Belgium
Publication of new Collective Bargaining Agreements: On 23 July 2021, the National Labour Council (NLC) published new CBAs regarding Unemployment Company Allowance (UCA), “end-of-career jobs” and unemployment for economic reasons.
- Unemployment Company Allowance (UCA): extends and modifies the age conditions for those who qualify for the UCA regime for medical reasons, physically demanding roles, night work and/or long length of service and removes the requirement to remain available for the labour market.
- End-of-career jobs: amended conditions regarding benefits rights in the context of “end-of-career jobs” for employees with long length of service, in physically demanding roles or working within a company in difficulty or restructuring.
- Unemployment for economic reasons for white-collar workers extended: this now ensures that in the absence of a sectoral CBA, companies do not first have to negotiate a CBA or draw up a business plan to introduce economic unemployment for white-collar employees.
The wage margin has been set for 2021-2022: The wage margin determines how much the average wage cost per employee may increase during a two-year period. For the period 2021-2022, the maximum margin for the development of wage costs of 0.4% has been set. An employer who does not respect the wage norm can be fined between €250 and €5,000. The fine is multiplied by the number of employees involved, up to a maximum of 100 employees.
Coronavirus measures: The government has announced a raft of new measures for employees and employers to note:
- Corona premium: employees can receive a one-off premium up to €500 net per person.
- Corona temporary unemployment: this is extended until 31 December 2021.
- Working from home: No longer compulsory but structured working from home is growing.
- Facemasks: Not compulsory in workplaces in Flanders from October.
- Vaccinating rates: Companies may verify their rates to encourage employee vaccination.
- Covid Safe Ticket: Not to be applied in the workplace.
Further details on these new Covid-19 measures are available here.
England
PRA and FCA publish discussion paper on diversity and inclusion in the financial sector, and FCA consults on proposals to boost diversity on boards. On 7 July 2021, the regulators issued Discussion paper DP21/2, seeking views on how to accelerate change on D&I in the financial services sector. There are proposals on leadership, governance, individual accountability via the SMCR and remuneration, as well as suggested policies including setting targets, training, promoting progression and D&I audits. Comments are invited by 30 September 2021. For more detail, read our Insight here. Flowing from this, on 28 July 2021, the FCA launched a consultation on proposals to boost disclosure of diversity on listed company boards. It closes on 22 October 2021.
Government publishes response to consultation on sexual harassment. Following its consultation back in 2019, triggered by the #metoo campaign, the Government has finally published its response. It will introduce a new mandatory duty on employers to take “all reasonable steps” to prevent harassment at work, which would be enforceable without the need for an incident to take place. It will also introduce protection against third party harassment, but will not extend protection to interns or volunteers. The Government will “look closely” at extending the time limit to bring all Equality Act claims from three to six months. However, there is no commitment to any timeframe: changes will be made “when parliamentary time allows”.
ECJ rules that ban on religious dress not discrimination. The ECJ has held that a ban on workers wearing any visible sign of political, philosophical or religious belief in the workplace does not amount to direct discrimination, as long as the rule is applied in a general and undifferentiated way. Such a rule can be justified by an employer’s genuine business need to pursue a policy of neutrality for its customers or users. It could not be justified if it were limited to ‘conspicuous, large signs’ – it must extend to all visible forms of expression. (IX v WABE & MH Muller v MJ)
Requiring role to be office-based was indirect disability discrimination by association: The Tribunal has ruled that the employer’s requirement for a senior manager to no longer work from home amounted to indirect disability discrimination by association. The Claimant was the primary carer for her disabled mother. The Tribunal applied the ECJ’s judgment in Chez Razpredelenie Bulgaria AD C-83/14 that the concept of associative discrimination could in principle be extended to indirect discrimination. It accepted that carers for disabled people are less likely to be able to satisfy a requirement to be office-based than non-carers. The requirement to be office-based put her at a substantial disadvantage because of her association with her mother’s disability as her primary carer. (Follows v Nationwide Employment Tribunal Employment Tribunal 14 March 2021).
Read our Employment Law Alert affecting employers in the UK over recent months.
France
Equality index: As a reminder, by 01 March each year, companies with 50+ employees must have published and transmitted the results of their equality index (out of 100 points). Since June 2021, they must also publish the results of each of their indicators (between 4 and 5 indicators depending on the size of the company) in a legible and visible manner on their website.
Strengthening occupation health prevention: A new law to strengthen occupational health prevention will come into force on 31 March 2022:
- Mandatory consultation of the CSE on the Single Occupational Risk Assessment Document (DUERP) and its updates in companies with at least 50 employees.
- Mandatory storage of the DUERP for at least 40 years.
- Electronic filing of the DUERP and its updates on a digital portal.
- From 01 July 2023: companies with 150+ employees.
- By 01 July 2024 at the latest: companies with less than 150 employees.
- Minimum 5 days of training for CSE during their first mandate and, in case of renewal, 3 days.
- Working conditions is a new topic to be negotiated on during the compulsory negotiation in companies on professional equality between women and men and on quality of life.
- Creation of a mid-career medical check-up, organised at a time determined by branch agreement or, failing that, during the calendar year of their 45th birthday.
- Creation of a liaison meeting between the employee on long-term leave and the employer.
Minimum wage: The hourly minimum wage was raised to €10.48 on 01 October 2021.
Germany
AI soon to be the focus of works councils: The Works Council’s Modernisation Act strengthens the rights of the works council in digitalisation projects, also with a view to the use of AI in HR. We discuss these newly introduced rights here.
General Data Protection Regulation (GDPR): The right to information under Art. 15 GDPR is becoming increasingly important. The claim is often asserted by employees in the context of ongoing dismissal protection proceedings or other legal disputes, in particular, to put pressure on the employer and thus improve their negotiating position.
On 27 April 2021, the Federal Labour Court ruled on the right to information under Art. 15 GDPR. According to the decision, the right to information entitles employees to request copies of personal data that are the subject of data processing by the employer.
The employee must sufficiently specify which documents they are requesting. For example, it is too vague for the employee to demand the disclosure of all e-mail correspondence that has been conducted with or about them. The employee can only demand personal data (e.g. data from which they can be recognised).
Fines for non-compliance could be up to €20,000 or 4% of the previous year’s sales generated worldwide but imposing such a high fine is highly unlikely.
Time recording at work – works council’s right of initiative? Employers should consider introducing a time recording system even before the implementation of a recent ECJ ruling into national law. We discuss this recent judgment and if works councils can demand an introduction of a time recording system here.
Hong Kong
Introduction of doxxing-related offences: On 29 September 2021, the Personal Data (Privacy) (Amendment) Bill 2021 was passed and will come into operation shortly. This bill criminalises doxxing acts (ie public disclosure of personal data of target person(s) gathered through online search engines, social platforms and discussion forums, public registers, anonymous reports, etc.) and confers on the Privacy Commissioner’s statutory powers to issue cessation notices demanding the cessation or restriction of disclosure of doxxing content, as well as enforcement powers to conduct criminal investigations and institute prosecution for doxxing cases.
Proposed mandatory reference checking scheme: Following a consultation in May 2020, the Hong Kong Monetary Authority (HKMA) has published its conclusions regarding its proposed Mandatory Referencing Checking Scheme (the “MRC Scheme”) for banks in Hong Kong. The MRC Scheme is intended to address “rolling bad apples” by requiring banks who are recruiting to fill certain specified roles to obtain references from an applicant’s current and former employers who are also banks in Hong Kong. The HKMA has invited the Hong Kong Association of Banks to set up an industry working group to work out the operational details of the MRC Scheme and to deliver details by November 2021.
Extended coverage of employees’ compensation: The Employees’ Compensation (Amendment) Ordinance 2021 came into effect on 2 July 2021. This Amendment Ordinance extends the coverage of employees’ compensation in a situation where an employee sustains an injury or dies as a result of an accident when commuting to or from work during a period of “extreme conditions” such as those arising from a super typhoon or other natural disaster of a substantial scale.
Italy
Reinstatement obligatory in cases of dismissal due to economic reasons: 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. On 17 March 2020, Law Decree No. 18 of 17 March 2020 was enacted. It provides for measures aimed at helping both employers and employees to face the crisis and the emergency situation owing to the spread of Covid-19 in Italy. 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.
Italian Budget 2021: In the recent Budget, Italy has:
- introduced incentives in terms of social security contributions (not tax contributions) for employers who hire employees under the age of 36 and/or women;
- extended Paternity Leave from 7 to 10 days, to be used within 5 months of the child’s birth; and
- 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.
COVID-19 Green Pass: The government has imposed a “Green Pass Certificate” as a mandatory requirement for access to the workplace. We outline here how this is expected to be implemented from 15 October 2021 and employer concerns that have been raised.
Netherlands
- Uber drivers qualified as employees: Following the recent case of Uber v Federation of the Dutch Trade Union Movement, drivers who transport passengers via the Uber app must be qualified as employees in the taxi business. Uber's working method meets all the characteristics of an employment relationship: labour, authority and remuneration. As the CBA Taxi transport has been declared universally binding, it should also be applied by Uber and with retroactive effect for the period during which the CBA has been declared universally applicable.
PRC
New legislation on personal information protection: On 20 August 2021, the Standing Committee of China’s National People’s Congress released the official version of the Personal Information Protection Law (PIPL), which will come into force on 01 November 2021. The PIPL is the first legislation in PRC dedicated to personal information protection. The PIPL extends the personal information and privacy rights stipulated in the Civil Code and is a pivotal part of PRC’s comprehensive data protection system. Notably, the PIPL sets out regulations for personal information processing and cross-border transferring. Various obligations imposed on data processors and restrictions on the cross-border transaction will significantly impact the human resource activities of multinational corporates, including but not limited to background checks, social welfare and insurance, performance evaluation, compliance investigation, and retirement. Read here for what employers should know about the PIPL and what actions should be taken.
Guiding Opinions on Protecting the Labour Rights of Workers Employed in New Labour Forms: On 16 July 2021, the Ministry of Human Resources and Social Security published their guiding opinions on protecting the labour rights of the growing number of workers employed in new labour forms that rely on the internet, ie online takeout deliverers, car-hailing drivers, internet marketers, etc. The guiding opinions are explicit that internet platform employers are obligated to protect the labour rights of their employees and establish formal labour relationships through labour contracts. The opinions indicate that new form employees can get occupational injury relief and participate in local social insurance. Further, these employers also have a responsibility to establish a reasonable distribution system to reduce workload and provide fair remuneration.
China steps in to regulate '996' working schedule: The Supreme People's Court and the Ministry of Human Resources and Social Security jointly published the typical cases of labour disputes on 26 August 2021. The typical cases are aimed to unify the standards of adjudication and remind employers of the risks of illegal behaviour and guide workers to rationally protect their rights according to the law. The ‘996’ working schedule refers to working 9 am to 9 pm per day, and six days per week. It is widely adopted by many technology companies, including companies in the online services and e-commerce sectors. One of the disclosed cases showed that the ‘996’ schedule seriously violated the provisions of the law on the maximum limit of allowed working hours.
Singapore
Mandatory retrenchment notifications: With effect from 1 November 2021, employers with at least ten employees must notify the Ministry of Manpower of any retrenchment carried out, regardless of the number of employees affected. Previously, the notification obligation was only triggered if employers made at least five employees redundant within the immediately preceding six-month period.
Anti-discrimination law: The Singapore Government has made a commitment to enacting workplace anti-discrimination laws. Presently, there are only guidelines issued by the Tripartite Alliance for Fair and Progressive Employment Practices on the fair treatment of workers, which sets out non-binding guidance with limited sanctions for non-compliance.
Spain
Equality plans: It will be mandatory for companies with more than 50 employees to implement an equality plan from 08 March 2022 onwards. The equality plan must include diagnosis, content, subject, salary audits, monitoring and evaluation, as well as the requirement to proceed with public registration. Failure to have the plan in place in due course will incur a fine between €751 and €7,500 if considered serious, or between €7,501 and €225,018 if considered very serious (sanctions have recently increased from 01 October 2021).
Redundancies: The ban on redundancies for Covid-19 grounds has been recently extended until 28 February 2022
UAE/DIFC
Dubai International Financial Centre (DIFC) employment law amendments: In September 2021, the Amendment Law came into force with immediate effect, along with the many new Regulations. New amendment law covers many aspects for employers to note including unlawful deduction from wages, probationary periods, vacation, period of service for fixed term contracts, additional payments, “exempted employees”, secondment, discrimination and Certificates of Exemptions.
Details of the amended employment law as well as the new Regulations surrounding the Certificates of Compliance or Exemption are available here.
Visa amendments in the UAE: As part of the “Projects of the 50”, marking 50 years since the founding of the UAE in 1971, UAE leaders have announced some of the 50 projects that are being launched to provide economic opportunities to the UAE, including one to restructure the VISA process.
The amendments proposed include a change in the grace period following a work visa expiring due to termination of employment, which would be increased from 30 days to three to six months as well as the extension of business trip permits for three months to six months and the introduction of the Green Visa for high achievers and a Freelance visa for self-employed persons.
There has been no indication at present as to when these rules will enter into force, and developments will continue to be monitored.
