Belgium
Working time: In two judgments on 9 March 2021, the European Court of Justice clarified when stand-by time must be considered as working time and which specific criteria (i.e. duration of the intervention time and the average number of interventions carried out during periods of stand-by time) must be taken into account to make the assessment.
Brexit: On 6 March 2020, Belgium adopted an additional hard Brexit Act for employers facing difficulties due to Brexit, with temporary measures aimed at safeguarding employment. This act entered into force on 22 March 2021 and will remain in effect until 21 March 2022.
Net reimbursements for homeworking materials: the Belgian tax authorities have adopted a new circular wherein the rules concerning the possibility to grant a net allowance for homeworking costs are clarified. Moreover, it is specified which additional materials (e.g. chair, desk, printer), on top of the costs / materials covered by a net allowance, can be reimbursed by the employer and under which conditions this is possible.
England
Commission adopts new EU Directive on Pay Transparency: This new directive proposes a powerful set of measures aimed at improving gender equality across the EU, including gender pay gap reporting (as the UK already does), transparency of pay to job seekers and employees, as well as measures to improve access to justice. It is important for businesses with European operations and may have implications for the UK.
Regulators look to toughen their approach to gender equality and diversity and inclusion: Speaking at the Women in Finance Charter Annual Review Launch on 17 March, Nikhil Rathi of the FCA announced that it is exploring ways to toughen its approach to diversity and inclusion, and is considering whether to use Senior Manager approvals as a tool to enhance diversity. Read our update.
Supreme Court rules that Asda store staff can compare themselves to distribution staff for equal pay purposes: In this long-running equal pay case, the Supreme Court has finally settled the preliminary issue that the predominantly male distribution workers are a valid comparator to the predominantly female retail store staff. The case is now a leading authority on the cross-establishment comparison and provides guidance for future case management. (Asda Stores Ltd v Brierley & others).
Read our Employment Law Alert affecting employers in the UK over recent months
France
Update to Gender Pay Index: A new Decree requires that starting from this year, in addition to publishing their gender pay Index based score (due 01 March), employers must also publish the results of each of the indicators that have been used. The total score and results of each indicator must be published in a "visible and readable manner". Deadlines this year are 01 May 2021 for the total score and 01 June 2021 for the results of the indicators. Next year, companies employing more than 50 employees that benefitted from the Government Recovery Plan credits and obtained results below 75 points must also publish progress targets and corrective measures by 01 May 2022.
Changes to the secondment regime: From 30 July 2020, the Labour Administration gave details on the various changes to this regime. We have outlined the main points for employers to note which include remuneration, business expenses, duration, applicable French laws and obligations required when seconding employees to France.
Settlement agreement drafted in general terms/ general waiver applies to non-compete clause: Recent case law has shown that if a final waiver of claims clause is written in general terms, it includes obligations related to the non-compete clause even if the employer has not expressly waived the non-compete. The employee will therefore not be able to request payment of the financial compensation for this clause. However, in practice, we recommend to expressly waive the non-compete clause upon termination of the employment contract.
Germany
Pay Transparency Act: A recent Federal Labour Court decision has strengthened the requirements for gender pay transparency. The court has ruled that if, during a claim of equal pay under the Pay Transparency Act it is found that a woman's pay is lower than the comparative pay (median pay) of her male comparator then the assumption is gender discrimination and the onus is then on the employer to refute this. We outline this and other decisions that have brought new momentum to the topic of pay transparency.
Works Council Strengthening Act: This Act, currently in draft but expected to pass later this year, will give special protection against dismissal for initiators of works council elections by providing employees who initiate an election the same protection against dismissal as employees standing for election and works council members, eliminating the short period during which the employer is currently able to terminate employees after having learned of their plan to form a works council. We highlight the measures to be provided in this Act for employers to note.
Hong Kong
Introduction of protection against harassment for breastfeeding women: On 17 March 2021, the Sex Discrimination (Amendment) Bill 2020 was passed to further strengthen the legal protection for breastfeeding women by introducing protection from harassment on the ground of breastfeeding. The new protection against unlawful breastfeeding harassment, together with the prohibition on breastfeeding discrimination introduced under the Discrimination Legislation (Miscellaneous Amendments) Ordinance 2020, will both come into force on 19 June 2021.
Launch of the EOC's anti-sexual harassment hotline: On 25 January 2021, the Equal Opportunities Commission announced the launch of an Anti-Sexual Harassment Hotline manned by its newly established Anti-Sexual Harassment Unit. The goal of this hotline is to provide members of the public with information on provisions of the law, advice on where to lodge complaints of sexual harassment and seek redress, and referral to counselling and therapy services.
Proposal to increase statutory holidays from 12 to 17 days by 2030: On 5 March 2021, the Hong Kong Government gazetted the Employment (Amendment) Bill 2021, which seeks to increase progressively the number of statutory holidays, from 12 days to 17 days by five increments at two-year intervals from 2022 to 2030.
Italy
Italian Budget 2021: In the recent Budget, Italy has (i) introduced tax breaks for employers who hire employees up to 35 years of age and/or women, (ii) extended Paternity Leave from 7 to 10 days, to be used within 5 months of the child's birth, and (iii) given the green light to set up a fund supporting gender balance and gender pay equality in the workplace;
Back payment of social security contributions: The Italian national social security institute (INPS) has recently served notice to companies demanding unpaid contributions and related penalties on employees who began working prior to 1 January 1996. (Companies have to pay higher contributions for employees who began working before 1996 and the INPS had discovered that although employees had declared they began working after 1996, they had begun working earlier). We recommend conducting general payroll reviews to prevent future demands. We also see the possibility to challenge these payments and penalties as employers do not have access to their employees' full employment history, whereas INPS does.
Reinstatement obligatory in cases of dismissal due to economic reasons: In Italy, cases of court ruled unfair dismissal may result in employee reinstatement. While for unlawful disciplinary dismissals the court is required to order reinstatement of the employee, in cases of unlawful dismissal due to economic reasons, the question of employee reinstatement was left to court discretion. However, a recent Constitutional Court ruled that this disparity goes against the principles under the Italian constitution. Reinstatement must be ordered in all cases in which a court ascertains that objective reasons for dismissal were lacking. Going forward, employers must be more careful when carrying out redundancies in order to avoid potential claims resulting in employees being reinstated by the courts.
Netherlands
Employment status: In the recent case of Deliveroo v Federation of the Dutch Trade Union Movementthe Court of Appeal has ruled that the couriers for Deliveroo are workers and not self-employed. In agreement with a Supreme Court ruling, this was assessed by taking into account the rights and obligations agreed especially; i) the performance of work, ii) the receipt of wages and iii) the existence of a relationship of authority. More employment status case law is expected to follow, especially since the Assessment of Employment Relationships (Deregulation) Act will be replaced by new legislation (expected 1 October 2021). We advise employers to regularly check assignment contracts, both from an employment law and tax perspective, whether there is (still) a pure assignment relationship and not a (disguised) employment relationship.
Redundancy reassignment obligation for employers: Recent case law has highlighted for employers the onus on them to provide evidence if a redundant employee is not be reassigned to a suitable alternative position. Therefore, if there are doubts about the suitability of the redundant employee for a particular vacancy, or if the employee makes claims they are suitable, it is advisable to set up an application procedure and, for example, have the employee take an assessment in order to be able to accept or reject them on objective grounds.
PRC
New judicial interpretation dealing with labour disputes: From 01 January 2021, the Supreme Court of China created a new integrated standard to adjudicate labour disputes. This new judicial interpretation has combined several previous judicial interpretations regarding frequently disputed labour issues such as the formation of employment contracts, non-compete issues etc.
The prevention of sexual harassment guidelines released: From March 2021, the first official guidelines regarding the prevention of sexual harassment were released. Nine different government authorities in Shenzhen city, including the Association of Females, the Public Security Bureau and others have jointly released the first official guidelines. They include the key factors of sexual harassment, the responsibilities held by different government authorities and outlines grievance methods.
Enforcement of non-compete clauses against former employees: According to recent decisions Chinese Courts are becoming more supportive of employers' claims towards the enforcement of non-compete obligations against former employees. In cases of violation, employers can claim remedies against former employees such as a request that the former employee return the non-compete compensation paid, request for liquidated damages to be paid and for the employee to continue to comply with the non-compete obligation.
Singapore
Terminations for cause: setting a high bar? There are various pitfalls for employers when dismissing employees for cause in Singapore. A recent case in question is Fuji Xerox, where the employee succeeded in a wrongful dismissal claim and was awarded S$1.4 million by the Singapore High Court. We have explored this case and provided the key takeaways for employers to note.
I-Admin: a new approach to breach of confidence claims in Singapore: The seminal Court of Appeal decision in I-Admin has reformulated the test for breach of confidence claims. We outline the ramifications for employers going forward and comment on the difference in positions between Singapore and Hong Kong.
Sexual harassment in Singapore: a new frontier? We explore the strange trend of a rise in sexual harassment complaints during the pandemic and suggest practical prevention tips for employers in this article we contributed to. for the inaugural publication of International Employment Lawyer, a global employer-specific publication focusing on employment law.
Spain
Paternity and maternity leave equality: from 1 January 2021, paternity leave is now up to 16 weeks, of which 6 weeks are compulsory, continuous and full-time after the birth, and the other 10 weeks can be taken in weekly periods within 12 months following the birth. This 10 week period may be taken full or part-time, accumulated or interrupted.
Remote working obligations: a Royal Decree Law has made it mandatory for companies to sign remote working agreements with any employee who renders more than 30% of their services remotely (i.e. an average of 2 or more days per week full time). A fine of up to € 6,250 may apply to companies that do not comply. This working agreement must cover topics such as hours worked (remote and office), equipment/tools provided, cost incurred, reimbursements made, company procedure, etc: This agreement is not necessary if remote working is only a result of Covid-19.
Promotion of gender equality and equal pay: The last quarter of 2020 saw Spanish regulations regarding gender equality reinforced and employer obligations tightened. From 7 March 2021, all companies with more than 100 employees will have to negotiate and agree Company Equality Plans (companies employing between 50 and 100 employees still have another year to comply). Likewise, from 1 April 2021, all companies with an obligation to have an equality plan are now also obliged to carry out a pay audit to analyse and, if necessary, correct potential gender salary gaps.
UAE
DIFC Employment Law - Proposed Amendments Consultation: The Dubai International Financial Centre Authority issued a Consultation Paper in February 2021 proposing various changes to the DIFC Employment Law and the DIFC Employment Regulations principally around changes to the Qualifying Scheme regime (which replaced end of service gratuity in the DIFC from 1 February 2020). The period for submitting comments to the Consultation closed on 28 March 2021, however, we have drafted an article which summarises the key proposed changes available here.
Working remotely from Dubai: Given the way that the pandemic has changed the way people live and work, Dubai has launched a new residency programme which allows overseas remote working professionals to relocate and live in Dubai together with their families while continuing to work remotely for their overseas employer. The residency lasts for one year, but it can be renewed. Once in Dubai, they will be able to enjoy benefits similar to that of residents including access to telecoms, utilities as well are schooling options for their children. Applicants may also benefit from the UAE's zero income tax policy and will be eligible to receive a Covid-19 vaccine. Applicants can apply here.
