Roschier Insights Seminar, key takeaways: Working-time autonomy, additional leave days and recent case law
The Working Hours Act and the Annual Holidays Act were subject to changes during the previous parliamentary term in Finland. The changes in the Annual Holidays Act have already entered into force on 1 April 2019, whereas the new Working Hours Act will enter into force on 1 January 2020. Roschier hosted a breakfast seminar for clients and HR professionals on these subjects.
Roschier’s employment law experts Mari Mohsen, Janne Nurminen and Ingrid Remmelgas addressed the most central changes of the above-mentioned Acts in a Roschier Insights seminar in November. Clearly, these issues were topical for many clients, since there was a room full of participants discussing them.
The new Working Hours Act: The scope of the new Act can be understood as being a bit wider than before, since the amount of derogations has decreased when compared with the previous Act. A central new term in the Act is ‘working-time autonomy’, which means that work shall not be left outside of the scope of the Act only because that work has been listed as a derogation to the scope, but instead an employee must also have working-time autonomy. As a counterweight to the wider scope, there will be more working-time flexibility measures available: when implemented with due care, these measures will benefit both the employees and the employer.
The changes to the Annual Holidays Act: Due to recent Court of Justice of the European Union (CJEU) case law, there is now a new concept in the Act, additional leave days (lisävapaapäivät in Finnish). Essentially, these additional leave days will ensure that employees have a right to get a four-week holiday per year, in situations where the employee has not been able to accrue the minimum of 24 days of annual holiday due to sickness, accident or medical rehabilitation. The right to additional leave days will cease after 12 months of uninterrupted absence. There are some differences between additional leave days and days of annual holiday. For example, no holiday bonus (lomaraha in Finnish) is paid when taking the additional leave days, and additional leave days do not accumulate new days of annual holiday, whereas regular days of annual holiday do.
Recent case law: The Supreme Court of Finland outlined in KKO:2019:76 that a termination agreement between an employer and an employee was void, since the agreement was entered into under circumstances that would make it incompatible with honor and good faith for anyone knowing of those circumstances to invoke the agreement. The lessons learned from this case are the following: give the employee sufficient time to consider the termination agreement; do not sign it during the first meeting; do not offer anything less than the employee is entitled to at the time of a “regular” termination of the employment; and respect the other party without giving in.
Another case that was discussed, KKO:2019:77, handled a situation where the notice of termination was not given to the employee until 3,5 months after the reasons for his dismissal became known to the employer. The reason for the delay of the notice related to the employee’s sick leave, not the actions of the employer: the statutory hearing, which is required in case of dismissal, was postponed twice at the request of the employee, who claimed not to be able to attend due to his work-related stress. The Supreme Court of Finland stated that it is unclear whether it is acceptable to dismiss an employee in these circumstances after 3,5 months, and therefore the case was referred back to the Court of Appeal for further consideration.