Belgium
Returning to the office: Since 27 June 2021, working from home is no longer compulsory and only recommended (for now, up until 30 September 2021). However, employers must still comply with the generic guide allowing employees to work as safely as possible and fines up to a maximum of €200,000 can be imposed for non-compliance. Read more on the measures Belgian employers should be taking to manage the return to work and other coronavirus strategies.
Testing of employees: testing must be voluntary and employee privacy must be guaranteed at all times. Testing can be implemented by prevention officers/occupational doctors under the framework of (i) either cluster management (known infections) or (ii) as preventative testing (unknown infections) or (iii) at the request of the social inspectorate. Criminal and administrative sanctions could be imposed for non-compliance with fines up to €8,000 for each employee (with a maximum of €800,000), increasing with an additional fine up to a maximum of €48,000 and/or imprisonment if health damage is caused. Our Belgian team can provide you with more information on this.
Working from home post-Covid: It is possible that the legal framework will be modified (to anticipate the evolution of hybrid working). For now, where homeworking is structured (i.e. when an employee works from home minimum one day per week) a written agreement must be drawn up for each individual employee and specify certain terms . In additional, tax authorities have clarified the rules and conditions concerning net reimbursements for homeworking costs such a chair, desk, printer etc.
England
Gradual return to office over the Summer. Prime Minister, Boris Johnson, has confirmed that Step 4 of the Summer Roadmap in England will go ahead on 19 July 2021, as planned. The government expects and recommends a gradual return over summer and employers must consult with staff (or unions) in relation to arrangements. Companies will need to manage concerns in relation to public transport and ventilation in offices, as well as decide what safety measures to take and the approach to Covid-testing, as part of return to office planning.
Gender-critical beliefs are protected as a philosophical belief. The EAT has ruled that Forstater's "gender-critical" beliefs are protected as a philosophical belief under the Equality Act. Her beliefs include that sex is immutable (e.g. it is biologically determined at birth). The EAT ruled that the Tribunal had wrongly applied the test in Grainger: a belief would only be deemed "not worthy of respect in a democratic society" if it was akin to Nazism or totalitarianism. This is an important development on how the law in this area is evolving and reminder of the tensions which can arise between conflicting beliefs. (Maya Forstater v CGD Europe & ors)
Flowers and Agnew Supreme Court hearings on holiday pay cancelled. The Supreme Court was due to hear the appeal in East of England Ambulance Trust v Flowers on 22 June 2021 regarding whether holiday pay must include regular overtime. However, the case was removed from the list after it was settled due to an NHS-wide deal on holiday pay. This means that the Court of Appeal decision stands: holiday pay must include regular voluntary overtime. Similarly, the appeal of Chief Constable of the Police Service in NI & ors v Agnew was due to take place in the Supreme Court on 23-24 June 2021 regarding series of deductions but removed from the list in light of settlement discussions.
Read our Employment Law Alert affecting employers in the UK over recent months.
France
Paternity leave: From 01 July 2021, paternity leave was extended to 25 calendar days, including a mandatory period of four days after the three days of birth leave. Employees can then take the rest of their paternity leave within a period of six months after the birth. Fines applicable up to €1500 can apply for employers who do not comply.
Holiday bonuses: The Supreme Court has reiterated that employers must pay a holiday bonus in addition to the thirteenth month of salary (standard payment practice of normal base salary), as provided by article 31 of the Syntec CBA. Non-compliance could lead to a Tribunal enforcing employers to pay damages in addition to a holiday bonus.
Gender equality: New draft law on economic and professional gender equality was adopted on 12 May 2021. It includes the obligation for companies to apply quotas for their executive bodies and is currently being studied by the French Senate. The goal is to have 30% of women within these bodies by 2027 and 40% by 2030. This would come in addition to existing gender pay gap reporting requirements (covered in our April alert).
Germany
Whistleblowing: In order to implement the EU Whistleblowing Directive and harmonise the legal principles developed by the courts regarding whistleblowing, the German government has developed a draft general law on protection for whistleblowers that deliberately goes beyond the implementation of the EU Directive. So far, the draft law has been controversial amongst the governing parties and is yet to be decided if and how it will be implemented. Clarification will still be required on whether Germany will make use of the exception to only implement the Directive for companies with more than 50 employees and we await further developments on this. The government aims to reach an agreement by the end of the implementation period, 17 December 2021 at the latest. Keep updated to the current status of this Directive in Germany and across our European network here.
Amendment of the law on fixed-term contracts: The Federal Ministry of Labour is planning to amend the law on fixed-term contracts. So far, this is only in draft and whether the changes will be implemented and to what extent is still undecided. The draft changes include:
- a reduction of the maximum duration for fixed-term contracts without a material reason for the fixed term from two years to 18 months;
- a limitation of fixed-term contracts to 2.5% of employees for all employers with more than 75 employees;
- a maximum duration for fixed-term contracts with a material reason for the fixed term as well as other adjustments.
Hong Kong
Vaccinated senior executives may qualify for quarantine exemption: The Securities and Futures Commission (the "SFC") has published a circular, announcing that the Government has designated certain categories of fully vaccinated senior executives at licensed corporations to be exempt from the compulsory quarantine arrangements which currently apply to persons entering Hong Kong. Those who qualify for this scheme will be allowed to leave their quarantine hotel or accommodation to undertake certain activities (set out in a pre-approved itinerary), provided they comply with certain conditions. Currently, the following categories of executive may apply for an exemption:
returning executives - senior executives of a licensed corporation with global or regional roles who are returning to HK after travelling to foreign places primarily for the purposes of managing the group entities for which they have responsibility; and
visiting executives - global or regional heads or senior executives of financial institutions that a licensed corporation is affiliated with, who are travelling to HK primarily for the purposes of managing the licensed corporation.
Up to two executives from each category may be granted an exemption in each calendar month for each licensed corporation.
Consultation conclusion on Mandatory Reference Checking Scheme for banks: Following a consultation in May 2020, the Hong Kong Monetary Authority (the "HKMA") has published its conclusions regarding its proposed Mandatory Referencing Checking Scheme (the "MRC Scheme") for banks. Changes to the proposed MRC Scheme include a reduction in the 'look-back' period from 10 to 7 years and a longer response period for referee banks (one month rather than 10 days). The HKMA will now invite the Hong Kong Association of Banks to set up an industry working group (the "IWG") to work out the operational details of the MRC Scheme in accordance with the principles set out in the consultation conclusion. The IWG is expected to deliver the operational details by November 2021, but the precise timeline for implementation of the MRC Scheme has not been confirmed yet.
Government proposes to outlaw "doxxing": The Government is proposing legislative amendments to make "doxxing" (i.e. the practice of publishing personal data about an individual, usually on the internet) an offence: anyone who discloses personal data without the data subject's consent with the intent to threaten, intimidate, harass or cause psychological harm to the data subject or their immediate family (or being reckless as to whether these effects will be caused to such individuals) will commit an offence. The Government also proposes to empower the Privacy Commissioner for Personal Data to (1) carry out criminal investigations and initiate prosecution; and (2) demand the rectification of doxxing content.
Italy
Delegated Regulation: The new EU Delegated Regulations have set out the new criteria for credit companies to define the managerial responsibility of their staff, which came into force on 14 June 2021. The Bank of Italy could apply fines if no assessment is made.
COVID-19 vaccinations: guidelines applying the data protection rules surrounding vaccinations confirm that employers may not collect any personal data on their employee's vaccinations status and that vaccinations are not mandatory (unless they are certain healthcare professionals).
COVID-19 measures due to expire: On the 31 July, the simplified remote working arrangements (no need for an individual agreement) is set to expire, although expected to be extended until the end of the year. The ban on dismissals for non-executive employees is to expire on 31 October, but credit companies will be able to dismiss employees for organisational reasons from 1 October. Further detail is available in our coronavirus (COVID-19) feature for more information generally on the possible legal implications of COVID-19.
Netherlands
Paid parental leave: On 20 April 2021, the bill on Paid Parental Leave (both parents entitled to nine weeks of paid parental leave in the child's first year of life from 02 August 2022) was approved by the House of Representatives but still pending in the Senate. The envisaged date of entry into force is 02 August 2022 but the Bill remains under scrutiny mostly due to the benefit amounting to (only) 50% of the daily wage and is capped at 50% of the maximum daily wage, although the latest amendment provides for the possibility of increasing the payment percentage from 50% to 70% (and then capped at 70% of the maximum daily wage). Therefore, it remains to be seen which benefit percentage will eventually pass the finish line. In any case, employers should be aware that upon receiving a request for paid parental leave, it will be up to the employer to submit the application to the UWV (with all the administrative burdens involved). It will also be (even) more difficult for employers to reject a request for parental leave.
Reforming the labour market: The top employers' and employees' organisations, together with the Social and Economic Council (SER), have come up with an opinion on reforming the labour market. An important part of this involves measures to combat the abuse of flexible working. The main points of the advisory report are as follows:
- Temporary contracts limited to a maximum of three contracts during a maximum period of three years.
- Zero hours contacts and on-call contracts will disappear.
- Temporary agency work to be only possible in case of peak and sickness, along with other increased limitations.
- Ability for employers to unilaterally reduce working hours (temporarily) for all employees in the event of economic circumstances that would otherwise lead to dismissal.
- Self-employed obliged to take out insurance against incapacity for work.
- A new arrangement of "social leave" incorporating birth, paternity and care leave and increased access to benefits for employees who suffer loss of income as the result of disability.
Singapore
The Proper Incorporation of Non-solicitation Clauses: the Best Insurance Policy in Guarding Against Team Lifts? We discuss the High Court's decision in Prudential, which found a fairly wide non-solicitation clause to be reasonable, but not binding on the parties because it was not properly incorporated into the contract.
The Wide-ranging Implications of the Implied Term of Mutual Trust and Confidence: Employers have a duty not to do anything which may damage the relationship of trust and confidence with their employees. In the Shell case, the High Court examined the wide-ranging implications of this duty in the context of an acrimonious separation with a misbehaving employee, dealing with issues such as the conduct of internal investigations, suspension, dismissal, and whether the employer has a duty to combat misinformation about the employee.
Spain
COVID-19 Vaccines/testing/termination ban: Vaccination in Spain is voluntary and therefore, employers are not allowed to request vaccination of its employees. However, although testing is voluntary too, it can be requested for health & safety reasons. In any event, data privacy must be carefully observed.
The ban on termination of employment based on COVID-19 grounds has been extended to 30 September 2021. Likewise, Force Majeure Furlough has been extended to 30 September 2021.
Further detail is available in our coronavirus (COVID-19) feature for more information generally on the possible legal implications of COVID-19.
Whistleblowing/money laundering: There have been a number of developments seeking to amend the Spanish whistleblowing framework:
Specific laws in various sectors already contain some provisions which are in line with the requirements set out in the EU Directive 2019/1937 of 23 October 2019 and we have outlined the implementation of them in our feature here.
Law 10/2010 on the prevention of money laundering and terrorist financing also regulates an internal procedure of channels for reporting potential non-compliance that is similar to the system of the EU Directive.
UAE
Compulsory Covid-19 testing of employees: In March 2021, the Abu Dhabi Department of Economic Development issued instructions to all employers in Abu Dhabi to have their employees undertake PCR tests every two weeks, free of charge, regardless of their sector or industry. Further, in May 2021, the UAE Ministry of Human Resources and Emiratisation ("MoHRE") issued mandatory instructions to employers across the UAE to have their unvaccinated employees tested for Covid-19 every two weeks for them to enter the workplace. Vaccination is not compulsory under UAE law, however, the MoHRE is urging employers across the UAE to encourage their employees to receive an approved Covid-19 vaccination.
Covid-19 office capacity and flexible working guidelines:The guidelines for permitted office capacity for the private sector varies across the Emirates. For instance,offices in Dubai are allowed to operate at 100% capacity so long as social distancing and health and safety measures are being strictly implemented. Whereas, in Abu Dhabi, offices in the private sector may operate only at a 60% capacity. In addition, the Abu Dhabi guidelines advise that individuals over the age of 55, who are pregnant, or who suffer from a medical condition should continue to work from home. Despite some restrictions being lifted, companies in the UAE are continuing to implement flexible working policies as it provides employees with the flexibility to work efficiently from their homes but also the opportunity to return to the office in circumstances where face-to-face interaction and collaboration is required.
UAE Strategy for Talent Attraction and Retention:The UAE Cabinet has adopted the UAE's Strategy for Talent Attraction and Retention ("the Strategy"), an initiative to strengthen the UAE's position as a preferred destination for living, working and investing for talented and highly skilled employees. The Strategy will serve as a framework for the implementation of policies to attract talent from across the globe. The Strategy has three targets which are to position the UAE among the top ten countries in the global talent competitiveness indices, ensure availability of talent across all strategic sectors and cement the UAE's image as an ideal destination for living and working.
