Controversial amendment to civil procedure

It is now three weeks since the amendment to the Civil Procedure Code, which strengthens the protection of dismissed employees, came into force and discussions about it are still ongoing. The legislator’s original intention of strengthening the protection of members of employee representatives has grown to extend rights to all particularly protected employees and, in some cases, even to 'ordinary’ employees.

From 22 September 2023, a dismissed employee who considers that his or her employment contract has been unjustifiably terminated and takes his or her case to court demanding that the termination be declared ineffective or that he or she be reinstated will be able to request that the court oblige the employer to continue employing him or her until the proceedings have become final. Until now, this depended on the decision of the court, which had this power but not the obligation. According to the new wording of the provision, if the employee makes the appropriate request, the court will have no choice.

At the same time, in order to complete the protection at the pre-judgment stage, the legislator added a provision to the Code of Civil Procedure that allows an employee to apply at any stage of the court proceedings for security by ordering the employer to continue employing him or her until the proceedings have become final. However, not every employee has been granted this right. It only applies to employees who are subject to special protection against dismissal with or without notice. This is, however, a broad catalogue, which includes, inter alia: persons of pre-retirement age, pregnant women or during maternity or parental leave, members of the managing board of a company trade union organisation, social labour inspectors, employee representatives specified in the agreement who are entitled to obtain information from and consult with the employer.

The basis for granting security is only the probability of the existence of a claim, and the court may refuse to grant security only if the claim is obviously groundless. While it is true that an order granting security is appealable, this will be problematic in practice.

The amendment introduces only one situation giving the right to revoke a final order granting security. Namely, the occurrence of premises after the provision of security entitling the employer to the so-called disciplinary action, i.e. termination of the employment contract without notice through the fault of the employee. The introduction of such a standard has led to justifiable doubts as to whether, in such a case, the introduced provision entitling to apply for security is applicable to any procedure of termination of the employment contract or only to dismissals with notice. This issue remains unresolved for the time being, and we will have to wait for decisions in this regard until the case law on the basis of the new provision is shaped, although limiting the application of this provision to termination with notice does not seem justified by either the wording or the purpose of the amendment.

Unfortunately, the legislator did not regulate the consequences of declaring the termination justified in the context of, for example, the costs that the employer bears when implementing a court decision on employing the employee until the proceedings have become final. It seems that the burden of bearing the responsibility for court decisions will remain on the employer’s shoulders.

In the light of recent changes in the law, extending employee rights more and more, one has to wonder whether this trend will escalate the reluctance of employers to hire under the employment relationship.