Belgium
Upcoming tax reform. The Belgian Finance Minister has launched a proposal for a tax reform which contains, among others, changes to the tax regime applicable on a number of employee benefits, such as base salary, share (option) plans and supplementary pensions. If approved, there will be an important impact on the tax treatment and subsequently the employer's cost of different employee benefits.
Annual leave entitlement reinforced. A royal decree has been approved granting the right to transfer untaken leave days. In Belgium, a full-time employee is in principle entitled to 20 days of annual leave. If under certain circumstances an employee is prevented from taking leave, they will now retain the right to take up these days during a two year-period following the year in which they should have taken the holidays. The circumstances that allow a transfer of the leave days are accident, illness, maternity leave, parental leave, adoption leave, prophylactic leave or foster care leave. Moreover, these circumstances override annual leave days, even if they occur during the leave. For example, if an employee falls ill or has an accident during their annual leave, the incapacity to work will prevail over the annual leave. The employee will retain the right to the leave that they were not able to take due to these circumstances. Finally, at the end of the employment relationship, the holiday certificate must now mention the transferred statutory leave. These new rules take effect on 1 January 2023 and apply for the first time to the 2024 leave year.
Discrimination and bullying at work. A bill has been approved containing 4 amendments to the rules on discrimination and harassment at work:
- First, the protection of employees against adverse measures taken by the employer is extended. From now on, employers must be able to prove that any adverse action taken is unrelated to both the report (or complaint, legal action or request) by the employee and to facts that can be inferred from the content of this. Previously, nothing was stipulated about the content.
- Second, the scope of persons protected from adverse action is increased. Previously, only official witnesses were protected, who could produce a signed and dated document relating to their testimony. In the future, informal witness will also enjoy the protection against adverse action as long as an "active contribution" took place. This includes, for example, a person who stood up for the victim in a discussion with a supervisor.
- Third, it will be easier for employees to get compensation for retaliatory measures because the reintegration request is no longer obligatory. Previously, the employee who was the victim of unilateral changes to their working conditions following an action against discrimination used to only have a right to a compensation if a reintegration request was filed.
Finally, the compensation for discrimination can now be claimed together with the indemnity for retaliation measures. By example, in case of a discrimination against an employee due to her promotion not being granted because of her pregnancy, the victim can claim and obtain damages on the grounds of discrimination. If the employer goes on to dismiss the employee for initiating legal proceedings, the employee may again claim damages.
Read more legal developments that employers in Belgium should know about here.
England
Read our Employment Law Alert affecting employers in the UK over recent months.
France
Pension reform. On 3 January 2023, the Government proposed draft law for pension reform and implementation can be expected this summer. The first objective of this reform is to gradually raise the retirement age from 62 today to 64 in 2030, in increments of three months per year starting from 1 September 2023. The second objective is the lengthening of the contribution period (increasing to 43 years in 2027 (instead of 2035) and at a rate of one additional quarter per year). There are other aspects of the reform which, as a result, will require employers to amend retirement and pension policies.
On 20 March 2023, the draft law for pension reform was definitively adopted by Parliament, following the rejection of the two motions of no confidence that same day. The next day, the Constitutional Court was consulted on the pension reform law, it now has one month to judge its conformity.
Work-life balance of parents and transparent & predictable working conditions in the EU. The so-called "DDADUE" law (containing various provisions for adapting EU law in relation to the economy, health, labour, transport and agriculture) has been promulgated on 9 March 2023 and published the next day. This law transposes six European directives and brings French national law into line with a number of European regulations (although applications decrees are expected for certain provisions). Regarding employment law, it brings the French Labour Code into line with two directives of 20 June 2019 on:
(i) Work-life balance of parents, various measures regarding paternity, parental and child-care leave such as: paternity and childcare leave to count as a "period of presence" for the purposes of the special profit-sharing reserve; paternity leave taken into account for length of service calculation; extension of parental leave for education; retention of benefits acquired before paternity, etc.
(ii) Transparent and predictable working conditions in the EU such as information for employees on the essential elements of the employment relationship (the adaptation law has created a new article in the French Labour Code for this purpose), mandatory information to be available if requested, for fixed-term and part-time employees (with a minimum six month contract) the list of full-time and permanent positions available within the Company, and the end of derogations to maximum trial periods (the adaptation law abolishes the current derogation which allows companies to continue to apply trial periods longer than those provided for by the Labour Code).
For further details please contact our French team.
Germany
Delayed disclosure of data - employees claim for damages. A Court has ordered an employer to pay €10,000 for failing to comply with the obligation to provide information under Article 15 of the GDPR. Further detail on this judgment and the implications for employers is available here.
Whistleblowing Protection Act. The Bundesrat refused to approve the German Whistleblower Protection Act on 10 February 2023. In particular, the planned anonymous reporting process and the burden on smaller companies were criticised. Currently, the Bundestag aims to pass a law with largely the same content as the law which was passed in December 2022 that no longer requires the approval of the Bundesrat. On 17 March 2023, the German Bundestag discussed two possible proposals for new transposition laws. The Bundestag referendum on the transposition law which is almost identical to the draft from December 2022, scheduled for 30 March 2023, was cancelled at short notice. An alternative date has not yet been announced. Thus, for the time being, it is not foreseeable when the already delayed law for the implementation of the EU Whistleblowing Directive will come into force and whether there will be any significant changes on the home stretch. The EU Commission has now sued Germany for failing to implement the directive. More about the implementation of this in Germany available here.
Overtime claims and obligatory working time recording. Guidelines for employers from the Ministry of Labour for employers on the prerequisites for recording working hours are expected in the first quarter of 2023. It remains to be seen if there will be the long-awaited reform and update to the Working Time Act to adapt to the ECJ and German federal labour court jurisprudence on recording working hours. Read the reasons for the decision of the Federal Labour Court that provided clarity in essential aspects of the implementation here.
Hong Kong
Increase in statutory minimum wage to HK$40 per hour. With effect from 1 May 2023, the statutory minimum wage will be increased from HK$37.5 to HK$40 per hour. Also, with effect from 1 May 2023 the monthly threshold amount for keeping records of hours worked will be increased accordingly from HK$15,300 to HK$16,300 per month.
Declaration of criminal convictions required for talent admission schemes. The Immigration Department announced that those applying for employment visas under the following schemes will be required to declare whether they have any criminal convictions: the Top Talent Pass Scheme and five other talent admission schemes: the General Employment Policy; Admission Scheme for Mainland Talents and Professionals; Technology Talent Admission Scheme; Immigration Arrangements for Non-local Graduates; and Admission Scheme for the Second Generation of Chinese Hong Kong Permanent Residents. This requirement took effect on 22 February 2023 for the Top Talent Pass Scheme, and on 27 February 2023 for all others.
Italy
EU Whistleblowing Directive law published. On 15 March 2023 the Decree implementing the EU Whistleblowing Directive was published. Companies with 250 or more employees must roll out whistleblowing policies by 15 July 2023. For smaller companies the deadline is 17 December 2023. The Italian Anti-Corruption Authority (ANAC) has been tasked with issuing a set of guidelines on the implementation of external reporting channels in additional to internal policies. Details of the requirements and sanctions are available here and we will keep you updated on new guidelines when they are published.
New hires. From 31 December 2023,employers who hire employees under 36 years of age and women over 50 years old who have been unemployed for more than 12 months on a permanent or fixed-term basis will receive a 100% social contribution exemption. In the event of hiring of employees under 36 years of age, the employer can benefit from a social contribution exemption under certain conditions. For more detail on this and the conditions that apply please contact our Italian team.
Remote working. Simplified remote working arrangements no longer apply except for vulnerable employees and parents with children under 14 until 30 June 2023. The employers of remote employees are now required to enter into an individual remote working agreement and notify the Ministry of Labour of these arrangements within five days from the beginning of the remote work setup. For vulnerable employees it is sufficient to notify the implementation of remote working to the employee and the Ministry of Labour, even if the Individual Agreement is not in place but a medical certificate confirming vulnerability is required.
Family friendly policies - paternity and parental leave. From 1 January 2023, the three months paid parental leave (paid by the National Security Body) has been increased to 80% of normal basic salary for a maximum of one month until the child's sixth birthday. Also, the National Security Authority (INPS) has now issued guidelines for Paternity leave that took effect from 1 January 2022. New fathers are entitled to take 10 days' fully paid paternity leave within five months from the birth, this is funded by the INPS. Employers will need to update family friendly policies to reflect this.
Netherlands
Whistleblower Protection Act. On 18 February 2023, the Whistleblower Protection Act entered into force. Each organisation with 50 or more employees is obliged to establish an internal whistleblowing scheme including a reporting channel that meets all the requirements as stipulated in the aforementioned law. For organisations with 50-249 employees the law will not take effect until 17 December 2023. Please see here for further detail on the implementation of the Directive and the requirements of this new Act.
Mandatory reporting on CO2 emissions. As of 1 January 2024, employers with 100 or more employees will be obliged to report data on the CO2 emission from their employees' commuting and business travel within the Netherlands. Employers will be required to provide data on (annual totals of) mileage, means of transportation used and type of fuel and therefore, will not have to calculate the emissions themselves. This will have to take place annually over the previous calendar year in a digital platform established for that purpose. Only commuting and business travel for which the employee receives financial compensation or for which a means of transport has been provided by the employer, fall under the scope of the obligation. For the first time, employers will have to report on the 2023 data no later than on 30 June 2024.
Equal Opportunity in Selection and Hiring Act. On 14 March 2023, the Bill on the Equal Opportunity in Selection and Hiring Act was adopted by the House of Representatives. The Bill obliges employers and intermediaries to establish an internal procedure aimed at preventing discrimination in employee recruitment and selection. Employers with at least 25 employees will have to establish such a procedure in writing (the "Policy"). The Policy will have to indicate, among other things, that the employers' recruitment procedure is based on previously established job requirements relevant to the position. In addition, the Policy must be transparent and verifiable. Furthermore, when hiring workers externally, employers will also have to verify the compliance with the obligations as stipulated in the law. The Dutch Labour Inspectorate (Inspectie SZW) will have the authority to impose fines and make the violation public in case of non-compliance with the law. The Bill is under consideration by the Senate, therefore the effective date remains uncertain at this time.
PRC
Strengthening protection for female employees. On 8 March 2023, aimed at improving special labour protection for female employees in the workplace and following implementation of the amended Law on the Protection of the Rights and Interests of Women, China released two new documents which will also serve as guidance for employers when developing internal rules:
- Rules for the Special Labour Protection of Female Employees in the Workplace: 26 articles covering a range of issues, including non-discrimination in recruitment, equal pay for equal work, special protections for female employees, and the prevention of sexual harassment in the workplace. The document transfers and consolidates the scattered female employee protection provisions in different laws and regulations into a streamlined reference provision that can be easily adopted and implemented by employers.
- Rules for the Elimination of Sexual Harassment in the Workplace: compared to existing laws and regulations, the definition of sexual harassment in this guidance is more specific and broader in scope. It stipulates that "sexual harassment refers to an act that, against the will of another person, makes others feel uncomfortable with sexual associations by language, expression, action, text, image, video, voice, link or any other means, regardless of whether the perpetrator has harassment or any other improper purpose or intention." This guidance also provides a model system designed to eliminate sexual harassment in the workplace by, among other things, emphasising the importance of protecting personal privacy rights during the investigation and handling of reports and complaints.
Typical cases of sexual harassment in the workplace. According to recent typical civil cases released by the Supreme People's Court of China, it was clarified that female employees suffering sexual harassment in the workplace have the right to claim compensation for mental damage and an apology in writing. The Supreme Court believes that the judicial judgment in these cases is conducive to their role in regulating and guiding social behaviour.
Singapore
New anti-discrimination law. In February 2023, the long-awaited interim report on workplace fairness was published and will form the basis of Singapore's first legislation to be enacted sometime in 2024. Our APAC team provides their ten initial thoughts on these recommendations here.
Navigating complementarity through COMPASS and the ONE pass. Key to the aim of strengthening Singapore's position as a global business hub is the introduction of the Overseas Networks & Expertise Pass (ONE pass) and the implementation of the Complementary Assessment Framework (COMPASS). We take a closer look at the requirements applicable to these new changes here, and discuss the impact they are likely to have on business from a resourcing perspective.
Employer verification of educational qualifications. To ensure that employment pass (EP) applicants are not granted work passes based on fake qualifications, going forward employers will be required to verify qualifications, using evidence, to the Ministry of Manpower (MOM) conducted by third-party screening companies listed on the MOM website. This applies to new EP applications from 1 September 2023 and to renewals from 1 September 2024 and coincides with the launch of COMPASS.
Spain
Public pension reform. On 16 March 2023, a new lawwas passed aiming to tackle imbalances in the public social security system and the need to increase revenue due to an aging population, by introducing a series of measures that include an automatic increasing contribution for employees and employers, introducing a "finalist contribution" and updating the formula for calculating the retirement pension. Read more insight into this reform and other relevant measures being implemented in our Employment Flash here.
Menstrual leave. Parliament has approved new legislation, the Organic Law on Sexual and Reproductive Health, allowing female employees government-paid leave to recover from severe menstrual pain, as prescribed by a doctor, up to 75% of earnings from the first day of leave up to a maximum of €4,495.50 per month for all employees, regardless of their profession. This will come into force three months after publication in the Official State Gazette.
Whistleblowing Directive. On 13 March 2023, a new whistleblowing law has come into force, transposing the EU Directive and aiming to provide adequate protection against retaliation for individuals who report violations or non-compliance by companies with European and Spanish regulations. Companies with more than 250 employees must have an internal reporting system in place by 13 June 2023. In-scope companies with less than 250 workers have until 1 December 2023 to comply. For further detail on scope, sanctions and the reporting system requirements see here or contact our Spanish team.
UAE
Proposed DIFC Data Protection Regulations. The DIFC Authority has proposed updates to the DIFC Data Protection Regulations to deal with generative technology systems, development of large learning models and artificial intelligence. The proposed amendments are intended for better, safer and more ethical management of personal data processing and operations.
DIFC companies are encouraged to provide feedback on the proposed amendments to the DIFC Data Protection Regulations by 17 May 2023. Full details of the consultation paper are available.
