, if, despite the prohibition, an employee is fired for such a reason or after such an event, the employer is obliged to notify, in writing, the reasons for the dismissal. In case, in fact, that the relevant obligation is not observed, a presumption (rebuttable) is created in favor of the violation of the prohibition of dismissal.
It should be noted, however, that this provision is, unfortunately, not well written. It does not specify as a condition, indicatively, that e.g. the leave should be requested within a specific period. In other words, can the employee raise a relevant ground of invalidity two years after making such a request? This would obviously be abusive, but unfortunately the wording of the provision does not rule it out.
In the context of the above protection of the employee, there is also a reversal of the burden of proof in favor of them (the employee). Specifically, in the event of such a dispute, the employee only needs to cite facts, which seem to support the belief that they were fired for one of the above, prohibited, reasons. In this case, the employer is the one who bears the burden of proving the effect of the dismissal for reasons other than the ones prohibited. However, this provision does not apply in criminal proceedings.
This provision also includes provisions for special protection against dismissals. Specifically, according to what was already in force, it is forbidden to dismiss a pregnant woman – and later a mother – for a period of 18 months from the birth (or even longer due to illness), unless there is a great reason. An innovation, however, is the similar ban, which is also introduced for the working father for six months after the birth, provided, here too, that there is a great reason. However, it is expressly provided that the reduction of performance due to the mother’s pregnancy or the family obligations of the working parent cannot be considered as a great reason.
Legal protection (Article 49)
This provision sets out the legal protection that employees are entitled to when they consider that they have been harmed by a breach of their leave-related rights. Every employee, therefore, has the right to seek protection, for this reason, before the competent courts. Also, to appeal to the competent administrative authorities (including the Labor Inspectorate and the Ombudsman).
At the same time, the (under certain conditions) possibility is provided for legal entities and associations of persons (including trade unions) to appeal in the name and on behalf of the affected employees.
Penalties (Article 50)
Violation of employers’ obligations on issues related to leave is not without sanctions and expenses. Specifically, the employer-offender is subject to administrative sanctions (: fine from € 300 to € 50,000). In case of recurrence, a temporary cessation of the operation of the business or its department / division is imposed (article 24 of law 3996/2011). Also, criminal sanctions are provided [: imprisonment of at least 6 months and / or a fine of 900 € (article 28 of law 3996/2011)].
At the same time, any violation of the principle of non-discrimination leads, inter alia, to a claim for full compensation of the victim (actual loss or loss of earnings and moral damages).
Some employers, as mentioned in the introduction, do not “honor” their obligations regarding the granting of due leave to their employees. The sword of Damocles sword is hanging “over their heads”, as a series of potential sanctions arise from the recent labor law. Civil, administrative and criminal sanctions: And none of them is “minor”.
And it is true that the threatened sanctions do not make a society fair or its citizens law-abiding.
It is certain, however, that these (completely dissuasive) regulations will inevitably make employers more cautious about the possibility of violating their employees’ rights.
Stavros Koumentakis
Managing Partner
P.S. A brief version of this article has been published in MAKEDONIA Newspaper (October 3rd, 2021).
Disclaimer: the information provided in this article is not (and is not intended to) constitute legal advice. Legal advice can only be offered by a competent attorney and after the latter takes into consideration all the relevant to your case data that you will provide them with. See here for more details.
