In this article we would like to introduce you to various aspects of the institute of job description and its importance in the relationship between the employer and the employee, as one of them. This is a topic often overlooked in practice.
Part of the employment contract?
The job description is a written specification of the agreed type of work to be performed by the employee for the employer, as one of the mandatory parts of the employment contract pursuant to Section 34(1)(a) of the Czech Act No. 262/2006 Coll., the Labour Code, as amended (hereinafter as the “Labour Code”). The scope of the work that the employer may assign to the employee is determined by the type of work agreed in the contract. It also reflects the position of the employee and the internal structure of the employer.
It is important to emphasize, however, that the job description as such, as opposed to a simple description of the type of work, is not a mandatory element of the employment contract.
According to Section 37(1) of the Labour Code, the employer is obliged to inform the employee in writing of the more detailed designation of the type and place of work, but legal regulation does not provide any further regulation.
Job description – form
As far as the job description itself is concerned, it is usually a unilaterally transmitted or communicated document by the employer. In practice, however, we also encounter job descriptions contained in the employer’s internal regulations, as well as job descriptions annexed to the employment contract or even in the nature of an agreement itself.
Where the job description is a unilateral document given, communicated or otherwise presented to the employee for information, the employer may amend or add to it. It is important to note, however, that if the job description is an annex to the employment contract or even in the nature of an agreement itself, it is necessary to obtain the agreement of the employee to amend it.
Main function and content
The main function of the job description is to clearly define the employee’s duties arising from the employment relationship, which, if not fulfilled or ambiguously defined, entail many legal consequences for both the employee and the employer.
When creating a job description for a specific position (function), emphasis should therefore be placed on ensuring that its content makes it clear to both parties to the relationship (the employer and the employee) what the content of the agreed type of work is and what duties and responsibilities the employee derives from it.
Although the law provides a list of information that should be provided to the employee about the content of the job description (cf. Section 37(1) of the Labour Code), it is rather strict in this aspect. In view of its purpose, the job description should identify and specify the subcomponents and activities of the employee’s work, his or her responsibilities and competences, and also the subordination, i.e. deference and position within the organisational structure.
In the context of employees of the so-called non-business entities referred to in Section 109(3) of the Labour Code, the description of work activity also plays an important role in the classification of employees into salary grades (especially in public sector employment relationships).
Amendments to job description
As mentioned above, the job description is not a compulsory part of the employment contract, but it may become part of the employment contract by agreement of both parties, i.e. the employee and the employer, or it may be negotiated separately in a side agreement. The question is therefore which option to choose when concluding an employment contract. In various respects, these options have their positives and negatives, which the employer must consider and evaluate as part of a risk analysis.
The eventuality of a change or addition to the job description is one of the important factors that an employer must take into account.
If the job description forms part of the employment contract or is agreed in a separate agreement, it can only be changed if the employer and the employee agree to change it (Section 40(1) of the Labour Code).
Conversely, if the job description has been unilaterally communicated to the employee by the employer or is part of an internal regulation, the employer may unilaterally change or amend the job description (within the scope of the type of work specified in the employment contract) without the consent of the employee concerned. The process of notifying the employee concerned of such a change (by handing over the new description) or the process of amending the employer’s internal regulation must be followed.
It should be noted that in both cases, if the change of the job description should be so extensive that its content exceeds or should also change the agreed type of work in the employment contract, this can only happen if the employee agrees to it, except for the exhaustively defined cases in Section 41 of the Labour Code.
The role of the job description in breach of duty
The existence of a properly prepared job description can bring significant benefits to the employer should the employer wish to address with the employee any breaches of the employee’s duties or unsatisfactory performance or expectations for the performance of the agreed work.
In fact, the job description can provide a very good basis for the employer to document what specific duties the employee has in the performance of the job, what the employer’s expectations are for the performance of the job and for the employee’s skills and abilities, and, if applicable, what instructions the employee was or is expected to follow.
Problems may arise in the determination of work duties and the imposition of work, particularly in matters of breach of duty or refusal to perform the task imposed. It is in the interests of both the employer and the employee that the content of the job description makes these facts clear. The principle that failure to perform a duty which does not fall within the employee’s job description and the type of work agreed upon cannot be regarded as a breach of employment duties, as follows, inter alia, from the Czech Supreme Court’s decision 6 Cz 3/88: “The scope of work which an employee is obliged to perform in an employment relationship is defined by the type of work agreed upon. In contrast, the job description is a more detailed description of the work (work activities) which the employee is obliged to perform within the agreed type of work. The employer cannot, without further reference to the job description, require the employee to carry out work which is outside the agreed type of work.”
There is no consensus in the professional debate as to whether the job description should be part of the employment contract or not. The law does not impose such an obligation on the employer, but case law and in particular practice suggest that specifying the work activity within the employment contract has advantages, particularly in relation to the enforcement of specific employment obligations.
When drafting and creating job descriptions for specific positions (types of work), it is important to balance a certain degree of generality on the one hand and sufficient certainty on the other. Too much generality and vagueness can lead to the job description becoming a formal document that is not actually used.
Employer’s information obligation
Last but not least, it is also worth mentioning the appropriateness of determining the job description in relation to the employer’s obligation to disclose, upon request, the job classification, job description and working conditions of a temporarily incapacitated employee to the competent health insurance authority and the attending physician pursuant to Section 65(1)(b) of the Czech Act No. 187/2006 Coll., on Sickness Insurance.
The employers’ argument that they cannot fulfil this obligation because they are not obliged to disclose the job description to their employees is legitimate, but they risk not only a fine of up to CZK 20,000 under the same law. The aim of this obligation is, among other things, to comply with the conditions of occupational health protection according to the Czech Government Regulation No. 361/2007 Coll., the violation of which may render the employer liable for the employee’s incapacity for work or long-term incapacity for work.
Conclusion
In general, we consider it highly advisable for the employer to set out and communicate the job description within the limits of the agreed type of work to the employee, with a reasonable degree of specificity, so that the job description brings sufficient certainty to the employment relationship for the parties to clarify, in particular, the employer’s expectations of the employee.
It can be concluded that we consider that it is possible and permissible, and beyond the scope of practicality for the employer, for the job description to be a rather one-sided document communicated by the employer to the employee, which brings much more flexibility to the employer, and we are of the opinion that there should not be any problems with the enforceability of the employee’s obligations if the employee is properly familiarised with the job description.
We are available to answer any questions you may have regarding the job description and other aspects of the employment contract and employment relations, so please do not hesitate to contact us.
Mgr. Jakub Málek, managing partner – malek@plegal.cz
Ráchel Kouklíková, legal assistant – kouklikova@plegal.cz
23.05.2022