In the case C-221/13, the European Court of Justice (ECJ) has in a decision of 15 October 2014 concluded that Directive 97/81/EC does not hinder that an employer unilaterally transforms a part-time employment into a full-time employment relationship, and that this change not does require consent from the employee.
The Italian woman, Teresa Mascellani, had since 28 August 2000 been employed in the Italian Ministry of Justice working at the referring court in Trento, and since 28 October 2000 been employed on a part-time basis, spread over 3 days a week.
With reference to Article 16 of a new decision no. 20384 of 8 February 2011 the employer unilaterally terminated the part-time arrangement by imposing a full-time working arrangement spread over 6 days, with effect from 1 April 2011. Teresa Mascellani opposed the conversion of the part-time agreement as she took the view that this decision only was valid if the employee consented, and thus Article 16 was in contrast with Directive 97/81/EC. Teresa Mascellani stated that the directive was meant to protect part-time workers from being ordered into a full-time employment, by a unilateral decision of the employer. On this background she brought an action before Tribunale ordinario di Trento, which decided to refer a number of questions for preliminary ruling at the ECJ.
The referring court asked the ECJ if Directive 97/81/EC, in particular Clause 5.2 of the Framework Agreement, should be interpreted as meaning that it precludes national legislation pursuant to which the employer may order the conversion of a part-time employment relationship into a full-time employment relationship without the consent of the employee concerned.
The ECJ decision of 15 October 2014
Clause 5.2 of the Framework Agreement states that "a worker's refusal to transfer a full-time to part-time work of vice-versa should not in itself constitute a valid reason for termination of employment, without prejudice to termination… for other reasons such as may arise from the operational requirements of the establishment concerned".
According to ECJ it is clear that this clause does not require the Member States to adopt rules making the conversion a worker's part-time employment relationship to a full-time employment relationship subject to his consent.
Further the ECJ states that a situation in which a part-time employment relationship is unilaterally converted into a full-time employment relationship, without the consent of the worker concerned, and a situation in which a worker has his full-time employment relationship unilaterally converted into a part-time employment relationship contrary to his wishes, cannot be regarded as comparable because the reduction of working time does not involve the same consequences as an increase, in particular, as regards the worker's remuneration, which constitutes consideration for the work carried out.
Summarizing ECJ concludes that Clause 5.2 of the Framework Agreement does not preclude national legislation pursuant to which the employer may unilaterally order the conversion of a part-time employment relationship into a full-time employment relationship without the consent of the worker concerned.
Bird & Birds comments:
This case concludes that Directive 97/81/EC - on the basis of Clause 5.2 of the Framework Agreement - does not preclude an employer to unilaterally order the conversion of a part-time employment relationship into a full-time employment relationship without the consent of the worker concerned, if the change is fair and reasonable. For this reason the Directive does not protect an employee against termination if he/she does not want to accept such change in his/her employment.