The Employee’s Right to Be Trained: An Attempt to Assess a Legal Reasoning
15 Pages Posted: 21 Dec 2018
Date Written: November 29, 2018
Adjusting employees’ skills to new technologies and innovation is nowadays considered to be essential. What distinguishes the current industrial revolution from the previous ones is probably its rapidity: while technological changes in the past used to happen from one generation to another, the father not being able to perform the job of the son, today employees face deep and even radical changes in the nature of the working activity that they are required to undertake to stay active on the labour market.
The topic is of extreme interest to human resource managers and sociologists but also deserves specific attention from the perspective of labour lawyers. The working activity of employees and their skills and competences are at the core of the employment relationship. The exchange formalized in the employment contract can be described not as a simple exchange between a general working activity and a salary but rather as an exchange between a specific activity to be carried out with the proper competencies and the proportionate salary.
Therefore, the competencies owned by the employee, as well as the evolution of such competencies over time and the (legal) tools that incentivize such evolution, are of extreme interest to lawyers who address the study of employment contracts. For this reason, the relevance of training as an essential component of the employment relationship deserves specific attention from labour lawyers.
Despite this and the fact that the technological revolution is currently being debated by many labour scholars around the world, very few words have been devoted to the most visible effect of such revolution: the deep change in the working activities themselves and the persistence of this process over time. One training programme, a course or some classes is sure not enough for employees to keep pace with the innovations that their job requires. The process of change is almost permanent, and the risk of not being able to adapt and perform properly hangs like the Sword of Damocles.
The main approach adopted by labour lawyers to address the topic traditionally focuses on the side of the employer and involves two levels of investigation. First, labour law scholars focus on the so-called jus variandi or, more generally, the prerogative of the employer to amend the content of the contract unilaterally to adjust it to the organizational and business needs. This is often considered as one of the typical powers of the employer and a specific feature of the employment contract. In this respect, the fundamental questions asked by labour lawyers are the following: Is the employer entitled to require the employee to perform new duties that have not been contemplated in the employment contract? Within which legal boundaries? What are the consequences for the survival of the contract if the employee’s skills are outdated? Such questions are far from easy to answer. Indeed, the very concept of contract and obligation comes into question when one of the parties is entitled to amend the content of the contract unilaterally.
From the second perspective, the topic attracts the attention of labour lawyers when it involves the possible redundancy of the employee. In some countries, before making an employee redundant, the employer has to make sure that no other position within the business structure is available for the employee to occupy. This duty (often called the duty of repêchage) involves an investigation into the possible positions to be considered. Therefore, the nature of the working activity and its characteristics as well as the possibility of changing it are considered to determine whether the employer has considered all the possible options before making an employee redundant.
A different perspective has often been neglected (with due exceptions). Has an employee the right to be trained and retrained during her working relationship with her employer? Has, then, the employer a positive obligation to sustain the costs of the employee’s training?
The present paper aims to address this research question by adopting a broad level of investigation, focusing not only on the pathology of the employment relationship (is the dismissal for objective or business reasons lawful?) but also on its physiology: has the employee a right to be trained irrespective of the employer’s decision to make her redundant? Can we rely on rigorous juridical arguments to sustain the existence of this right or does it fall outside the synallagma of the employment contract? The answer is not easy to find and might largely change not only from common law to civil law legal systems but also within the two families of systems, in which the interpretation of the notion of a contract can be very different.
The paper would like to open a line of research – with no expectations of being exhaustive – on the ‘employee’s right to be trained’ by adopting a rigorous legal method that starts from the notion of contract and obligation. It addresses the issue under the Italian legal system, aiming eventually to provide a possible answer to the given research question, which might be useful in extending the research to a more comparative level.
Keywords: employment, training, working obligation
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