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Welcome to this second edition of our quarterly Global Employment and Labor Law Update for 2022.

In our last edition, we reported on themes emerging globally around transparency, equality and fairness. Those themes have progressed further this quarter and look set to continue, including significant new laws around harassment, pay reporting and victimisation.

In Europe, many jurisdictions have legislated to provide the temporary right of residence and access to the labour market for Ukrainian workers. Further, as the August deadline for the local implementation of the Directives on Transparent and Predictable Working Conditions and Work-life Balance draws closer, developments around family-related leave, contractual certainty and flexible working are a feature in many jurisdictions. In addition, the implementation of the Whistleblowing Directive continues in many member states, with some choosing to exceed the minimum standards set by the Directive.

Keeping apprised of new legal developments and maintaining visibility of those on the horizon continues to be critical for those planning and managing people strategies. Drawing on the significant experience and expertise of our teams of lawyers around the world assisting clients with all aspects of employment law, this latest Update provides a summary of the key changes. Please do not hesitate to contact us if you wish to find out more about any of the developments.

 

Diane Gilhooley Diane Gilhooley
Global Head of Employment, Labor and Pensions
dianegilhooley@eversheds-sutherland.com

Asia Global Update Banner

South Africa

National minimum wage

Increases in the minimum wage have taken effect, as follows:

  • Regular employees, farm workers and domestic workers: R23,19 per hour (previously R21,69 per hour for regular employees / farm workers and R19,09 per hour for domestic workers); and
  • Workers employed in an expanded public works programme: R12,75 per hour (previously R11,93 per hour).

Impact Date

1 March 2022

Employer Implications/Action Needed

Employers should ensure that they make any necessary adjustments to rates of pay to comply with the national minimum wage requirements.

Employer Risk

Failure to pay the national minimum wage risks fines. For first offices, fines are calculated based on the greater of twice the value of the underpayment or twice the employee's monthly wage. For further non-compliance, fines are calculated based on the greater of three times the value of the underpayment or three times the employee's monthly wage.

Link

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BCEA earnings threshold increase

The earnings threshold under the Basic Conditions of Employment Act (BCEA) has increased to R224 080,48 per annum / R18,673 per month (previously R211 596,30 per annum / R18,673 per month).

Impact Date

1 March 2022

Employer Implications/Action Needed

Employers should assess which of their employees earn a salary above or below the earnings threshold to determine protection under the BCEA.

Employer Risk

Failure by an employer to correctly determine which employees fall above or below the earnings threshold could result in the incorrect treatment of employees, including potentially unnecessarily paying higher overtime payments or restricting hours of work.

Link

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Interdictory relief during strike action (case law)

The Constitutional Court has determined that where interdictory relief is sought against a group of employees participating in strike action in circumstances of alleged unlawful conduct, there must be some evidence of a link between the employees and that alleged conduct.

Impact Date

1 March 2022

Employer Implications/Action Needed

The onus is on an employer seeking final interdictory relief to show a sufficient link to the unlawful conduct. Employers should therefore ensure that they keep suitable records, as far as is reasonably possible.

Employer Risk

Employers that fail to maintain suitable records risk losing the possibility of seeking a final interdict and/taking disciplinary action against employees participating in unlawful conduct.

Link

Dismissal based on vaccination status (case law)

The Commission for Conciliation, Mediation and Arbitration (CCMA) has found that an applicant’s dismissal was substantively fair in circumstances where the applicant refused to be vaccinated.

The employer implemented a mandatory vaccination policy. The reasons for implementing that policy included the applicant’s medical position and the nature of the work, which meant that all employees at the workplace worked in close proximity and could not work remotely. Based on these factors, the employer determined that it could not reasonably accommodate the applicant in the workplace in the event of a refusal to be vaccinated. The applicant refused to be vaccinated and was dismissed by WhatsApp message.

The CCMA found the applicant’s dismissal to be substantively fair. The respondent had sound and convincing reasons to implement a mandatory vaccination policy and the applicant had not given any legitimate reason for refusing to be vaccinated. The CCMA did however find that the applicant’s dismissal was procedurally unfair given the process that was used to effect the dismissal.

Impact Date

7 March 2022

Employer Implications/Action Needed

Each case will be judged on its own merits, but employers can generally implement and enforce a mandatory vaccination policy where there are legitimate grounds to do so. Employers must however consider whether employees who refuse to be vaccinated can be reasonably accommodated.

Employer Risk

Employers risk unfair dismissal claims if they are unable to demonstrate both substantive and procedural fairness regarding dismissals.

Link

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Workplace entry policy (case law)

The Labour Court dismissed an application seeking a declaration that the employer’s admission policy was unlawful. The applicants argued that the admission policy, which required the production of proof of vaccination, or a negative COVID-19 test result as a condition of accessing the workplace, was unlawful on the basis that it amounted to a unilateral change to the terms and conditions of the employees’ contracts of employment. The Labour Court found that the contracts of employment contained no provisions that were unilaterally changed and/or breached by the policy.

Impact Date

14 March 2022

Employer Implications/Action Needed

Workplace entry/admission policies which determine when and how employees can access the workplace do not necessarily equate to mandatory vaccination policies. Employers should however review any such policies to ensure that they do not contravene any contracts or legislation.

Employer Risk

Employers risk claims of breach of contract if they seek to unilaterally change contract terms.

Link

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Workplace harassment

A new Code of Good Practice on the Prevention and Elimination of Violence and Harassment in the Workplace (“the Code of good practice”) has been enacted. Its objective is to eliminate all forms of harassment in the workplace (including sexual violence and harassment; racial, ethnic and social origin violence and harassment; violence and harassment on the account of a protected disclosure (whistleblowing); and workplace bullying) and in any activity linked to, or arising out of, work. It further defines workplace bullying, cyberbullying, and sexual harassment and extends the definition of perpetrators and victims of harassment to non-employees, suspended workers, ex-employees, persons in training and “others having dealings with the organisation”.

The Code implements greater obligations on employers to prevent and eliminate violence and harassment in the workplace. This includes the development and implementation of policies, procedures and practices.

Impact Date

18 March 2022

Employer Implications/Action Needed

Employers should review and where necessary update their current workplace harassment policies and procedures, including providing information and training to employees. Employers should take account of the possibility of both workplace and cyber discrimination and bullying.

Employer Risk

Employers found guilty of allowing, or negligently permitting, harassment and/ or violence in the workplace will be liable to claims under the Employment Equity Act (“EEA”). Failure to take adequate steps to eliminate harassment within a reasonable time once an allegation of harassment by an employee has been submitted, will render the employer vicariously liable for the harassment.

Link

COVID-19 – New code of practice

Following the end of the National State of Disaster (announced on 4 April 2022), statutory measures on the control of COVID-19 in the workplace have ceased and are now regulated by a Code of Practice: Managing Exposure to SARS-COV-2 in the Workplace (2022) (“the Code”). The Code provides guidance for: conducting risk assessments; developing a plan to limit infection, transmission and mitigate the risks of serious illness or death; implementing the plan; and managing absence from work due to infection, isolation and adverse effect of vaccination.

Impact Date

5 April 2022

Employer Implications/Action Needed

Employers must continue to conduct risk assessments to assess the risk of exposure to COVID-19 and develop or amend plans that deal with (i) any measures in respect of the vaccination of employees; and (ii) any other protective measures. The Code refers to the ‘vaccination of employees’ in a general manner, and therefore allows employers to implement and justify the implementation of workplace vaccination policies. The Code also provides guidance on steps where an employer is notified by an employee of COVID-19 symptoms.

Employer Risk

The Code expressly permits employers to require employees to disclose their vaccination status, to produce vaccination certificates and requires employers to take measures to determine the vaccination status of their workers. The Code does not specifically refer to employees’ right to refuse mandatory vaccination but refers generally to the concept of reasonable accommodation if an employee refuses to be vaccinated. However, recent case law has demonstrated that a refusal to be vaccinated may amount to a fair dismissal if the refusal compromises the safety of the workplace and significantly impacts the working relationship between the employer and employee.

Link

Draft National Migration Policy and Employment Services Amendment Bill

The Minister of Employment and Labour has published a Draft Bill, for public comment, to provide the legal framework which regulates the employment and protection of foreign nationals. The Draft Bill would allow the Minister to: implement quotas for the employment of foreign nationals, either cross-sector, nationally, or within one or more regions in a sector; implement requirements on employers of foreign nationals to ensure their entitlement to work in South Africa and to perform work for which they are employed; protect foreign nationals from terms and conditions of employment that are not inferior; require the employers of foreign nationals to satisfy themselves that no other South African has the requisite skills; and recognise digital labor platforms as employers.

Impact Date

28 May 2022 (if unopposed in Parliament).

Employer Implications/Action Needed

Employers of foreign nationals should monitor the progress of the legislation. In the meantime, employers should take steps to ensure that foreign nationals have the requisite documentation to evidence the right to work in South Africa and that they are qualified for the work they are performing.

Employer Risk

The Draft Bill provides that any person who employs or engages an employee or worker in contravention of the Act may be liable for a fine. A claim may also be enforced on behalf of an employee or worker by a labor inspector or bargaining council agent.

Link

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Employment equity plans

The Employment Equity Amendment Bill, which seeks to eliminate current employment equity plans and impose sector-specific employment equity goals, has been passed by the Parliament’s National Assembly. The aim of the Bill is to ensure stricter regulation of employment equity plans.

Impact Date

September 2022

Employer Implications/Action Needed

Employers will no longer be able to rely on their existing employment equity plans and will need to ensure that new employment equity plans meet specified sectoral numerical targets.

Employer Risk

Employers who fail to comply with the Employment Equity Act, including any failure to prepare an employment equity plan that meets the required sectoral numerical targets, risk a fine. However, fines will usually be imposed only after certain enforcement measures have first been taken. Such enforcement measures include written undertakings and compliance orders.

Link

Contact:

Sandro Milo
Partner
+27 83 44 40 320
sandromilo@eversheds-sutherland.co.za

Angola

National Minimum Wage

The National minimum wage rates have increased. The rates have been increased to AOA 48,271.73 for the general trade and mining industry; AOA 40,226.44 for the transportation, services and transforming industries; and AOA 32,181.15 for the agriculture and economic activities not included in the other categories.

Impact Date

17 February 2022

Employer Implications/Action Needed

Employers should be aware of this change in the minimum wage and ensure compliance.

Employer Risk

Failure to comply may result in claims as well as administrative penalties.

Link

Teleworking Regime

A new decree regulates the remote working regime in Angola, including the form and content of remote work agreements and the use of information and communication technologies.

Impact Date

19 March 2022

Employer Implications/Action Needed

Employers should review and update any existing policies and procedures to ensure compliance with this change.

Employer Risk

Failure to comply may result in administrative penalties.

Link

Contact:

João Robles
Partner
Consultant in Luanda
Tel: +351 228 346 740
Mob: +351 962 368 278
JRobles@eversheds-sutherland.net

Mozambique

COVID-19 - Fines relief and reduction of interest

Temporary relief for fines and a reduction of interest related to social security contributions introduced in response to the pandemic have now ended.

Impact Date

12 May 2022

Employer Implications/Action Needed

Employers should ensure applications arising during the scheme are submitted promptly and should budget for the withdrawal of these measures.

Employer Risk

Late application could result in claims being rejected.

Link

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Contact:

João Couceiro
Partner
Tel: +351 213 587 500
Mob: +351 962 064 140
JCouceiro@eversheds-sutherland.net

Mauritius

Payment of special allowance to eligible employees

Regulations introduced at the start of the year provide for the payment of a special allowance to eligible employees by the Director General of the Mauritius Revenue Authority (“MRA”) during 2022.

Impact Date

1 January 2022 to 31 December 2022.

Employer Implications/Action Needed

The MRA may pay to a full time employee special allowance as follows:

  • a maximum of Rs 500 to an employee of a non-export enterprise to top up their monthly guaranteed income to Rs 11,075;
  • a maximum of Rs 1200 and an additional amount of Rs 140, being part of salary compensation for the year 2022 to a Mauritian employee of an export enterprise to top up their monthly guaranteed income to Rs 11,075;
  • a maximum of Rs 860 to a migrant worker of an export enterprise who was in employment as at 31 December 2019 bringing their monthly guaranteed income to Rs 10,735;
  • Rs 140, being part payment of salary compensation 2022 to a Mauritian employed on a full-time basis in an export enterprise and drawing a monthly basic wage or salary exceeding Rs 11,075 but not exceeding Rs 50,635 monthly.

The payment of the special allowance is subject to the following:

Where an employee has more than one full-time employment, they shall benefit from a special allowance only in respect of the employment from which they derive the highest basic salary.

Employer Risk

Failure to pay remuneration to a worker is an offence punishable by fine and/or a protective order may be entered against the employer.

Link

Non-access to specified institutions for non-vaccinated workers

Failure to demonstrate full vaccination status (as determined by regulation) has implications for absence and worker access to the workplace. Specific provision is also made in terms of pay during such periods.

Impact Date

10 February 2022

Employer Implications/Action Needed



  • Where a worker does not have access to their workplace and are absent from work, such absence shall be with pay and calculated against their paid sick leave, accumulated sick leave, annual leave or vacation leave entitlement or a combination of such leave.
  • Where the worker does not give their consent for absences to be deducted from their leave entitlement or where they have exhausted all of their leave entitlement, their absence shall be without pay.

Employers should ensure that records of its workers’ leave are up to date.

A list of Specified institutions has been set out under Schedule 5 of the Consolidated COVID-19 Regulations 2021.

Employer Risk

Non-adherence to these regulations may lead to sanctions under the Workers’ Rights Act 2019.

Links

COVID-19 – “Fully vaccinated status/booster dose”

Vaccination status remains important for various aspects of working life. The Ministry of Health and Wellness has reasserted that, for people to keep their “fully vaccinated” status, they will need to get a booster dose between 4 to 6 months after having been administered a second dose of vaccine or after having been administered one dose of “Johnson & Johnson” vaccine.

Impact Date

19 February 2022

Employer Implications/Action Needed

To have the “fully vaccinated” status, people will have to get a booster dose between 4 to 6 months after having been administered the second dose of vaccine or after having been administered one dose of “Johnson & Johnson” vaccine. This new amendment initially effective as from 15 January 2022 has been extended to 19 February 2022.

Although employers cannot force an employee to get vaccinated, in order to make sure they are not restricted to access some places in order to carry out their tasks, employers may encourage employees to abide by the new amendment.

Employer Risk

N/A

Link

Immigration – Isolation period for incoming migrant workers

Migrant workers travelling to Mauritius and who are fully vaccinated will not be required to undergo a seven (7) days isolation period.

Migrant workers who are not fully vaccinated will have to undergo seven (7) days isolation period as per protocol established by the Ministry.

Impact Date

11 March 2022

Employer Implications/Action Needed

Employers must ensure that migrant workers are informed of the new protocol before arriving in Mauritius.

‘Fully vaccinated’ for migrant workers means:

be fully vaccinated with 2 doses of a COVID-19 vaccine recognised by the Mauritian authorities. The 2nd dose, if applicable must have been administered 14 days before arrival. The migrant worker can only travel from day 15.

have an official documentation proving that one has already had COVID-19 and have had either 1 dose vaccination before contamination or have had a post-infection vaccination 14 days prior to travel (28 days for the Johnson & Johnson vaccine).

have received a single dose of Johnson & Johnson ‘Janssen’ vaccine at least 28 days before travel. The migrant worker can travel on day 29.

Employer Risk

Non-adherence to these regulations may lead to sanctions.

Link

COVID-19 – Restriction of access to specified places

These amendment to the COVID-19 Regulations extends the number of premises where access are restricted to vaccinated persons.

Impact Date

4 April 2022

Employer Implications/Action Needed

Under section 13 ‘Restriction of access’ of the Consolidated COVID-19 Regulations 2021, it is stated that no person shall have access to a specified institution, place or premises specified in the fifth schedule unless:

(a) Being a citizen or resident of Mauritius, they produce —

  • a COVID-19 vaccination card, in the form set out in the Sixth Schedule or in such electronic format as the Minister may approve, certifying that they have been fully vaccinated with booster dose; and their National Identity Card or passport;
  • in case they have not been vaccinated with a COVID-19 vaccine, an RT-PCR test result slip, in the form set out in the Seventh Schedule, certifying a negative result dating back to not more than 7 days from the date of the RT-PCR test was undertaken; and their National Identity Card or passport; or
  • a documented medical certificate (certificat médical détaillé), duly certified by a panel of 2 Government medical officers that, by reason of their medical conditions, they cannot be vaccinated with a COVID-19 vaccine; and their National Identity Card or passport;

(b) being a tourist or visitor to Mauritius, they produce —

  • a foreign COVID-19 vaccination card, including in electronic format; and their National Identity Card or passport.

Under the new amendment, the list of places with restricted access in the fifth schedule has been enlarged to include any building premises of the following institutions: -

Civil Status office (Any building premises of a Civil Status Office);

Registrar-General Department;

WasteWater Management Authority;

Corporate and Business Registration Department (Registrar of Companies);

Municipal and District Councils; - National Land Transport Authority;

Post Office;

Social Security Office;

National Empowerment Foundation; and - Mauritius Revenue Authority.

It is further provided that no person will be exempted except for those who have to avail the services of the concerned institution.

Employer Risk

Non-adherence to these regulations may lead to sanctions.

Link

Contact:

Yannick Fok
Partner
T: +230 211 0550
M: +230 5258 8398
yannickfok@eversheds-sutherland.mu

Kenya

Employee’s right to disconnect from work

The Employment (Amendment) Bill, 2021 [the ‘Bill’] proposes a right for employees to disconnect from work. It defines this right as an employee’s entitlement not to be contacted by the employer during out-of-work hours.

Impact Date

Unknown but expected in summer 2022.

Employer Implications/Action Needed

The Bill would require employers to put in place a policy (after consulting with its employees) addressing:

  • the circumstances in which an employer may contact an employee during out-of-work hours;
  • use of electronic devices to send or receive information, messages or any digital work-related communication during out-of-work hours; and
  • circumstances in which the right to disconnect may be waived.

Employer Risk

The Bill states that any employer who breaches the requirement to put a policy in place or breaches an employee’s right to disconnect as provided in the Bill will liable, on conviction, to a fine not exceeding five hundred thousand shillings (circa €4,000) or to imprisonment for a term not exceeding one year or to both.

Link

Contact:

Jeff Kinuthia
Partner
+25 47 18 26 86 83
jkinuthia@mman.co.ke

Africa Global Update Banner

China

Deferred retirement mechanism established in Jiangsu Province

The Department of Human Resources and Social Security of Jiangsu Province has released the Implementing Measures on Basic Pension Insurance of Enterprise Employees (江苏省企业职工基本养老保险实施办法, “Measures”). One key part of the Measures is the establishment of a deferred retirement mechanism. According to the Measures, upon (i) mutual agreement between the employee and the employer and (ii) filing with the local human resources and social security bureau, an employee who has reached the statutory retirement age (i.e. 60 years for male employees and 50/55 years for female employees) may apply for deferred retirement. The deferred period shall be no less than one year.

Impact Date

1 March 2022

Employer Implications/Action Needed

Employees based in Jiangsu Province may apply for deferred retirement subject to the consent of the employer.

Employer Risk

N/A

Link

The Measures for Administrative Supervision of Social Insurance Fund has been revised

The PRC Ministry of Human Resources and Social Security has released the revised Measures for Administrative Supervision of Social Insurance Fund (社会保险基金行政监督办法) (“Revised Regulation”). The Revised Regulation specifically prohibits fabricating the conditions for participating in social insurance and fraudulently obtaining social insurance benefits by means of fabricating personal information and employment relations.

Impact Date

18 March 2022

Employer Implications/Action Needed

Under PRC law, an employer pays social insurance contributions for its employee in the place where the employer is legally registered. In practice, however, certain employers would like some of their employees to perform their work in a place where it does not have a registered entity (“Actual Work Place”). In such cases, these employees would have their social insurance locally contributed. To achieve this, it is common practice for the employer to engage a local third party HR agent (e.g. FESCO, CIIC) in the Actual Work Place to contribute social insurance for the employee locally (“Common Approach”). Under the Common Approach, the employee's social insurance will be contributed under the name of the HR agent instead of the actual employer, notwithstanding the absence of any actual employment relationship between the HR agent and the employee. According to the Revised Regulation, there is a high risk that the Common Approach may be deemed a fraudulent behaviour. The local government may likely impose restrictions on this approach.

Employer Risk

If the Common Approach becomes infeasible in the Actual Work Place, the employer may have to resort to other solutions to maintain the employment relationship with employees who are based in the Actual Work Place.

Link

Private pension plans

The General Office of the State Council issued its Opinion on Promoting the Development of Personal Pensions (关于推动个人养老金发展的意见), to allow eligible individuals to make voluntary contributions into a private pension account and invest their pensions in stable financial products. All individuals who have been participating in the basic pension insurance plan for employees or for urban and rural residents are eligible to participate in the private pension plan. Under the plan, individuals can make annual contributions of up to RMB 12,000 into a pension account set up through a centralized platform. Individuals participating in the private pension plan may collect private pensions on a monthly basis or in a lump sum after certain statutory circumstances have been satisfied (e.g. reaching the statutory age for pension collection, having completely lost their labor ability, going abroad for settlement).

Impact Date

8 April 2022

Employer Implications/Action Needed

N/A

Employer Risk

N/A

Link

Social Insurance Allowance in Jiangsu Province

The Department of Human Resources and Social Insurance of Jiangsu Province and other related local authorities have jointly issued a Notice of Relevant Matters on Social Insurance Allowance Payable to Enterprises during Maternity Leave (关于产假期间企业社会保险补贴有关项的通知, the “Notice”). Enterprises that pay social insurance contributions for their employees during their maternity leave and who gave birth to their second or third child on or after 10 February 2022 are entitled to a monthly social insurance allowance. Such allowance is 50% (for employees who gave birth to their second child) or 80% (for employees who gave birth to their third child) of the employer’s portion of the social insurance contributions actually paid for such employees during the maternity leave, payable up to 6 months commencing from the month of birth.

Impact Date

11 May 2022

Employer Implications/Action Needed

Eligible enterprises in Jiangsu Province may apply to the local human resources and social security bureau for the social insurance allowance, subject to providing the required application documents.

Employer Risk

N/A

Link

Contact:

Jack Cai
Partner
+86 21 61 37 10 07
jackcai@eversheds-sutherland.com

Singapore

Mandatory Primary Care Plan

Employers will now be required to purchase a Primary Care Plan (“PCP”) as part of the work pass requirements for Work Permit and S-Pass Holders who live in dormitories, or who work in the Construction, Marine Shipyard and Process (“CMP”) sectors. The PCP will provide quality, accessible and affordable primary care to migrant workers and aims to reduce the strain on the public healthcare system. A PCP is optional for Work Permit or S-Pass holders who live in the community and work in a non-CMP sector.

Impact Date

1 April 2022

Employer Implications/Action Needed

Employers must declare that they have purchased the PCP for any eligible migrant worker before a work pass can be issued. Employers will also have to ensure that all eligible existing migrant workers have a valid PCP by 31 March 2023, even if their work passes are due for renewal after that date.

Employer Risk

Employers who do not comply with the new requirement risk enforcement action under the Employment of Foreign Manpower Act 1990.

Link

Minimum retirement and re-employment ages

The minimum statutory retirement and re-employment ages will increase. The minimum statutory retirement age will increase from 62 to 63 years and the re-employment age will increase from 67 to 68 years. The Singapore Government intends to progressively raise the minimum statutory retirement and re-employment ages to 65 and 70 respectively by 2030.

Impact Date

1 July 2022

Employer Implications/Action Needed

Employers are required to offer re-employment to eligible employees from the statutory retirement age to the statutory re-employment age. Employers should therefore review their retirement and re-employment policies to take account of the increased ages once they come into force.

Employer Risk

N/A

Link

Minimum qualifying salary for Employment Pass/S-Pass applications

The minimum qualifying salary for new Employment Pass (“EP”) applications will increase to S$5,000 (currently S$4,500) / S$5,500 in the financial services sector (currently S$5,000). The minimum qualifying salary for new S-Pass applications will go up to S$3,000 (currently) S$2,500 / S$3,500 in the financial services sector (currently S$3,000).

The qualifying salary will continue to increase progressively with age. The minimum qualifying salary for EP applicants in their mid-40s increases to S$10,500 (S$11,500 for those in the financial services sector). The minimum qualifying salary for S-Pass applicants in their mid-40s increases up to S$4,500 (S$5,500 for those in the financial services sector).

Impact Date

1 September 2022 (new EP/S-Pass applications); 1 September 2023 (renewal EP/S-Pass applications).

Employer Implications/Action Needed

Employers should use the Self-Assessment Tool (“SAT”) on the Ministry of Manpower’s website to assess if their candidates will meet the new qualifying salary. The SAT will be updated by August 2022.

Employer Risk

N/A

Link

Enhanced medical insurance coverage

The Ministry of Manpower (MOM) will enhance the mandatory medical insurance (“MI”) for Work Permit and S-Pass holders. The MI enhanced coverage will include features such as co-payments for employers and insurers and age-differentiated premiums. Additionally, there will be a standardisation of allowable exclusion clauses and a requirement for insurers to reimburse hospitals directly. The aim of the reform is to give employers increased protection against large unexpected medical bills incurred by their migrant workforce.

Impact Date

By the end of 2022.

Employer Implications/Action Needed

Employers should engage their respective insurers early to ensure that they will be able to offer products that will meet the MOM’s new requirements. Otherwise, employers may need to look for another insurer that will be able to do so.

Employer Risk

Employers who fail to purchase or maintain the required MI will be in contravention of the conditions of a work pass under the Employment of Foreign Manpower (Work Passes) Regulations 2012 and risk fines of $10,000, or imprisonment for up to 1 year, or both.

Link

Codification of fair employment guidelines

With the aim of further protecting workers against discrimination, the Singapore Government has proposed that the Tripartite Alliance for Fair and Progressive Employment Practices (“TAFEP”) guidelines will be enshrined into law. Additionally, a tribunal (similar to the Employment Claims Tribunal) will be created to deal with workplace discrimination. The proposed legislation is awaited.

Impact Date

Awaited.

Employer Implications/Action Needed

Employers are likely to be expected to put in place procedures to deal with complaints or reports of discrimination, including steps to protect the confidentiality of complainants and prevent retaliation. Employers should start preparing for the proposed legislation by reviewing their workplace discrimination practices and policies for compliance with the TAFEP guidelines.

Employer Risk

N/A

Link

  • N/A

Contact:

Sze-hui Goh
Partner
T: +65 6637 8883
sze-huigoh@gtlaw-llc.com

Hong Kong

COVID-19 – Vaccine Pass

The government has introduced a vaccine pass requirement. This requires anyone entering certain premises, including restaurants, shopping malls, supermarkets and department stores, to be vaccinated unless exempt. The Secretary for Food and Health may also issue directions to require persons to be vaccinated before entering, boarding or remaining in a place listed as an “Affected Premises”.

Impact Date

24 February 2022

Employer Implications/Action Needed

The vaccination requirement applies to all persons entering any Affected Premises, including employees, customers and contractors. Employers operating Affected Premises must ensure that all employees possess the necessary vaccination status by examining and retaining a copy of the vaccination records of the employees. The only exemption is if the employee possesses a specified medical certificate.

Employer Risk

The person in charge of any Affected Premises may be liable to a criminal offence with a maximum fine of HK$50,000 and 6 months imprisonment in the event of any failure to ensure compliance with the vaccination requirement for employees entering the workplace. Any person who enters or remains at any Affected Premises (including employees) who does not meet the vaccination pass requirement (unless exempt) is similarly liable to a criminal offence with a maximum fine of HK$10,000.

Link

Gradual increase of statutory holidays in 2022

The Employment (Amendment) Ordinance 2021 (“Amendment Ordinance”) increases the number of statutory holidays in Hong Kong progressively from 12 to 17 days by 2030. The first statutory holiday to be added to the statutory holiday calendar is the Birthday of the Buddha on 8 May 2022, being the eighth day of the fourth lunar month, followed by the first weekday after Christmas Day (i.e. Boxing Day) (from 2024), Easter Monday (from 2026), Good Friday (from 2028), and the day following Good Friday (from 2030).

Impact Date

8 May 2022

Employer Implications/Action Needed

Employers should review leave policies to ensure that all employees are granted at least the minimum amount of statutory holidays.

Employer Risk

N/A

Link

Employment Support Scheme 2022

The new Employment Support Scheme (“ESS 2022”) provides financial support to workers by providing their employers with three months of wage subsidies. It aims to help employers retain employees who may otherwise have been made redundant and is more focused on helping small and medium enterprises (SMEs).

Each eligible worker with a monthly salary of HK$8,000 or above will receive a subsidy of HK$24,000 over a three-month period. While there is no salary cap, the number of eligible employees from each employer will be capped at 1,000. Employers may choose to calculate the number of their employees based on employee data in the fourth quarter of 2021. Some employers are ineligible to receive the subsidies (including publicly funded organizations) and some, such as supermarkets, pharmacies and delivery firms which have not been negatively impacted by the pandemic, may only claim subsidies for a maximum of 100 employees. Employees with a lower monthly salary and the self-employed may also be eligible for ESS 2022 payments at a different rate.

Impact Date

May to July 2022.

Employer Implications/Action Needed

Employers who wish to participate in the ESS 2022 must undertake and warrant that:

  • they will not exceed the employee headcount above the approved level for which the ESS 2022 subsidies have been paid; and
  • they will only spend the wage subsidies on paying wages to their employees who are the intended beneficiaries of the ESS 2022.

Employer Risk

N/A

Link

Abolition of pension offsetting arrangement

The Hong Kong government has published proposed new legislation which will abolish the use of accrued benefits of employers’ mandatory pension contributions to offset statutory severance and long service payments.

Impact Date

2025

Employer Implications/Action Needed

The abolition of the pension offsetting arrangement will affect only employees who are currently covered by the Mandatory Providence Fund legislation. This means that it will not affect workers such as domestic helpers or those who are under other statutory retirement schemes. If the legislation is enacted, employers will need to keep wage and employment records of their employees for the 12 months (or a shorter period if the employee has worked less than 12 months) immediately prior to the transition date.

Employer Risk

It is anticipated that more labor disputes between employees and employers over statutory severance/long service payment claims will arise after the abolition of the offsetting arrangement takes effect.

Link

Employment changes due to COVID-19 policy

A new Bill provides clarity on certain employment issues caused by the government’s Covid policy. It includes provision for a valid dismissal for employees who refuse to be vaccinated, subject to conditions, and expanding the definition of a “sickness day” to include absence from work due to compliance with COVID-19 measures.

Impact Date

Awaiting a timeframe for the Bill to come into force (it will not provide for retrospective effect). The Bill also provides that the amendments will be repealed when the pandemic is under control and vaccination is no longer a matter of grave public health concern.

Employer Implications/Action Needed

Employers will need to be prepared to pay sickness allowance at the rate of 4/5 of the employee’s daily average wages for an employee who is absent due to compliance with COVID-19 restriction measures, upon satisfaction of the relevant criteria.

Employer Risk

If an employer terminates the contract of an employee who is absent from work due to compliance with COVID-19 measures, an employer is liable to prosecution, and, upon conviction, to a fine of HK$100,000, in addition to paying the dismissed employee the compensation he/she is entitled to.

Links

Contact:

Yonah Leung
Senior Associate
+852 2186 4952
yonahleung@eversheds-sutherland.com

Indonesia

“JHT Program” amendments – Old-age benefits

The JHT Program is a mandatory old-age social security program held by the government. Previously, the fund under the JHT Program could be disbursed in the event of the termination of employment or resignation of an employee. However, the Minister of Manpower has issued a regulation stating that the fund can now only be disbursed in whole when an employee reaches the age of 56. This has provoked controversy and a claim has been filed with the Supreme Court to revoke the regulation.

Impact Date

2 February 2022

Employer Implications/Action Needed

Since the JHT Program is held by the government, there is no action needed by employers. Employers should however monitor the progress of the Supreme Court decision, which is expected within 6 months.

Employer Risk

N/A

Link

Contact:

Jack Cai
Partner
+862161371007
jackcai@eversheds-sutherland.com

Malaysia

Paternity leave

A Bill has been submitted to give male employees a minimum statutory period of paternity leave of 3 days.

Impact Date

Awaited.

Employer Implications/Action Needed

Employers should monitor the progress of the Bill. Once enacted, employers should ensure that they provide paid paternity leave to qualifying male employees.

Employer Risk

Employers should seek to mitigate any risk of potential disruption to operations as a result of employees taking leave by ensuring clear leave policies.

Link

Maternity leave

A Bill has been submitted to increase the statutory maternity leave from 60 to 90 days. The Bill also proposes to restrict this statutory protection to female employees covered by the scope of the Employment Act 1955 only (i.e. those who earn RM2,000.00 a month and/or perform/supervise manual labor).

Impact Date

Awaited.

Employer Implications/Action Needed

Employers should monitor the progress of the Bill. Once enacted, employers should ensure that they provide extended paid maternity leave to their qualifying employees.

Employer Risk

Employers should seek to mitigate any risk of potential disruption to operations as a result of employees taking leave by ensuring clear leave policies.

Link

Contact:

Jack Cai
Partner
+862161371007
jackcai@eversheds-sutherland.com

Europe Global Update Banner

Austria

COVID-19 – Mandatory vaccination

The COVID-19 Vaccination Act (COVID-19-Impfpflichtgesetz) requires all persons over 18 years residing in Austria to have a COVID-19 vaccination. However, the following groups are exempt from the requirement:

  • pregnant women;
  • persons who cannot be vaccinated without concrete and serious danger to life or health;
  • persons who are not expected to develop an immune response to vaccination due to medical reasons;
  • persons who, after repeated vaccination, have not developed an immune response to vaccination; and
  • persons who have been recovered from a COVID-19 infection for a period of 180 days.

People without a valid vaccination certificate face charges. Fines may be up to €3,600.

Impact Date

5 February 2022, however, it has now been temporarily suspended.

Employer Implications/Action Needed

At present, the COVID-19 Vaccination Act does not affect the workplace and there is currently no need for employers to take action.

Employer Risk

N/A

Link

Holiday pay (case law)

When the employment relationship is terminated, the employee is generally entitled to receive full pay for their accrued but untaken holiday from previous years, and pro-rata pay for the current year. However, under local law, the employee loses this entitlement to compensation if they leave the company prematurely without good cause. Following the ruling of the EU Court of Justice (C-233/20), the loss of this entitlement breaches EU law. This only affects the minimum holiday entitlement of four weeks guaranteed under EU law; compensation for the additional local entitlement is not required.

Impact Date

17 February 2022

Employer Implications/Action Needed

Where an employee leaves the company prematurely without good cause, the employer must not apply local law to the four weeks’ holiday entitlement under EU law. However, the employer is not required to offer financial compensation for any entitlement exceeding these four weeks. Employers should always review the employee’s payroll arrangements particularly carefully in the event of premature termination without good cause.

Employer Risk

If the employer fails to comply with EU case law, the employee may claim financial compensation for the minimum EU holiday entitlement of four weeks in arrears.

Link

Employment of Ukrainian refugees

A new Ordinance has been implemented to give certain refugees a temporary right of residence in Austria. The Ordinance applies to:

  • Ukrainian citizens whose place of residence is in Ukraine and who have been expelled from the country since 24 February 2022 due to the armed conflict;
  • other third-country nationals or stateless persons with an international protection status or comparable national protection status granted before 24 February 2022 (in each case in accordance with Ukrainian law) who have been expelled from Ukraine since 24 February 2022 due to the armed conflict, and
  • family members of the above individuals.

Such individuals that gain a right of residence will also receive an employment permit, without needing to go through the usual labor market/substitute procedure (Arbeitsmarkt-/Ersatzkraftverfahren).

Impact Date

11 March 2022

Employer Implications/Action Needed

A job platform has been created to help Ukrainian refugees find employment and to facilitate the process of employing Ukrainian refugees (see link below). Interested employers may wish to subscribe.

Employer Risk

N/A

Links

Reduction of employee’s health insurance contribution payments

Employees must pay a monthly statutory health insurance contribution. The amount of that contribution is to be reduced in accordance with a legally-defined scale, based on the monthly contribution base (e.g. a reduced 2.37% contribution will apply to salaries between €1,000.01 and €1,800.00). The statutory health insurance contribution rate continues to apply at an unchanged level (3.87%). The difference between the reduced contribution amount paid and the health insurance contribution rate is to be funded through a payment by the federal government.

Impact Date

1 July 2022

Employer Implications/Action Needed

Employers may need to liaise with payroll and communicate the change to their employees.

Employer Risk

If too much health insurance contribution has been paid, the employee may request a refund.

Link

Wage and income tax

Wage and income tax is to be reduced as follows:

  • 2nd tax level: from 35% to 30% from 1 July 2022.
  • 3rd tax level: from 43% to 40% from 1 July 2023.

Impact Date

1 July 2022 / 1 July 2023

Employer Implications/Action Needed

Employers should review their payroll arrangements to ensure that the new rates are reflected once they come into force.

Employer Risk

If the employer has paid too little wage tax, it will be ordered by the tax office to pay the wage tax in arrears. If too much wage tax has been paid, the employee may request a refund.

Link

Contact:

Silva Palzer
Partner
+43 15 16 20 12 5
silva.palzer@eversheds-sutherland.at

Belgium

Banning the wearing of philosophical symbols in the private sector (case law)

The Liège Labour Court has applied recent EU case law and decided that a private company prohibiting the wearing of philosophical symbols need not necessarily be limited to staff in contact with the public or to managerial staff. It can apply to all staff if it can be shown to be necessary in order to maintain social peace.

Impact Date

20 December 2021

Employer Implications/Action Needed

The decision applies EU case law on lawful justifications related to the internal life of the company, such as preservation of social cohesion, as a legitimate reason allowing for the justification of indirect discrimination.

Employer Risk

Risk of indirect discrimination.

Link

Workplace victimisation

Legislation has strengthened protection against reprisals in cases of discrimination in the workplace. Anyone who supports a victim of discrimination in the workplace, including those who advise or defend the victim, will enjoy the same protection as the victim. In addition, the complaints procedure is greatly simplified. Legislation has removed many formalities, so that protection can be provided more quickly and effectively.

Impact Date

27 January 2022

Employer Implications/Action Needed

N/A

Employer Risk

Failure to adhere to the new strengthened protections risks criminal and social law sanctions.

Link

Clarification of the concept of reasonable accommodation (case law)

The Court has clarified that where an employee becomes definitively unfit for their job due to the onset of a disability, reassignment to another position is likely to be an appropriate measure in the context of "reasonable accommodation" (provided that such a measure does not impose a disproportionate burden on the employer). Certain factors are considered in terms of the proportionality of the burden, including the financial costs involved, the size and financial resources of the organisation or undertaking and the possibility of obtaining public funding or other assistance.

Impact Date

10 February 2022

Employer Implications/Action Needed

The potential to reintegrate incapacitated employees is winning ground. It is therefore important for employers to be able to manage and draft reintegration plans quickly, where employees become unfit for their role due a disability.

Employer Risk

Failure to make a reasonable accommodation where required by the circumstances risks a finding of discrimination and the award of compensation.

Link

Ending certain COVID-19 telework arrangements

The legal framework of CLA n° 149 regarding corona telework has not been extended beyond 31 March 2022.

Impact Date

31 March 2022

Employer Implications/Action Needed

The lump sum awarded under CLA n° 149 no longer applies and regular telework indemnities have effect.

Employer Risk

The employer might create a custom if it does not cease granting a lump sum. As such, it is better to amend the lump sum and introduce a system based on the normal rules of telework.

Link

Minimum wage

The current age and length of service conditions for the Minimum Average Monthly Guaranteed Income (MAGI) have ceased to apply, resulting in only one minimum wage in force for all workers from the age of 18. The average monthly guaranteed minimum wage (Revenu Minimum Mensuel Moyen Garanti (RMMMG)) is also increased from €1,625.72 to €1,806.16.

Impact Date

April 2022

Employer Implications/Action Needed

Employers should review and, where necessary, update pay arrangements to ensure that they provide employees with at least the statutory guaranteed minimum wage.

Employer Risk

Failure to comply with the minimum wage requirements risks criminal and social law sanctions.

Links

Contact:

Stefan Corbanie
Partner
+32 2 73 79 35 1
stefancorbanie@eversheds-sutherland.be

Céline Wauters
Partner
+32 2 737 93 44
celinewauters@eversheds-sutherland.be

Czech Republic

Ukraine

As a result of the current conflict, there has been a large increase in Ukrainians in the Czech Republic. A series of new laws have been adopted to address the granting of residence permits to refugees (so-called temporary protection) and to provide access to the labor market. Ukrainians with temporary protection now have access to the labor market, where they can be directly employed without having to go through another process and obtain a work permit.

Impact Date

21 March 2022

Employer Implications/Action Needed

The employer can enter into an employment contract directly with the refugees. The employer is still required to report such new employees to the Labour Office and the employee must undergo a medical examination.

Employer Risk

Temporary protection and the associated benefits (access to the labor market) can only be granted in one EU country. A Ukrainian with temporary protection from another country cannot be directly employed in the Czech Republic.

Links

New form - Notice of commencement/termination of employment

The Czech Social Security Administration has issued a new form for the notification of commencement and termination of employment. In addition, the following new information must be reported at the end of employment:

  • period of pension insurance
  • the average or probable monthly net earnings
  • the amount of entitlement to severance pay or redundancy pay, including whether it has been paid
  • the manner and reason for termination of employment

Impact Date

1 April 2022

Employer Implications/Action Needed

If a new employee starts or terminates employment, the employer must use the new form to notify the Czech Social Security Administration.

Employer Risk

In the event of failure to properly notify the Czech Social Security Administration, the employer risks a fine of up to CZK 20,000.

Link

Conclusion of employment contracts (case law)

The Supreme Court has held that contracts between the employers and employees (e.g., employment or termination contracts) can be executed electronically without the specific formalities in the Labour Code (e.g. signed using qualified electronic signature) and still be valid and binding.

Impact Date

27 April 2022

Employer Implications/Action Needed

No action needed.

Employer Risk

Although formalities such as the use of a qualified electronic signature as specified by the Labour Code may not be required for electronic contracts between the employer and the employee, it’s still recommended to use a wet signature and personal delivery until this is clarified or there is explicit legal regulation.

Link

Contact:

Radek Matouš
Managing Attorney
+420 255 706 500
radek.matous@eversheds-sutherland.cz

Denmark

Updated LGBTI rights in the labor market

LGBTI legal rights in the labor market have been updated, including protecting the criteria of gender identity, gender expression and gender characteristics in the same way as criteria such as ethnicity, race, sexual orientation etc.

Impact Date

1 January 2022

Employer Implications/Action Needed

Employers should review existing non-discrimination policies to identify and update any gaps in protection.

Employer Risk

Employers with discriminatory practices, including for example the termination of an employee’s employment due to gender identity, risk liability and the payment of compensation. The amount of compensation will depend on the type of discrimination, from DKK 10,000 up to 12 months’ salary.

Link

  • N/A
New work environment rules on remote working and establishment of home office

The rules on remote working have been revised. The new rules are relevant for employees utilizing a computer screen while working from home. Previously, an employer must provide equipment for employees working from home if the employee, on average, works remotely once per week. This requirement has been changed to an average of two days per week, thus providing more flexibility regarding remote working.

Impact Date

30 April 2022

Employer Implications/Action Needed

Employers should review existing policies on remote working.

Employer Risk

N/A

Link

  • N/A
Equalising leave for parents in connection with childbirth

Legislation is providing for a more equal distribution of leave following the birth of a child between men and women by earmarking a term of parental leave with benefits for each parent. The new Act introduces a 24/24 model which means that each parent is entitled to 24 weeks of leave after the birth. Of these 24 weeks, 11 weeks are earmarked to each parent and 13 weeks may be transferred to the other parent.

Single parents are given the opportunity to transfer part of their leave to a close family member (social parents). Single fathers are equated with single mothers, so both can take up to 46 weeks of leave. LGBT+ families are given the opportunity to divide the leave between up to four parents.

Impact Date

The new scheme is expected to take effect on 2 August 2022. However, the transfer of leave to a family member is expected to take effect on 1 January 2024.

Employer Implications/Action Needed

Employers should review existing family leave policies to ensure compliance with the new scheme once it becomes effective.

Employer Risk

N/A

Link

  • N/A
Transparent and predictable working conditions

Legislation to implement an EU Directive is being introduced on transparent and predictable working conditions for employees. The Directive adjusts the concept of employee, expands the scope of covered employees, changes the timescale for providing written information to the employee, lists more working conditions that must be disclosed as a minimum and sets new minimum requirements for several working conditions (for further information, read our EU update).

Impact Date

The Act is expected to enter into force on 1 January 2023.

Employer Implications/Action Needed

N/A

Employer Risk

It is expected that the penalty for non-compliance will be a fine.

Link

  • N/A

Contact:

Anne Marie Abrahamson
Partner
+45 35 25 28 58
AMA@Lundgrens.dk

Estonia

Changes to family leave

A number of changes have been made to different forms of family-related leave, including:

  • “Pregnancy and maternity leave'' is narrowed to ''maternity leave'', with the leave shortened from 140 days to 100 days and a requirement for a certificate issued under Family Benefits Act added. Maternity leave must start not less than 70 days before the estimated date of birth, otherwise the leave is shortened by the respective period. If a child is born more than 70 days before the estimated date of birth, the leave starts from the date of birth.
  • Parents adopting a child are given the right to 70 days’ leave within a period of six months, in durations of at least 7 days in length. The right arises upon signing a foster parent contract and must be notified to the employer 30 days in advance. The right is not extended to the spouse or married partner of the child's biological parent.
  • Parents of a child under the age of 3 years have the right to parental leave (previously child care leave). The right is extended to parents if their child is stillborn or dies within 30 days of birth, who have the right to take up to 30 days’ leave from the date of death.
  • Parents of a child under the age of 14 years have the right to child leave of 14 days each year (in the case of one deceased parent or no registered father) and in the case of several children up to 30 days per year.
  • Parents of disabled children have the right to additional leave of one working day each month until the child turns 18.

Impact Date

1 April 2022

Employer Implications/Action Needed

Employer must be ready to provide the leave prescribed to parents if such a request is made.

Employer Risk

Cancellation of an employment contract without legal basis or cancellation performed in conflict with the law is void. Employer shall on the decision of a court or labor dispute committee pay the employee 3 months average wage (in the case of pregnancy or maternity leave twelve months) as compensation.

Link

  • N/A
Requesting family leave

Employees have to request maternity, paternity, adoptive and child leave (including child leave for parents of a disabled child) through the Social Insurance Board, which then notifies the employer of the request according to Family Benefits Act. However, if a child dies within 70 days of birth, the father has the right to paternity leave of 30 days, no matter if he has already exercised his right for paternity leave. In any other case the employee needs to notify the employer 30 days prior to starting paternity leave.

Impact Date

1 April 2022

Employer Implications/Action Needed

The communication for the leaves specified above is done through the Social Insurance Board.

Employer Risk

N/A

Links

Flexible working for parents or carers

An employee caring for at least one child, under 8-years-old, or for a person requiring considerable care, have the right to ask for flexible and more suitable working conditions, for example a temporary right to work remotely or at suitable hours.

Impact Date

1 April 2022

Employer Implications/Action Needed

Employer must consider the request and must provide sufficient reasons for declining.

Employer Risk

Cancellation of an employment contract without legal basis or cancellation performed in conflict with the law is void.

Link

Restrictions on terminating an employment contract during family leave

An employment contract can not be terminated if the employee is on paternity, adoption, parental, care or child leave (including leave for parents of disabled child and unpaid child leave). The same applies for employees who have requested flexible working conditions under Gender Equality Act.

Impact Date

1 April 2022

Employer Implications/Action Needed

The employer must prove that the reason for the cancellation of the contract is not in breach of the Act.

Employer Risk

Cancellation of an employment contract without legal basis or cancellation performed in conflict with the law is void. Employer shall on the decision of a court or labor dispute committee pay the employee three months average wage (in the case of pregnancy or maternity leave 12 months) as compensation.

Link

  • N/A
Change in the procedure for calculating family leave and average salary

Employers have the right to ask for documents that prove employees' right to family leave as well as for the flexible working capacity.

Impact Date

1 April 2022

Employer Implications/Action Needed

Employers can in the events specified ask for documents that prove the right for additional leave.

Employer Risk

N/A

Link

  • N/A
Employment agreement content and probationary periods

A change to the Estonian Employment Contracts Act is planned, to extend the requirement for certain details to be included, including information about applicable taxes and training to be provided by the employer. In addition, a further amendment of the Act will allow for probationary periods to be suspended during a period where an employee is unable to perform their duties. The probationary period may be extended to take account of the period of suspension.

Impact Date

By 1 August 2022 (to be confirmed).

Employer Implications/Action Needed

Employers should monitor the progress of the legislation and amend employment contracts, internal documentation and probationary arrangements to reflect the changes once in force.

Employer Risk

Employers that fail to inform employees about the extended details required in accordance with the amended Act risk a penalty of €32,000.

Link

Labor migration

A reform propose more flexible conditions for migrants to take up work in Estonia and simplifies the inclusion of Ukrainian war refugees in the labor market. For example, the reform would reduce the disparity between the minimum pay requirements of non-EU and EU nationals to promote equal opportunity in the hiring process.

Impact Date

1 January 2023 (to be confirmed).

Employer Implications/Action Needed

Once in force, employers should amend employment contracts and internal documentation to reflect the changes.

Employer Risk

Employers that breach the conditions of employment for alien workers, or pay alien workers less remuneration than the law permits, risk a penalty of €32,000.

Links

Variable hours agreement pilot

Under this pilot project, employers may apply variable hours in addition to the employee’s part-time working obligation for up to 8 hours per week, providing that working time does not exceed full-time working hours.

Impact Date

It will continue until 14 June 2024 at the latest.

Employer Implications/Action Needed

There is no obligation on employers to enter into variable hours agreements, however if they do, they should ensure that appropriate procedures are in place to ensure compliance with the working time and rest regulation under the Employment Contracts Act.

Employer Risk

If the applicable conditions are not followed, the agreement will be deemed invalid.

Link

  • N/A

Contact:

Tambet Toomela
Partner
T: + 372 622 9990
tambet.toomela@eversheds-sutherland.ee

EU

Whistleblowing directive in force

A directive provides EU-wide standards to protect workplace whistleblowers who reveal breaches of EU law in a wide range of areas.

Impact Date

December 2021-December 2023 (for some small employers).

Employer Implications/Action Needed

MSs had until 17 December 2021 to transpose the directive into national law (MSs may opt to delay the establishment of internal channels for some small private sector employers with 50-249 workers). However, some MSs have yet to take implementing action.

Employer Risk

The directive makes it more important than ever for in-scope employers to have set up effective, well-organized and trusted whistleblowing procedures. Check local laws as some MSs are differing in their approach to implementation.

Link

Laws on casual workers and work-life balance due for implementation

Member States (MSs) are implementing two directives: on predictable working conditions and work-life balance. The first updates rules on the information to be provided to workers concerning their working conditions, provides rights to request ‘more predictable and secure working conditions’ and to refuse a work assignment outside previously defined reference hours/days without suffering adverse consequences, and more. The second sets minimum requirements for family-related leave (paternity, parental, carer) and flexible working arrangements.

Impact Date

Both directives should be implemented locally in or before August 2022.

Employer Implications/Action Needed

All employers should expect to change their current practices relating to the provision of written statements to employees upon commencing work. Paternity, parental and carers and flexible working policies should be reviewed as national laws are amended to implement the minimum rights under the work-life balance directive.

Employer Risk

It will be for each individual MS to decide how rights under the directives should be enforced and what the legal sanctions should be for non-compliance. Whatever the legal consequences, there will also be reputational risks for defaulters.

Link

  • N/A
Significant gender / equal pay draft directive

Reflecting an ongoing gender pay gap, the EU has proposed a directive to strengthen equal pay between men and women workers through new pay transparency and enforcement mechanisms. The institutions of the EU must first agree the Directive, possibly over the next twelve months, before MSs have two years to implement it locally.

Impact Date

2022-2024

Employer Implications/Action Needed

If agreed by the EU, employers would need to prepare for: greater pay transparency (including a requirement to provide initial salary information to job applicants; a duty to respond to worker requests for pay data and for larger employers to report gender pay gaps and to act on unjustified inequalities over a certain threshold in cooperation with workers’ representatives); a prohibition on pay history questions at recruitment; and, a greater focus on enforcement, including a three year minimum limitation period and increased penalties.

Employer Risk

If agreed and subject to the standards set by the directive, it will be for each individual MS to decide how rights should be implemented locally - it will be a significant change in some jurisdictions. The directive is currently drafted widely in terms of pay (to include a broad concept of remuneration) and scope (to include workers as defined in the EU) and contains measures to protect privacy. Whatever the legal consequences, there will also be reputational risks for employers as well as the threat of being denied public contracts (the directive proposes making equal pay compliance a condition in public contracts).

Link

  • N/A
Corporate sustainability due diligence directive

A draft directive aims to enact due diligence and directors' duties in relation to the environment and human rights. It is estimated that about 13000 EU companies and 4000 non-EU companies are within the proposed scope of the Directive.

Impact Date

2022-2024

Employer Implications/Action Needed

If agreed, companies would have to integrate due diligence into their policies and take appropriate measures to identify, prevent, mitigate, bring to an end or minimize actual or potential adverse impacts (including by the payment of damages) arising from their own operations, their subsidiaries and, where related to their value chains, from their established business relationships.

Employer Risk

If implemented, the extensive due diligence duties (for those companies in scope) would necessitate leadership, training, resourcing, investment, procurement changes and capability-building. The proposals also aim to link directors’ pay and duties, and the company’s strategy, to climate change and sustainability interests.

Link

Draft directive regulating platform work and new guidelines on collective bargaining and the self-employed

A draft directive proposes the introduction of a rebuttable employment presumption for platform workers and greater rights regarding decision making by algorithms (whether employed or not). Draft guidance also seeks to remove EU competition law restrictions on collective bargaining for certain self-employed persons who provide personal labor services similar to a worker.

Impact Date

2022-2024

Employer Implications/Action Needed

No immediate action is required as both the EU Parliament and Council must agree the proposals before they are adopted. As such, they may be subject to change and platform employers should monitor progress as they develop.

Employer Risk

If adopted, the proposals could mean that some platform workers, currently classified as independent contractors, have their employment status reclassified where the employer exercises a degree of control, thereby increasing legal, financial and operational risks. If the algorithm proposals are adopted, platform employers should prepare for greater transparency as well as ensuring human input into significant employment decisions.

Link

  • N/A
Draft directive on adequate minimum wages progresses

The draft directive on minimum wages would require MSs to: establish a plan for the promotion of collective bargaining on wages where coverage is less than 70%; to put in place measures to ensure that workers have effective access to minimum wage protection, where it exists; and, apply specific criteria to the setting and updating of any statutory minimum wage.

Impact Date

2022-2024

Employer Implications/Action Needed

No immediate action is required. The EU Council has agreed its position on the draft directive. Next, agreement will need to be reached with the EU Parliament. As such, the proposals may be subject to change and employers should monitor progress as they develop.

Employer Risk

The draft directive is aimed primarily at MSs, not employers. However, if adopted, employers should anticipate greater scrutiny of wage setting and of compliance with local minimum wages. The proposals do not require MSs to introduce a minimum wage, nor do they affect their right to set the level of any minimum wage. Instead, they are directed at promoting collective wage bargaining and ensuring that any minimum wage is accessible and adequate.

Link

  • N/A
Gender balance in listed boardrooms

A draft directive aims to improve the gender balance among non-executive directors of listed companies.

Impact Date

2022-2027

Employer Implications/Action Needed

If agreed by the EU, the directive would set a target for the proportion of members of the under-represented sex on the boards of listed companies (by 2027, 40% of non-executive director positions, or 33% if all board members are included) and require companies to give priority to candidates of the under-represented sex when choosing between candidates who are equally qualified.

Employer Risk

Companies that fail to reach the targets would have to apply clear, unambiguous and neutrally formulated criteria when appointing or electing directors.

Link

  • N/A

Contact:

Constanze Moorhouse
Partner
+44 12 23 44 38 03
constanzemoorhouse@eversheds-sutherland.com

Finland

Confidentiality clause (case law)

The Supreme Court ruled that the provisions of the Employment Contracts Act limiting the use of non-competition agreements did not apply to a confidentiality clause in a real estate agent’s employment contract. Furthermore, it ruled that the parties had effectively agreed on a confidentiality clause and on a contractual penalty clause related to it in the employment agreement. The real estate agent was required to pay a contractual penalty for both the breach of the non-competition clause as well as for the breach of the confidentiality clause.

Impact Date

15 March 2022

Employer Implications/Action Needed

This ruling is a useful clarification to the status and interpretation of confidentiality clauses. It has occasionally been a topic of discussion whether, and if so, in which cases, confidentiality clauses can be regarded as non-competition clauses. The ruling further clarifies division of non-competition clauses and confidentiality clauses.

Employer Risk

In the event that a confidentiality clause would be interpreted as a non-competition clause, the limitations and requirements imposed on non-competition agreements under the Employment Contracts Act would apply. This could, for example, lead to a requirement for the employer to pay compensation for the non-competition limitation period.

Link

Termination of employment on financial and production-related grounds (case law)

The Supreme Court has ruled that the applicable Collective Bargaining Agreement limited the geographical area of the employer’s obligation to offer work under the Employment Contracts Act. The Supreme Court ruled that this geographical limitation was not to be taken into account when assessing whether the work to be offered had diminished substantially and permanently under the Chapter 7 Section 3 of the Employment Contracts Act regarding financial and production-related grounds for termination.

Impact Date

16 March 2022

Employer Implications/Action Needed

The ruling clarifies whether or not a CBA-based geographical limitation on the obligation to offer work can be used when assessing the substantial and permanent reduction of work under Chapter 7 Section 3 of the Employment Contracts Act. Employers applying a CBA containing such a clause should principally not apply it to assessing whether work has substantially and permanently diminished.

Employer Risk

Incorrectly applying the geographical limitation when assessing whether financial and production-related grounds for termination exist could potentially lead to liability to pay compensation for groundless termination of an employment contract.

Link

Family leave reform

Family leave is being reformed to grant both parents an equal quota of parental leave and to provide that parents can take leave over several periods before their child reaches the age of two. The amount of periods in which the leave may be taken has been increased. Parents may also transfer some of their own leave days to the other parent, custodian, their spouse or the spouse of the other parent. The Finnish Social Insurance Institution pays benefits for the periods of leave. The reform also includes a new unpaid carer’s leave of up to 5 days per year. The carer’s leave supports care for a close relative, such as the employee’s child, spouse or parent. It will accrue annual holiday.

Impact Date

1 August 2022

Employer Implications/Action Needed

Employers should review the new legislation to ensure compliance with the new family leave provisions.

Employer Risk

Breaches of family leave rights could under certain circumstances lead to liability to pay compensation under the Act on Equality between Women and Men or even criminal liability for work discrimination.

Link

Strengthening the rights of variable hours employees

The proposed amendments are intended to strengthen the position of employees working on variable working hours. Under the legislative proposal, the employer would have a more active role in assessing whether the variable working hours match the employer’s actual need for workers. It would require the employer to at least every 12 months assess how the variable working hours agreed in the employment contract have materialized. If it is shown that the minimum working hours agreed could be increased, the employer must offer the employee an agreement to amend the contract provision regarding working hours.

The employer’s obligation to request the employee’s permission for shifts will also be extended and, if the employer cancels a shift in accordance with law or the applicable Collective Bargaining Agreement, the employer would still in certain cases be required to pay compensation for the cancellation. In addition, other changes are being introduced to comply with the EU Directive 2019/1152, including requiring the employer to better inform the employee of the terms of employment.

Impact Date

Estimated 1 August 2022 if the proposal is approved.

Employer Implications/Action Needed

The proposals are particularly relevant for employers employing personnel with variable working hours who should assess how the possible amendments would affect their employment relationships.

Employer Risk

Employers employing staff with variable working hours may be required to amend the contract terms regarding working hours if the actual need for workers can be deemed to exceed the minimum working hours agreed, which in turn will lead to an obligation for the employer to offer more work. While this obligation already exists under the current law, the new legislation would further strengthen it.

Link

Contact:

Timo Jarmas
Partner
+35 81 06 84 15 14
timo.jarmas@eversheds.fi

France

Working time (case law)

An individual agreement for a fixed annual number of working days (forfait-jours) does not give employees the right to freely determine their working hours independently of any constraint linked to the organization of work by the employer in exercising their management powers.

The Cour de cassation determined that the employer could legitimately impose on the employee (a veterinarian) a requirement to be present at work on fixed half-days or full days of work. Such an arrangement aligned with the activity carried out by the veterinary clinic, which received patients by appointment following a schedule set in advance. The Court of Appeal noted that this way of organizing work was consistent with the employee’s status as an autonomous manager, who was free to arrange the working day as the employee saw fit outside these constraints. In particular, the employee remained free to set their own hours and to organize the work as the employee saw fit.

Impact Date

2 February 2022

Employer Implications/Action Needed

The decision in this case provides useful clarification for employers that the use of individual agreements for a fixed annual number of working days does not prevent the employer from imposing organizational constraints on employees (such as attendance at mandatory meetings or between certain times) as long as this is justified by the requirements of the business activity and the employee can freely organize their working day outside these constraints.

Employer Risk

N/A

Link

Sexual harassment (case law)

An employee - a general sales manager with executive status - sent ‘humorous’ messages by email to three male recipients outside the company on several occasions. Those messages were particularly vulgar and degrading for women, with a sexual connotation. The employer discovered the messages during an audit and dismissed the employee for serious misconduct. The Court of Appeal upheld the dismissal on the grounds that “the disputed messages violated the charter designed to prevent sexual harassment [within the company], of which the employee had been aware.”

The Court of Appeal’s decision has since been quashed by the Cour de cassation. The Cour de cassation determined that since the messages were sent to people outside the company and no employee within the company was therefore a victim, the dismissal for serious misconduct could not be based on the existence of sexual harassment within the meaning of the French Labour Code.

Impact Date

2 February 2022

Employer Implications/Action Needed

The case provides useful clarification for employers on what constitutes sexual harassment within the meaning of the French Labour Code.

Employer Risk

N/A

Link

Health protection requirement to justify dismissal of an employee refusing to relocate home closer to workplace (case law)

An employee had been hired under a permanent contract providing that he would be assigned to the company’s head office. He moved 442 kilometers away from his place of work. During a meeting, the employer informed the employee that they did not agree to the move because of the additional travel requirements. In order to ensure his safety, he was asked to relocate his residence to the Paris region, which he refused to do. The employee brought action to the Labour Court seeking the court-ordered termination of the employment contract. The company summoned the employee to a pre-dismissal interview and then notified his dismissal for a real and serious cause due to the fact that his place of residence was too far from his place of work and for breach of his employment contract.

The Versailles Court of Appeal has approved the dismissal for a real and serious cause on the grounds that the employer could not accept the huge distance due to its safety obligation, but also due to the employee’s obligation. The employer must make sure that the employee gets daily rest and maintains a balance between his family life and his work life under the working time in days arrangement (convention de forfait en jours) to which he was subject. The Court rejected the existence of a disproportionate violation of the freedom to choose a personal and family home under the right to respect people’s home, considering the primary obligation is to preserve the health and safety of the employee.

Impact Date

10 March 2022

Employer Implications/Action Needed

For the first time, a court has accepted that the requirement to protect an employee's health can justify his dismissal if he refuses to move his home closer to his place of work.

Employer Risk

N/A

Link

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COVID-19 – General measures

Measures have been made to manage the exit from the COVID-19 health crisis. In particular, there is:

  • no longer a requirement to submit a vaccine pass in places open to the public. However, the health pass will still be required (except in emergency situations or for access to COVID-19 screening) for access to health services and care facilities, army care facilities and medico-social services and facilities (such as dependent elderly persons’ homes (Ehpad) and homes for people with disabilities);
  • no social distancing requirements; and
  • no mask requirements, except in transport and in health facilities.

The administrative fine procedure for employers who have not taken protective measures against COVID-19 has now ended.

Impact Date

14 March 2022

Employer Implications/Action Needed

The ‘traditional’ ordinary legal rules once again apply regarding workplace safety. The Ministry for Labour has published a guide to assist companies and employees in the transition from the corporate health protocol.

Employer Risk

N/A

Link

Whistleblowing – State supervision

The role of the Defender of Rights (DoR) has been extended by appointing a deputy responsible for whistleblowing. The deputy will be responsible both for supporting whistleblowers and for providing information and advice to whistleblowers and protected persons.

Impact Date

21 March 2022

Employer Implications/Action Needed

Employers should note that the reform expands the remit of the DoR by allowing any whistleblower to send a report directly to the DoR. The DoR can also issue an opinion on the capacity of any person that contacts the DoR (whether the individual meets the statutory conditions of a whistleblower).

Employer Risk

N/A

Link

Use by employer of employee’s LinkedIn profile as evidence (case law)

The Cour de cassation has indirectly recognized that employers may rely on the information mentioned in the LinkedIn profile of employees in order to demonstrate the latter’s job situation after the end of their employment contract. In this case, the employee was dismissed for poor performance and the employer was ordered by the court to pay €10,000 in damages for dismissal without a real and serious cause. The employee blamed the trial judges for limiting the sentence against her former employer on the grounds that her LinkedIn profile, submitted to court by the employer, mentioned that she had found a job one month after her dismissal. The Cour de cassation ruled in favor of the employee, holding that the employee’s LinkedIn profile mentioned that she had taken steps to take over a company and not that she had found a job.

Impact Date

30 March 2022

Employer Implications/Action Needed

N/A

Employer Risk

N/A

Link

Economic, social and environmental database

Changes have been made to the regulatory section of the Labour Code, with new information required to be included in the (newly named) economic, social and environmental database (BDESE) of companies that are not covered by a collective agreement. The BDESE must now contain information on:

  • the employer’s general environmental policy: environmental issues and environmental assessment or certification processes, where applicable
  • the circular economy: waste prevention and management, including hazardous waste, and sustainable use of resources such as water and energy
  • climate change: the identification of direct greenhouse gas emissions (from fixed and mobile sources necessary for the company’s activities) and the volume of these emissions, when possible. Where the BDESE provides environmental data that is published at a level beyond company (e.g. at group or its separate entities level), it should “include additional information that is relevant for comparison at that level".

A new environmental aspect is also added into the economic training of the Social and Economic Committee members and the economic, social and trade union training of employees exercising trade union duties.

Further changes to the content of the BDESE, include:

  • companies with at least 300 employees no longer have to report on the number of disabled workers as at 31 March, but must state their numbers for the year in question
  • changes on the information to be given on accidents at work and exposure to difficult working conditions (noise, cold and heat, etc.)
  • under the occupational medicine section, companies with more than 300 employees must now report the number of information and prevention visits and the number of medical examinations carried out, distinguishing between workers under standard monitoring and those under enhanced individual monitoring.

Impact Date

28 April 2022

Employer Implications/Action Needed

Employers should create a new section dedicated to the environment and 3 new sub-sections on their general policy on the environment, the circular economy, and climate change.

Employer Risk

N/A

Link

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Minimum wage increases

The minimum wage rates (SMIC) have been increased by 2.65%, as follows:

  • hourly SMIC: €10.85
  • monthly SMIC: €1,645.58

Impact Date

1 May 2022

Employer Implications/Action Needed

Employers should check that all employees are being paid at least the updated minimum wage rates.

Employer Risk

N/A

Link

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Macron Scale (case law)

A scale applies for determining the compensation that an employer must pay to employees when they are dismissed without a real and serious cause. This scale is based on the employees’ salary and takes into account their length of service.

Employees and trade unions brought a claim to the labour court challenging the legality of the scale. The Cour de cassation confirmed the lawfulness of the scale with the following reasoning:

  • the scale is in line with ILO Convention No.158, which provides that if a termination is unjustified, the judge should be able to order the payment of “adequate” compensation to the employee. The Cour de cassation ruled that the scale complies with this principle because French law i) prevents dismissal without a real and serious cause, and ii) allows reasonable compensation for unjustified termination (without a real and serious cause, but also invalid dismissal which is not subject to the scale).
  • although acknowledging that national courts may disregard a rule of domestic law if its application would disproportionately affect a fundamental right guaranteed by the European Convention on Human Rights, the Cour de cassation considered that such a review in the present case would (i) create uncertainty for litigants as to the applicable rule of law, which could be changed depending on individual circumstances and the judges’ assessment of them, and (ii) infringe the principle of equality of citizens before the law, guaranteed in Article 6 of the 1789 Declaration of Human Rights.
  • Article 24 of the European Social Charter, which provides that signatory States agree to recognise a right to adequate compensation for employees who have been terminated without valid reasons, has no direct effect in France. Consequently, the Cour de cassation, ruled that Article 24 could not be relied on in the claim

Impact Date

11 May 2022

Employer Implications/Action Needed

N/A

Employer Risk

N/A

Link

Mutual termination payment where the employee dies before the termination date (case law)

A mutual termination payment claim arises as soon as the agreement is approved, even if it is only payable on the date set for termination.

The Cour de cassation has held that if the employee dies after the agreement has been approved, the payment must be made to the assignees, even if the effective termination date has not yet been reached.

Impact Date

11 May 2022

Employer Implications/Action Needed

N/A

Employer Risk

N/A

Link

Whistleblowing – Implementing the EU Directive

A law (law to improve whistleblowers protection) has been adopted to implement the EU Whistleblowing Directive has been adopted. It makes the following changes:

  • Clarifies the definition of whistleblower, the scope of information considered as a report and updates the list of applicable secrets.
  • Previously, a whistleblower had to act "in a disinterested manner" and this ambiguous notion has been replaced by the absence of financial compensation. The aim is to make the admissibility of whistleblowing more flexible.
  • Previously, the whistleblower had to have "personal" knowledge of the facts they were reporting. This condition is removed in the professional sphere. In this context, a whistleblower may report facts that have been reported to them.
  • Extends some of the protections offered to whistleblowers, including protection against retaliation to people and not-for-profit legal bodies (trade unions and associations) who are in contact with the whistleblower and facilitators who help with the reporting or disclosure (colleagues, relatives, etc).
  • Removes the hierarchy of warning levels introduced by the loi Sapin II. The whistleblower will now be able to choose between internal and external reporting to the competent authority, the Human Rights Defender, the courts or a European body. Public disclosure will still only be possible in certain situations.

Impact Date

1 September 2022

Employer Implications/Action Needed

Employers should monitor the progress of the law. Employers with an existing protected disclosures policy should examine their procedures to ensure compliance with the anticipated changes.

Employer Risk

N/A

Link

Contact:

Deborah Attali
Partner
+33 15 57 34 217
deborahattali@eversheds-sutherland.com

Germany

Burden of proof of receipt (case law)

The Cologne Regional Labor Court has ruled that the sender of an e-mail bears the full burden of proof that the e-mail has reached the recipient. The fact that the sender is not notified of an undelivered email does not relieve the sender from that burden of proof.

Impact Date

11 February 2022 (judgement published on 21 February 2022).

Employer Implications/Action Needed

Employers sending their employees a legally relevant declaration of intent (such as a warning letter), must ensure that they can evidence proof of receipt. This decision determines that evidence of sending the e-mail is not suitable for proving receipt, even if the sender does not receive any notification that the e-mail was undeliverable. Consequently, employers should choose an alternative method of sending declarations of intent, such as registered mail (‘Einwurfeinschreiben’).

Employer Risk

If an employer cannot prove that a declaration was actually received by the employee, the employer risks being unable to invoke the legal effect associated with the declaration and having to submit a new declaration. Particularly in the case of declarations subject to deadlines, for example exclusion periods, this risks certain rights being lost.

Link

Separation agreement effective despite threat of dismissal without notice (case law)

Where an employee has signed a separation agreement while subject to an unlawful threat, there is a risk that the validity of the separation agreement will be challenged and potentially determined to be null and void.

The Federal Labor Court has recently ruled that there is no unlawful threat in circumstances where an employer asks an employee to sign a separation agreement and also notifies the employee of alternative consequences it is lawfully entitled to pursue under labor law.

A sales employee repeatedly lowered purchase prices without authorization. The employer offered the employee a separation agreement and notified the employee that, if not accepted, it would consider dismissal without notice and criminal charges. The employee challenged the separation agreement on the grounds of unlawful threat. The Court held that the threat of termination without notice and criminal charges was not unlawful as the employer was reasonably allowed to consider such steps for the misconduct in the circumstances.

Impact Date

24 February 2022

Employer Implications/Action Needed

The case provides a useful reminder for employers of the possibility of separation agreements being challenged in the case of unlawful threat.

Employer Risk

N/A

Link

New works council elections

Works council elections were held from 1 March to 31 May 2022. Consequently, if a private sector establishment has at least five employees aged 18 or over, they are entitled to elect a works council. However, at least three employees need to have been with the establishment for at least six months (this is the requirement to be eligible for office) unless the establishment is itself less than six months old.

Impact Date

1 March to 31 May 2022.

Employer Implications/Action Needed

Works council members as well as designated works council members and members of the election committee have enhanced protection against dismissals. Where an employer considers the termination of employment of any such individuals, the prior consent of the works council is required. In addition, once established, the works council has a right to participate and co-determine on certain matters, including in relation to social matters, the layout of the workplace and organization of work, staff matters and particular commercial issues.

Employer Risk

Where required, if an employer acts without the involvement of the works council, the measure risks being deemed unlawful and ineffective. Prior to every measure taken, employers should therefore check whether an information or co-determination right of the works council exists. Where such a right exists, it should involve the works council in good time prior to the measure being taken.

Link

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COVID-19 – Short-time work, sick notes and recent case law

Companies can continue to apply short-time work to workforces under COVID 19-facilitated rules as the simplified short-time working allowance has been extended until 30 June 2022. The maximum period of entitlement has been increased from 24 to 28 months. Existing access to relief for short-time work, increased benefit rates and the exemption from counting income from marginal employment have been extended beyond 31 March 2022. In addition, the rules on issuing sick notes and extending sick leave were extended until 31 May 2022. Furthermore, a court has ruled that an employee presenting an employer with a forged vaccination certificate may warrant termination of employment with immediate effect and another court dismissed the claims of two unvaccinated employees (working in an old peoples’ home) for continued employment where they had not submitted any proof of vaccination.

Impact Date

Short-time work: 18 March 2022; Sick notes: 1 April 2022 to 31 May 2022.

Employer Implications/Action Needed

Employers in Germany can continue to utilize short-time working arrangements with lighter rules if at least 10% of employees have a loss of pay of more than 10% and should be aware of temporary changes to sick notes.

Employer Risk

N/A

Link

No documentation requirement for overtime (yet) (case law)

An employee brought a claim before the Emden Labor Court for payment of overtime. Since the technical attendance recording system provided by the employer did not allow breaks to be entered, the court held that the burden of proof that the employee had not worked the overtime in question lay with the employer.

The court had derived the reversal of the burden of proof from a ruling of the European Court of Justice (ECJ). In 2019, the ECJ ruled (C-55/18) that employers in Member States (MSs) are required to record working hours. However, the ECJ clarified in this ruling that the decision does not have direct application in the MSs, but that the working time recording obligation must first be implemented by the national legislators. This has not yet been done in Germany.

The Regional Labor Court (LAG) of Lower Saxony overturned the ruling by the Emden Labor Court but allowed an appeal to the Federal Labor Court (BAG). The BAG also dismissed the claim, highlighting that the ECJ ruling does not change the previously valid distribution of the burden of presentation and proof in the lawsuit regarding the payment of overtime.

Impact Date

4 May 2022

Employer Implications/Action Needed

At present and while the working time recording obligation from the ruling of the ECJ is not implemented into law by Germany, there is no change of the burden of presentation and proof in any claim regarding the payment of overtime. This means that the burden still rests with the employee.

Employer Risk

N/A

Link

Contact:

Frank Achilles
Partner
+49 89 54 56 52 75
frankachilles@eversheds-sutherland.com

Hungary

COVID-19 – Employers can no longer mandate vaccination

Generally, the mandatory vaccination of employees in Hungary is no longer permissible. However, there are specific groups of employees in strategic positions who must be vaccinated. These include healthcare workers of all kinds, members of the Hungarian Armed Forces and employees of residential social care institutions.

Impact Date

7 March 2022

Employer Implications/Action Needed

Any employees on a period of unpaid leave from work due to the previous mandatory vaccination requirement should now return to work. Employers should notify employees of that requirement in writing (by electronic means or in paper format), including the date of the required return.

Employer Risk

Employers that do not take steps to return employees on unpaid leave to the workplace risk claims of compensation.

Link

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Teleworking

The temporary regulations adopted by the Government due to COVID-19 will no longer be in force. However, an amendment of the Labour Code means that new rules apply to teleworking.

Employees working under teleworking arrangements can work all or part of their working time at a place separate from the employer's premises. Telework arrangements, including home office working, must be agreed between the employer and the employee in writing and neither party can unilaterally order or demand it. Employers must inform employees in writing of the rules on safe working conditions, and which are necessary for the performance of the work. In choosing the place of work, the employees working under teleworking arrangements must take account of such conditions.

Impact Date

1 June 2022

Employer Implications/Action Needed

Employers operating teleworking arrangements should take note of the new rules. Employment contracts should be amended to reflect any teleworking arrangements , a tax-free allowance may be payable to any teleworkers, and home office policies may need to be reviewed and updated.

Employer Risk

N/A

Link

Contact:

Katalin Varga
Partner
+36 (1) 394 31 21
varga@eversheds-sutherland.hu

Ireland

Settlement agreements (case law)

Shortly prior to the termination of employment due to redundancy, the Plaintiff entered into a compromise waiver agreement with the employer (“the Agreement”), waiving any right of action against the employer. The Plaintiff later lodged an application with the Personal Injuries Assessment Board (“PIAB”) and a personal injuries summons was subsequently issued.

The employer sought to dismiss the proceedings on three grounds, one of which being that the Plaintiff had entered into the Agreement. The court allowed the claim to proceed, making clear that there is an obligation on employers to explain the legal effects of agreements signed by employees, particularly in circumstances where the agreement involved the loss of statutory rights.

Impact Date

3 February 2022

Employer Implications/Action Needed

Employers should take steps to ensure that employees entering onto compromise waiver agreements do so on an informed basis. This obligation extends to encouraging an employee to receive legal advice. The employee should also be allowed sufficient time to obtain such advice.

Employer Risk

Employers should ensure that the employee is informed in writing of their right to get legal advice and given sufficient time to obtain that advice. Without this evidence, employers risk waiver agreements being deemed unenforceable.

Link

Redundancy pay after Covid lay-offs

Legislation provides for compensation for employees who lost out on reckonable service whilst on lay-off due to COVID-19 related restrictions and have subsequently been made redundant. The legislation is for employees who qualify for redundancy and who were laid off between 13 March 2020 and 31 January 2022 as a result of COVID-19 restrictions and who are made redundant within three years of the end of the emergency period beginning on 13 March 2020 and ending on 31 January 2025. If eligible, employees are entitled to a payment up to the sum of €2,268 tax free.

Impact Date

19 April 2022

Employer Implications/Action Needed

Employers may make an application for payment on behalf of an employee to the Department of Social Welfare. Employers will not be liable for the cost of the additional redundancy payment for COVID-19 related lay-offs.

Employer Risk

N/A

Link

Gender pay gap reporting

While the Gender Pay Gap Information Act 2021 was agreed last year, the Government must make regulations requiring the publication of gender pay gap information. No date or timeline for its commencement is provided but we anticipate that regulations will be published shortly. Employers who employ at least 250 employees will be required to publish gender pay gap information in December 2022. These employers must choose a snapshot date in June 2022 to form the basis of their reporting. In 2024, these obligations will extend to employers with 150 or more employees, and in 2025 this will extend to employers with 50 or more employees.

Impact Date

Q2 2022

Employer Implications/Action Needed

It is expected that employers will be required to publish a statement which sets out the reasons for the pay gap within their organisation and what measures the employer proposes to eliminate or reduce that pay gap. Employers will be required to publish details setting out pay differences between female and male employees including the difference between both the mean and the median hourly and bonus remuneration of male and female employees and more. In preparation for this, employers should, as a minimum, review payroll data, account for differences in remuneration referable to gender where necessary , and assess whether a gender pay gap exists in the organization, and if so, steps to reduce it including reviewing HR policies and training.

Employer Risk

The Act provides for sanctions for non-compliance with the regulations, once enacted.

Potential breaches of the regulations may be investigated. The Irish Human Rights and Equality Commission may apply to the Circuit Court or High Court for an order directing compliance with the regulations.

Employees will be able to make a claim to the Workplace Relations Commission where an employer fails to comply.

Employers should be aware of potential PR or reputational issues associated with non-compliance.

Link

Whistleblowing changes

The EU Whistleblowing Directive is being implemented into Irish law. The legislation will further extend the scope and breadth of the protections afforded to individuals who make protected disclosures (whistleblowing) in Ireland.

Impact Date

Q2 2022

Employer Implications/Action Needed

Employers with an existing protected disclosures policy should examine their procedures to ensure compliance with the proposed changes. The Bill requires all public sector organizations and all private sector organizations with 50 or more employees to establish formal channels and procedures for their employees to make protected disclosures (a derogation from this requirement applies to undertakings that employ between 50-249 employees until 17 December 2023). Those employers falling into these categories without existing channels and procedures should therefore take steps to establish such processes, taking account of the requirements of the Bill.

Employer Risk

In terms of additional and new redress, the proposed legislation allows the Workplace Relations Commission or Labour Court to award compensation of up to €15,000 for individuals not directly employed or in receipt of remuneration, including, for example, job applicants and volunteers. The proposed legislation provides that interim relief can be obtained before the Circuit Court in all cases where a worker alleges penalisation, not just in circumstances where the worker has been dismissed. Criminal sanctions may be imposed on those who hinder a person from making a report or penalise a reporting person. In addition, employers who commit an offence under the Bill may be liable for fines not exceeding €250,000 or to imprisonment of up to two years, or both.

Link

Enhanced statutory sick pay

Employees will be eligible to receive statutory sick pay after 13 weeks of continuous service. They will be entitled to paid sick leave for up to 3 days in 2022. This will increase to 5 days in 2024, 7 days in 2025 and 10 days in 2026. The rate of payment for statutory sick leave will be 70% of normal wages to be paid by employers (up to a maximum of €110 per day).

Impact Date

Q3 2022

Employer Implications/Action Needed

Employers should review their sickness and absence policies and contracts to ensure that they reflect this new entitlement.

Employer Risk

Where there is a dispute between an employer and employee concerning the employee’s entitlement to statutory sick pay (“SSP”), the Workplace Relations Commission may award an employee up to 20 weeks’ remuneration if they find that an employer has denied them their entitlement to SSP.

Link

Extending work-life balance rights

Proposed legislation will transpose elements of the EU Directive on work-life balance for parents and carers. It will apply to parents and carers whose rights will be extended through a right to request flexible working; the introduction of five days unpaid leave per calendar year for serious medical care; and the extension of the existing entitlement to breastfeeding breaks from six months to two years.

Impact Date

Q3 2022

Employer Implications/Action Needed

Employers should review their sickness and absence policies and contracts to ensure that they reflect these new entitlements.

Employer Risk

An employee who is dismissed for exercising or proposing to exercise their right of leave for medical care purposes or to request flexible working arrangements for caring purposes, shall be entitled to bring a unfair dismissal complaint to the Workplace Relations Commission.

Link

Right to request flexible working

Proposed legislation gives employees with at least 26 weeks continuous service the right to submit a request, in writing, for remote working arrangements. Employers have up to 12 weeks from the date of the request to decide and may refuse the request on business grounds.

The Workplace Relations Commission will publish a Code of Practice on the general principles applicable to the statutory right to request remote working.

Impact Date

Q3/Q4 2022

Employer Implications/Action Needed

Employers must ensure that they have in place a written policy on remote working which is available to employees and complies with the legislation once enacted. This policy should set out the process for requests being made and considered, including an appeals process for employees who have their requests refused. Employers should be prepared to consult with employees regarding any proposed change to an existing policy or when implementing a new policy. The policy must be brought to the attention of employees upon commencement of employment and at least annually, or when amended, thereafter.

Employer Risk

Employers that fail to implement and apply the new requirements risk employees bringing complaints to the Workplace Relations Commission. They may also be liable on summary conviction to a Class C fine not exceeding €2,500. It will, however, be a defense for the employer to prove that it exercised due diligence and took reasonable precautions to ensure that the legislation was complied with.

Link

Gender pay gap reporting

The Gender Pay Gap Information Act 2021 (the “2021 Act”) introduced a legislative basis for gender pay gap (“GPG”) reporting. The 2021 Act will require employers to report on their hourly gender pay gap across a range of metrics. The Government has recently published updated guidance for employers.

The GPG reporting requirements will apply to employers with more than 250 employees in the first two years after the introduction of the GPG regulations. In the third year, the requirements will also apply to employers with 150 or more employees. Employers are required to choose a snapshot date in June 2022. The GPG reporting deadline will be 6 months after the snapshot date. The reporting period is the 12-month period prior to and including the snapshot date.

Impact Date

Q3 and Q4 of 2022.

Employer Implications/Action Needed

Employers with over 250 employees should prepare for their chosen snapshot date in June by: gathering the necessary pay data from payroll, including benefits in kind and bonuses; liaising with HR to collect people data and ensure that all data is up to date; developing initiatives to reduce existing pay gaps, and promote and improve gender equality; and connecting with PR or communications teams to assist in writing the GPG report.

Employer Risk

If an employer fails to publish a report, the 2021 Act provides the Irish Human Rights and Equality Commission with the power to make an application to either the Circuit Court or to the High Court for the granting of an order requiring the employer to comply with the 2021 Act.

The 2021 Act also provides that an employee who claims that their current employer has failed to comply with the 2021 Act may refer their employer to the Director General of the Workplace Relations Commission. The Director General shall investigate the complaint if they are satisfied that there is a prima facie case to warrant the investigation.

Links

National Minimum Wage

The purpose of the National Minimum Wage (Payment of Interns) Bill 2022 (the “Bill”) is to provide for the payment of the national minimum wage to certain persons doing work as interns or on work experience. The Bill proposes to amend the National Minimum Wage Act 2000 to ensure that an employee who does more than 30 hours of work within any period of four weeks for another person is paid.

Impact Date

Awaited.

Employer Implications/Action Needed

Employers should be aware that should this Bill be passed in the future, this will apply to employees who: have not entered into/do not have a contract of an employment; are referred to as described as a trainee, an intern or a person on work experience.

Employer Risk

Employers should monitor the status of the Bill.

Link

Pay transparency

The Employment Equality (Pay Transparency) Bill 2022 (the “Bill”). The Bill aims to ensure pay transparency for roles advertised by business and public sector organisations.

Impact Date

The Bill is a private members’ bill put forward by members of Sinn Fein. However, we expect a government sponsored bill in the future to implement the European Commission’s proposal for a directive on pay transparency once a transposition date has been set.

Employer Implications/Action Needed

Employers must ensure that they do not publish or display an advertisement which discriminates or signals an intention to discriminate. Moreover, if this Bill is passed, employers will have an obligation to publish an approximate remuneration owed to a worker for taking up a contract of employment. As such, employers should move to display the approximate remuneration on their job descriptions and advertisements.

Employer Risk

Employers should monitor the status of the Bill.

Links

Flexible Working

The purpose of the Right to Flexible Work Bill 2022 (the “Bill”) is to:

  • provide employees with a right make a request for flexible work
  • require employers to deal with requests for flexible work within a fixed period
  • provide that an employer may refuse a request only on grounds of reasonable practicability
  • require employers to maintain a policy on flexible work which can be inspected by employees and the Workplace Relations Commission and
  • provide a right of appeal in certain circumstances against a refusal of flexible work.

Impact Date

Awaited.

Employer Implications/Action Needed

Employers should ensure that they have a robust flexible work policy in place. Such policy document should outline the procedures for requesting flexible working arrangements, the time limits for employers to make a decision, the grounds upon which an employer can refuse a request; and an employee’s right to appeal.

Employer Risk

If this Bill is passed, employers will be required to maintain a policy on flexible work that can be inspected by the Workplace Relations Commission.

Link

Contact:

Joanne Hyde
Partner
+35 31 66 44 25 2
joannehyde@eversheds-sutherland.ie

Italy

COVID-19 - Mandatory vaccination

The requirement for employees to be vaccinated remains in place for those working in the healthcare sector and individuals who work in schools, defence, security and for prison staff. In addition, mandatory vaccination has been extended to those over the age of 50 who are Italian citizens or who are EU or foreign citizens who reside in Italy.

Impact Date

8 January 2022 to 15 June 2022 for individuals over 50 years old. Until 31 December 2022 for those working in the health care sector and until 15 June 2022 for those working in the school sector.

Employer Implications/Action Needed

Employers need to keep apprised of developments to ensure they comply with the latest legal requirements and guidance. For example, employer checks for covid-19 green passes are no longer required from 30 April 2022.

Employer Risk

N/A

Link

Paid leave carer’s leave

A new right to up to 3 days’ paid carers leave per month has been introduced to support employees who assist relatives with a serious disability (i.e., spouse, parents, children, brothers and sisters, grandparents, nephews and uncles, etc.). The Italian Social Security Authority (INPS) has clarified that this paid leave can also be requested by cohabitating couples and those in civil unions, as defined under Italian law.

Impact Date

7 March 2022

Employer Implications/Action Needed

N/A

Employer Risk

Employers that do not allow eligible employees to take paid leave risk claims for damages.

Link

Work from home (so-called “smart-working”)

The possibility of employers implementing working from home by using the simplified procedure (i.e. without the individual written agreement with the concerned employee) has been extended to 30 June 2022.

Impact Date

From 25 March 2022 until 30 June 2022.

Employer Implications/Action Needed

Employers should note the extended possibility of utilising the simplified procedure for smart working.

Employer Risk

N/A

Link

Health & Safety at the workplace

Employers, the executive and plant managers must be adequately trained on their duties to ensure Health & Safety at the workplace. Such training must be carried out at least every 2 years. Further guidance is awaited on the specific content of that training, which will be provided in a separate agreement between the Italian Government and the Regions. It is expected that this guidance will be issued by 30 June 2022.

Impact Date

30 June 2022

Employer Implications/Action Needed

Employers should monitor the progress of the entry into force of the guidance and may need to adjust health and safety practices.

Employer Risk

Employers that fail to comply with health and safety obligations risk the payment of administrative fines and criminal liabilities.

Link

Contact:

Marcello Floris
Partner
+39 02 89 28 71
marcellofloris@eversheds-sutherland.it

Valentina Pomares
Partner
+39 02 89 28 71
valentinapomares@eversheds-sutherland.it

Latvia

Whistleblowing

The EU Whistleblowing Directive has been fully transposed into the law in Latvia. The new Whistleblowing Law provisions include:

  • a requirement for private legal entities with more than 50 employees to establish internal reporting channels (except in legally specified cases);
  • clarification of the scope of a whistleblowing disclosure;
  • confirmation of the situations in which public whistleblowing is protected;
  • confirmation of the parties that are protected, including “related parties” (e.g., colleagues, owned companies and other related legal entities); and
  • extended protection against adverse consequences related to the whistleblowing.

The new law does not protect against anonymous whistleblowing.

Impact Date

4 February 2022

Employer Implications/Action Needed

Employers should familiarise themselves with the new legal requirements and audit their existing practices and procedures for compliance. Where that analysis identifies any areas which are not fully compliant, remedial steps should be undertaken as soon as practicable.

Employer Risk

Failure to comply with the new law risks administrative fines.

Link

Support of Ukrainian Civilians

To support Ukrainian citizens leaving Ukraine due to the military conflict, the Law on Support of Ukrainian Civilians has been adopted. The Law includes certain exceptions to the usual regulatory requirements for employment, including:

  • an employer may employ a Ukrainian civilian even where that individual does not have the official language skills, as long as the absence of that skill does not interfere with the performance of the role;
  • the mandatory health examination requirement is waived for the first three months of employment of a Ukrainian civilian;
  • the employment of a Ukrainian civilian does not require the registration of the vacancy with the State Employment Agency; and
  • the minimum salary requirement for the employment of foreigners is not be applicable for the employment of a Ukrainian civilian.

Impact Date

5 March 2022

Employer Implications/Action Needed

N/A

Employer Risk

N/A

Link

Sickness benefit

To reduce employer labor costs associated with employee sickness absence, the date from which State sickness benefit becomes payable has changed. From 1 April 2022, sickness benefit is payable by the employer to employees for up to nine calendar days of incapacity (instead of the previous period of ten calendar days) and state benefit is payable from day ten (instead of from day eleven, as previously).

Impact Date

1 April 2022

Employer Implications/Action Needed

No immediate actions required.

Employer Risk

N/A

Link

Implementation of EU Directives on predictable working conditions and work-life balance

A Bill for implementation of the EU Directives on predictable working conditions and work-life balance has been passed to parliament for consideration. The anticipated amendments aim to meet minimum EU requirements and, inter alia, include:

  • extension of maximum probationary period by collective labor agreements;
  • regulation if a working schedule is not fully (or mostly) predictable;
  • right of the several categories of employees to require an employer to make adjustments to working time;
  • information that must be provided to an employee in the case of official travel and work travel;
  • right to unpaid carers’ leave;
  • right of specific carers’ leave of 10 working days after the birth of a child.

Impact Date

The Directives must be implemented by the beginning of August 2022, however no effective date is currently available.

Employer Implications/Action Needed

No actions required at present. When changes come into force, relevant employment documents and internal processes will need to be updated as necessary.

Employer Risk

N/A

Link

Parental benefit

A pilot project which could lead to amendments to pay and benefits for parents under current Maternity and Sickness Insurance laws is being launched. If successful, the pilot could lead to each parent of a child under the age of eight being entitled to paid leave of at least two calendar months. Leave is not transferable.

Impact Date

No effective date is currently available.

Employer Implications/Action Needed

No immediate actions required.

Employer Risk

N/A

Link

Contact:

Elīna Muciņa
Partner
+371 67 280 102
elina.mucina@eversheds-sutherland.lv

Lithuania

Obligation to obtain transparent worker's ID Code

Each self-employed person, employee or posted worker who performs construction work on a construction site is obliged to obtain a Transparent Worker's ID Code from the State Social Insurance Fund Board under the Ministry of Social Security and Labour. This Code is a unique QR code which provides information on the status of the individual posted to Lithuania.

Impact Date

1 April 2022

Employer Implications/Action Needed

The employer/ host Lithuanian company must ensure that all affected workers who are required to have a Transparent Worker's ID Code obtain one and are able to present it during an inspection by the State Labour Inspectorate, the State Tax Inspectorate, the police and other authorities. Sight of this ID code may also be requested by a construction contractor or construction client.

Employer Risk

Non-compliance by employers may lead to an administrative penalty of between €500 and 1100, depending upon the nature of the offences. A repeated breach carries a penalty of between €1100 and 2550. For non-compliance by contractors, builders (construction clients) or self-employed individuals may lead to an administrative penalty of between €500 and 2550 (or between €1100 and 6000 for repeated breach). A breach by an employee carries a penalty of between €50 and 150 (€150 to 250 for repeated breach).

Links

Changes relating to reduced per diem rates

Employers and employees will no longer be able to lawfully agree reduced per diem rates (i.e. daily allowances). Once this change is in force, reduced per diem rates (by up to 50 per cent of the maximum per diem rates approved by the Lithuanian Government) may only be concluded via collective agreement or, where there is none, in a local regulatory legal act.

Impact Date

1 July 2022

Employer Implications/Action Needed

The change means that individual agreements regarding reduced per diem rates will be invalid as of 1 July 2022. To introduce reduced per diem rates, information and consultation procedures must be completed in accordance with the procedure established by the Labor Code of the Republic of Lithuania. If per diem rates are set by a local regulatory legal act, employees must be formally notified of these.

Employer Risk

From 1 July 2022, continued payment of reduced per diem, as agreed in individual employment contracts, risks labor disputes. In addition, non-compliance may lead to an administrative penalty of between €300 and 1450, depending upon the offence. A repeated breach carries a penalty between €1400 and 3000. A deliberate breach carries a penalty between €2700 and 6000.

Link

Reduced working time standard for some employees in the public sector

A shorter working week is to be introduced next year for employees of various state and municipal institutions or establishments who are parents of very young children. Instead of a 40 hour working week, a reduced working week of 32 hours (i.e. a reduction of one day per week) will apply to these workers who are raising children younger than 3 years. Eligible employees will be paid their normal salary (i.e. will not lose a day’s pay despite the reduction in hours). Only one parent may benefit from this change.

Impact Date

1 January 2023

Employer Implications/Action Needed

Employers will need to plan for employees working reduced hours and accommodate their entitlement to do so.

Employer Risk

From 1 January 2023, a public-sector employer's refusal to allow parental time off of one day per week risks labor disputes. In addition, non-compliance may lead to an administrative penalty of between €300 and 1450 according to the Code of Administrative Offences. A repeated breach carries a penalty between €1400 and 3000. A deliberate breach carries a penalty between €2700 and 6000.

Link

Contact:

Jonas Saladžius
Partner
T: +37 05 23 92 391
jonas.saladzius@eversheds.lt

Netherlands

Logging in time is “working time” (case law)

A court has recently ruled that, where an employer required its employees to be present at work 10 minutes before their contractually agreed start time in order to boot up and/or log in as a preparatory step for work, this time was working time for which the employees were entitled to be paid. Influencing factors included that the requirement was referred to in company policy; the 10 minutes was mandated by the employer and overseen by them and was deemed necessary preparation for work. The employer was ordered to pay back pay for this unpaid preparation time over a period of 5 years.

Impact Date

8 April 2022

Employer Implications/Action Needed

Employers should review any practices or procedures which add to an employee’s working day to ensure such time does not constitute working time and must be paid.

Employer Risk

Failing to regard periods of work as working time when they are legally categorised as such can lead to alleged breaches of working time requirements but also claims for potential back pay over a prolonged period, including intervening pay rises and interest.

Link

Implementation EU Whistleblowing Directive (“WBD”)

Legislation expected last year to implement the WBD is overdue but is anticipated shortly. Once in force it will provide:

  • protection for all persons in a work-related relationship;
  • a requirement for employers to have internal whistleblowers procedures;
  • additional requirements for internal and external reporting channels and procedures, including timeframes;
  • more robust confidentiality requirements;
  • there will be no requirement to first report a suspicion of a wrongdoing internally before reporting it externally;
  • a reversal of the burden of proof for demonstrating detriment as a result of the disclosure.

Impact Date

Expected in the first half of 2022.

Employer Implications/Action Needed

Once the legislative proposal is adopted, employers should (i) amend their whistleblower procedure and related practices, taking into account the new legislation and (ii) appoint an independent officer to whom the (suspicions of) wrongdoing or infringements of EU law can be reported

Employer Risk

Employers that breach the obligation to keep the identity of employees who raise a concern confidential, risk criminal prosecution and fines of up to € 21,750. In addition, if an employer deliberately provides false information about an employee and publishes the information, it also risks criminal prosecution and fines of up to €21,750.

Link

Temporary workers (case law)

As a general rule, a temporary employment agency may not do anything that prevents a temporary worker from working for the hirer after the end of the assignment.

The Supreme Court has recently determined that this rule does not automatically apply to self-employed persons. Whether it does will depend on whether the self-employed person enjoys legal protection based on the work performed. In this respect, an initial consideration will be whether the temporary worker meets the requirements of the Temporary Agency Work Directive. An important consideration in this respect will be whether the worker performs work under the management and supervision of the hiring company and receives compensation from the hiring company.

Separately, a lower Court has ruled that the rule does not extend to preventing the temporary worker from setting up a competing business and subsequently performing work via that business for the hiring company.

Impact Date

20 April 2022 and 20 May 2022.

Employer Implications/Action Needed

These case law developments will be most relevant for temporary employment agencies and employers that use temporary workers. Such employers should note that the prohibition of impediments may apply in some circumstances to self-employed persons.

Employer Risk

N/A

Links

Minimum wage

The minimum wage for employees aged 21 or over will be increased from €1,725.00 to €1,756.20 gross per month (based on full time employment), excluding the 8% statutory holiday allowance. Changes to the maximum daily wage, which generally also take effect on 1 July of each year, have not yet been announced.

In addition, the Dutch Government announced its intention to start increasing the minimum wage by a total of 7.5%, to be implemented in three steps from 2023 to 2025. However, no final decision has been made on this subject.

Impact Date

1 July 2022

Employer Implications/Action Needed

Employers shall (i) ensure that their employees receive at least the statutory minimum wage and (ii) check whether salary levels required for certain exceptions (e.g. including holiday allowance in salary if salary equals 3x minimum wage) are still being met.

Employer Risk

Failing to pay the statutory minimum wage may result in wage claims (including the statutory increase of 50%) from employees and fines from the Netherlands Labour Authority between €500 and €10,000 per employee. Additionally, this may have a negative effect on an employer’s public image.

Link

EU Transparent and Predictable Working Conditions Directive

Draft legislation implementing the Transparent and Predictable Working Conditions Directive is expected to receive final approval imminently and to come into force on 1 August 2022. The most relevant changes include (but are not limited to):

  • Employers will no longer be permitted to recover costs for compulsory education or training from employees and any time spent on such education or training is considered working time;
  • Any contractual clause which purports to prohibit or restrict employees from performing work for other companies outside their working hours will be null and void, unless there is objective justification;
  • Employers will be obliged to provide information to employees (in writing) about an extended list of key terms and conditions of employment;
  • Employers must confirm the normal working hours and rest periods within 1 week of commencement of employment;
  • Prior to any posting of employees from the Netherlands to another EU-country, employers must provide information on the wages, allowances and any arrangements for reimbursements of travel, accommodation and/or meals;
  • After 26 weeks of employment, employees will be entitled to make a request (in writing) for their employer to provide more predictable and secure working conditions, insofar as these already apply to other employees within the company.

Impact Date

1 August 2022

Employer Implications/Action Needed

Employers should look out for final confirmation of implementation date but should be preparing for the new legislation by reviewing current practices and, if necessary, amending these to ensure compliance.

Employer Risk

Failure to comply with these new requirements may lead to challenge and/or claims from employees, depending on the specific rule that has been breached. Further, the new legislation provides protection against detriment or dismissal for employees invoking their rights.

Link

  • N/A
Parental leave rights

The Paid Parental Leave Act (“the Act”) will increase parental benefit payments during parental leave (to at least 70% of statutory maximum salary, instead of the previous 50%, administered by the Employee Insurance Agency). Employees are entitled to this benefit for a period of up to 9 times their weekly working hours, which must be taken before the child reaches the age of 1.

Impact Date

2 August 2022

Employer Implications/Action Needed

Employers should apply the amended benefit percentage. In addition, employers should review and/or amend internal policies for parental leave in accordance with the new legislation. HR departments should note that requests for parental leave benefit may need to be submitted to the Employee Insurance Agency by employers.

Employer Risk

Failure by employers to grant parental leave and/or request paid parental leave benefits on behalf of and at the request of employees risks legal claims from employees as well as reputational damage.

Link

  • N/A
Travel allowance

The maximum tax-free travel allowance which can be provided by employers will be increased from €0.19 to €0.23 per kilometre. An employer may offer a lower travel allowance than €0.23. An employer may also offer a higher travel allowance, but the amount which exceeds the maximum of €0.23 per kilometre will be taxed. Employers will continue to be able to reimburse actual costs of travelling by public transport on a tax-free basis.

Impact Date

1 January 2023

Employer Implications/Action Needed

Employers should review whether their (template) employment agreements contain a reference to the statutory maximum tax-free allowance. If so or if the applicable Collective Labour Agreement states so, the maximum tax-free travel allowance shall be increased to €0.23 per kilometre.

Employer Risk

Failing to offer the higher travel allowance, if required to do so, could result in salary claims from employees.

Link

Dutch Pension Act ( “Wet Toekomst Pensioenen”)

The Future Pensions Act (in Dutch: Wet Toekomst Pensioenen, “Wtp”) will amend current pension provision over several years, impacting current employer agreements and pension schemes. In particular, the Wtp will ban defined benefit agreements, making defined contribution agreements the standard.

Impact Date

Between 1 January 2023 - 1 January 2027.

Employer Implications/Action Needed

Employers should review their pension schemes and bring them in line with future pension legislation, allowing time for due consideration of potential complexities and the discharge of consultation obligations, if any.

Employer Risk

The applicable pension scheme may be rendered unlawful. Pension administrators may terminate administration agreements if the deadline of 1 January 2027 is not met but, furthermore, if the pension scheme does not comply with tax law from 1 January 2027, a penalty clause will come into effect.

Link

SER advice on hybrid working

The Social Economic Council or “SER” (which is an advisory body to the government, made up of employers, employee representatives and independent experts) has published an advice regarding hybrid working. In principle, the SER recommends giving employees more control over their place of work. One example is a recommended amendment to the Flexible Working Act, which currently provides a right for employees to request a change in place of work as a flexible working arrangement but places no obligation on the employer to agree. The SER recommendation would oblige the employer to consider such a request on the basis of reasonableness and fairness, as determined by the specific circumstances. The SER advice is not legally binding but may encourage the legislators and employers to respond to rising demand for hybrid working.

Impact Date

Unknown at this time.

Employer Implications/Action Needed

Employers are already responding to more home-working or hybrid working requests but should bear in mind the potential for legal change in this area were the SER’s recommendations to be taken forward by government. In particular, employer-discretion over requests may become subject to greater scrutiny and justification.

Employer Risk

Unknown at this time.

Link

Contact:

Wijnand Blom
Partner
+31 20 56 00 608
wijnandblom@eversheds-sutherland.nl

Marieke Koster
Partner
+31 10 24 88 057
mariekekoster@eversheds-sutherland.com

Anique Bitterlich-Straver
Partner
+31 10 24 88 049
aniquebitterlich@eversheds-sutherland.com

Norway

Duty of the employer towards employees with reduced capacity

The Supreme Court has provided useful guidance on the extent of the obligation to introduce workplace adjustments for employees with reduced capacity (as required by the Norwegian Working Environment Act). Dismissal of the employee will not normally be objectively justifiable unless the employer can show it has discharged its obligation to make adjustments or suitable adaptations. However, the Supreme Court has confirmed that relevant considerations for the employer may include the employer's need to determine its organizational structure and appointments. Furthermore, satisfying the requirement to make adaptations does not necessarily require every aspect to be documented but may also take into account the employer’s explanations of its conduct.

Impact Date

16 February 2022

Employer Implications/Action Needed

This case provides helpful clarification over the relevant considerations when balancing the employment protections afforded to an employee with reduced capacity and the needs of the business. It will still be important for employers to retain clear documentation in cases where dismissal may become relevant.

Employer Risk

N/A

Link

Amendments to the mandatory occupational pension scheme

A transition period for the extension of mandatory pension scheme enrolment to employees aged 13 to 20 expires shortly. Limited exemptions apply.

The basis of pension accrual also now includes all salary up to 12 times the national insurance basic amount.

Impact Date

Transition period for implementation ends 30 June 2022.

Employer Implications/Action Needed

Ensure that employees who are eligible for mandatory occupational pension are enrolled in the current pension scheme and that the basis of pension accrual is in accordance with statutory law.

Employer Risk

Risk of claims for additional payments. Breach of the obligation to provide mandatory occupational scheme may involve criminal liability.

Link

Amendments to the Home Office regulations

Legal provision regarding working from home is to be updated. Key changes will include the following:

  • The Norwegian Working Environment Act’s provision on working hours will be extended to apply to those who work from home;
  • Limited exceptions to the requirement to have a written home office agreement will be available;
  • Employer-responsibility for ensuring a safe working environment extends to those who work from home;
  • The Norwegian Labour Inspection Authority will be available to supervise.

Impact Date

1 July 2022

Employer Implications/Action Needed

Where the regulations require it, employers should ensure an appropriate home office agreement is in place. Employers retain discretion over the equipment they will provide to home-workers and any costs that they will cover. Ensuring a safe working environment requires employers to facilitate contact and communication between employees.

Employer Risk

A failure to consider carefully and to agree terms for home-working could risk health and safety breaches, reduce efficiency/productivity and potentially lead to disputes.

Link

General right to make temporary appointments and stricter rules for hiring

The general right to make temporary appointments is to be repealed. Temporary appointments will accordingly be restricted by the Norwegian Working Environment Act to supplemental resource to cover a temporary need. In addition, stricter rules regarding less stable employment are planned, including:

  • Temporary hires, typically used for project work, seasonal work or special expertise, are to be scrapped;
  • The maximum period of rolling appointments will be reduced to two;
  • A new provision will clarify the distinction between hiring and contracting.
  • Temporary-work agencies will be banned from certain construction sites across the country.

Impact Date

1 July 2022

Employer Implications/Action Needed

Temporary appointments entered into after 1 July 2022 must be based on one of the grounds for temporary appointment provided in the Norwegian Working Environment Act section § 14-9 second paragraph. Furthermore, if the wider restrictions on hiring are introduced in full, employers will need to consider carefully the make-up of their staff and how this fits with the new restrictions and the clarified distinction between hiring and contracting.

Employer Risk

Risk of claims for permanent employment and compensation for non-compliant temporary engagements. Hiring restrictions may reduce staffing/ recruitment flexibility.

Links

Stricter rules for part-time working

Proposals under consideration would apply much greater scrutiny and administration of the engagement of part-time workers, including:

  • The employer would be obliged to document their need for part-time working and discuss this with the employees' elected representatives before offering part-time employment.
  • The Norwegian Labor Inspection Authority would have authority to over-see compliance; and
  • Current preferential rights of part-time employees would be extended to hiring, use of extra shifts and to on call services.

Impact Date

Unknown.

Employer Implications/Action Needed

None at present although auditing use of part-time employment is recommended to appraise risk. If adopted, the proposal would extend significantly the current employer duties to justify and discuss the use of part-time under the Norwegian Working Environment Act.

Employer Risk

If adopted, the process and administration of filling part-time positions will increase considerably, as will the expected time frame for recruitment.

Link

Contact:

Sten Foyn
Partner
T: +47 928 35 278
s.foyn@haavind.no

Martin Haukland
Senior Lawyer
T: + 47 414 61 776
m.haukland@haavind.no

Poland

Aid to citizens of Ukraine

New legislation has introduced temporary measures for citizens of Ukraine. The measures apply to citizens of Ukraine and their spouses entering Poland legally since 24 February 2022 who declare an intention to stay in Poland as a result of the current hostilities. The law regulates, among other things, access to the labour market, education, medical care and other public services. All eligible citizens of Ukraine may stay legally in Poland for 18 months, starting from 24 February 2022.

Impact Date

24 February 2022

Employer Implications/Action Needed

The new legislation includes provisions facilitating access to the labour market and the status of an unemployed person or jobseeker for Ukrainian citizens whose stay in Poland has been recognised as legal. Eligible Ukrainian citizens do not need a separate work permit, and it is sufficient for the employer to notify the employment office (PUP) within 14 days of the Ukrainian citizen taking up employment. Moreover, the Act provides for the possibility of taking up and carrying out economic activity by Ukrainian citizens on the same conditions as Polish citizens.

Employer Risk

N/A

Links

Homeland Defense Act

A new Act on Homeland Defence has modified the provisions applicable to employers who hire persons who have received an appointment for service or military training.

Impact Date

23 April 2022

Employer Implications/Action Needed

The new Act contains similar rights and obligations for employers as existed previously. However, employers should note that it introduces some changes to the scope of persons affected, depending on the type of military duty, as well as to their entitlements (e.g. to days off).

Employer Risk

Employers should assess their rights and obligations under the new Act in case of hiring persons who receive appointment to serve or train in one of the army units.

Link

Whistleblowing

The government has published a draft bill which aims to implement the EU Whistleblowing Directive. The bill sets out obligations for employers to establish internal procedures for reporting breaches as well as providing protection to reporting persons against retaliation.

Impact Date

Expected by summer 2022.

Employer Implications/Action Needed

The bill may change further during the legislative process but employers should assess their current reporting processes, based on the draft, to understand potential shortcomings and remedial action that may be needed pending final legislation.

Employer Risk

At this stage pending the final version of the legislation, the risks associated with any breach of the new law are uncertain. However, based on the draft bill, it is currently expected that criminal sanctions will apply in the event of any failure to establish internal reporting channels.

Link

Transparent and predictable working conditions and work-life balance for parents and carers

The government has presented draft legislation amending the Labour Code in order to implement the EU Transparent and predictable working conditions Directive and Work-life balance for parents and carers Directive.

The draft provisions include:

  • An extension of the scope of information provided on the conditions of employment, including information on training provided by the employer and the paid leave to which an employee is entitled;
  • An obligation to state the reason for the termination of fixed-term employment contracts;
  • Additional conditions for concluding employment contracts for a trial period;
  • For employees working for at least 6 months, the right to apply for more predictable work or safer working conditions and to receive a written reply to this application, stating the reasons, within one month of receipt;
  • The right to free training necessary for the performance of a specific job;
  • Extension of parental leave;
  • Additional unpaid carer's leave;
  • Extended use of flexible work.

Impact Date

By 2 August 2022.

Employer Implications/Action Needed

Employers should monitor the progress of the draft legislation.

Employer Risk

N/A

Link

Adoption of the provisions on the remote work into the Labour Code

The government has adopted a new version of the Labour Code Bill which introduces permanently the provisions on remote working. These provisions aim to replace the telework provisions.

According to the current version of the Bill, permanent or hybrid remote working will be possible subject to agreement between the employer and employee (in some limited cases, employers will be allowed to unilaterally require employees to work remotely). The Bill also provides for exceptions when the employer will be obliged to accept an employee’s request for remote work (e.g. in case of pregnancy or childcare). The costs relating to remote work must be borne by the employer.

This is not the final version of the Bill and it is likely to undergo further amendments.

Impact Date

Q3 2022

Employer Implications/Action Needed

Employers will be required to conclude agreements with any employees who perform work remotely, provide the necessary working tools (or an equivalent) as well as develop appropriate procedures for remote work and reimbursement of the related costs.

Employer Risk

N/A

Link

Sobriety checks by employers

The latest version of the Labour Code Bill introduces provisions to allow employers to check employees and civil law contractors for the presence of alcohol or intoxicating substances. Such checks must be conducted in a non-invasive manner and will be possible only for the purpose of ensuring the protection of the life and health of employees and other persons or the protection of property. The specific circumstances in which such checks will be allowed has not yet been confirmed.

This is not the final version of the Bill and it is likely to undergo further amendments.

Impact Date

Q3 2022

Employer Implications/Action Needed

If the law is passed and employers wish to consider using sobriety checks, employers should first establish whether conducting checks is required to ensure the protection of the life and health of employees and other persons or the protection of property. If it is, the adoption of relevant procedures and policies is recommended.

Employer Risk

N/A

Link

Labour code developments

The government has submitted draft legislation proposing amendments to the Labour Code including:

  • new provisions on remote working, including placing a limit on the number of days per year on which employees can work remotely; an obligation to introduce remote working regulations; an obligation to submit a declaration that the employee has appropriate working conditions for performing remote work; and the payment of a lump sum or equivalent; and
  • a basis for employers to introduce and carry out checks on employees for the presence of alcohol and other intoxicants in certain circumstances.

Impact Date

Unknown.

Employer Implications/Action Needed

Employers should monitor the progress of the draft legislation. The draft legislation is still undergoing some amendments and its final form is not yet confirmed. However, in anticipation of the new requirements, employers should start to consider and plan for policy and procedural changes that may be required to current arrangements.

Employer Risk

N/A

Link

Contact:

Ewa Lachowska-Brol
Partner
+48 22 50 50 79 7
ewa.lachowska-brol@eversheds-sutherland.pl

Portugal

Retirement age

A reduction in the retirement age pension will take effect in 2023 (reducing by three months to 66 years and 4 months). A reduction in pension age for those aged 60 or over who have a significant disability is also under review but not yet approved.

Impact Date

Enacted 1 January 2022 but taking effect in 2023.

Employer Implications/Action Needed

Employers should be aware that from next year employees will be able to retire three months earlier, compared to the current retirement age of 66 years and 7 months. This may require advance resource/organisational planning. They should also continue to monitor developments for older employees with a disability.

Employer Risk

N/A

Link

Flight limits, duty times and rest requirements for mobile workers in civil aviation

This Decree Law establish flight time limits, duty time and rest requirements for mobile employees in civil aviation.

Scope:

  • Commercial air transport operations performed with airplane by aircraft operators whose principal place of business is in Portugal.
  • Commercial air transport operations in the context of emergency medical services performed with helicopters by aircraft operators whose principal place of business is in Portugal.

This law complies minimum rules on the organisation of working time of mobile employees in civil aviation to protect the health and safety of aircrew members, in order to ensure flight safety, as provided for Directive 2000/79/EC.

Impact Date

14 April 2022

Employer Implications/Action Needed

Employers working in this sector should review and update any existing policies and procedures to ensure compliance with this change.

Employer Risk

N/A

Link

COVID-19 - Updated measures

As part of the ongoing and evolving response to Covid-19 the government has relaxed certain measures but, as a precaution, has retained a low-level state of alert across all territories until 5 May 2022 and various temporary measures, such as self-isolation in the event of infection and the wearing of masks in certain settings. These measures remain under review.

Impact Date

22 April 2022

Employer Implications/Action Needed

Employers should continue to monitor and adhere to the latest rule changes to they remain compliant.

Employer Risk

N/A

Links

COVID-19: extension of alert status

The Portuguese government extended the declaration of “alert situation” for the whole continental national territory to 31 May 2022.

Impact Date

6 May 2022

Employer Implications/Action Needed

N/A

Employer Risk

N/A

Link

Contact:

Inês Albuquerque e Castro
Sócia / Partner
+ 35 12 13 58 75 87
IACastro@eversheds-sutherland.net

Romania

Health and Safety measures

New Government health and safety measures include:

  • in the event of temporary work incapacity, the investigation procedure must be performed by the incapacitated individual’s employer. Previously, such investigation was performed by the company at which the event that caused the incapacity occurred;
  • employers must make available to the occupational medicine doctor within the competent Public Health Directorate all documents required to be included in the professional disease file, in line with the new legal provisions; and
  • in cases of pandemic or epidemic the investigation may be carried out by the occupational medicine doctor.

Impact Date

7 March 2022

Employer Implications/Action Needed

N/A

Employer Risk

Potential exposure to fines (amounting between RON 4,000 (approx. €809) and RON 8,000 (approx. €1,617)) if the new provisions are not observed.

Link

  • N/A
Employment support measures for Ukrainian citizens

Ukrainian citizens who have entered Romania as a result of the ongoing conflict (and do not request asylum protection) can be hired without any work authorization being required and without the requirement for a long stay visa. Further, with some exceptions, Ukrainian citizens that do not possess documents proving their professional qualifications or their work experience can be hired for a 12-month period if they provide a statement that they fulfil the qualification and experience requirements.

Impact Date

8 March 2022

Employer Implications/Action Needed

Employers planning to hire Ukrainian citizens should note the legal measures that adjust the usual requirements.

Employer Risk

N/A

Link

  • N/A
Medical leave and allowances for employees with cancer

New amendments provide for the introduction of medical leave and benefits for the care of patients with cancer. Individuals taking care of cancer patients (older than 18 years of age) who accompany the cancer patient to medical appointments and treatments prescribed by medical specialists shall benefit from medical leave (45 days term per year) and allowances, the latter being payable by the employer but reimbursable by the state. The form of medical certificate applicable to such cases is also being standardized and old-style forms will be phased out by the end of the year. Additionally, from 16 February 2023, both the employee and the patient are granted (at no cost to them):

  • one psychological evaluation meeting; and
  • five psychological conciliation meetings.

Impact Date

16 April 2022

Employer Implications/Action Needed

Employers should review leave policies to ensure compliance with the new leave requirements and have appropriate processes in place to pay the allowance and re-claim it from state funds.

Employer Risk

The penalty for non-compliance by the employer to grant leave has not yet been announced.

However, unjustified refusal to pay the allowance for the care of the patient with oncological diseases and/or incorrect calculation and payment of this allowance can attract a fine amounting between RON 3,500 (approx. €708) and RON 6,000 (approx. €1,213).

Link

  • N/A
Occupation classification

The Labour Code requires that each individual employment agreement must state the classification of occupation code for the job that the employee will perform. 7 new occupations have been added, namely:

  • creator/designer of clothing – COR code 311944
  • government communication expert – COR code 243224
  • e-government expert – COR code 242234
  • inspector of tracking and management of goods – COR code 261924
  • government communication manager – COR code 121311
  • online marketing specialist – COR code 243105
  • licensed radiology and imaging technician – COR code 226928.

Impact Date

25 May 2022

Employer Implications/Action Needed

Employers should use the appropriate classification code.

Employer Risk

N/A

Link

  • N/A
Electronic General Registry of Employees

Employees and former employees will have online access to the electronic General Registry of Employees to access their employment data. The access right is limited to visualizing, downloading and printing such employment data, as well as generating and downloading online excerpts from the General Registry of Employees. The access procedure is currently under development.

Impact Date

26 May 2022

Employer Implications/Action Needed

No action needed.

Employer Risk

N/A

Link

  • N/A
Tax-exempted increase of the salary rights

For a temporary period until 31 December 2022 and subject to certain conditions being fulfilled, an income tax and compulsory social contributions exemption may be available for an amount of RON 200 (approx. €40).

Impact Date

1 June 2022

Employer Implications/Action Needed

Employers should note the potential availability of the exemption.

Employer Risk

N/A

Link

  • N/A
Paternity leave

Increased paternity leave of 10 working days (increased from 5 working days) for fathers of newborn children is proposed. In addition, employees returning from paternity leave will have the right to receive no less favourable treatment, to return to work in an equivalent location under conditions that are no less favourable and to benefit from any improvement in the working conditions that would have applied had the leave not been taken.

Impact Date

Awaited. Pending procedure in the decisional chamber of the Parliament (chamber of Chamber of Deputies) having a final vote on the proposed reform.

Employer Implications/Action Needed

No action required at present. However, employers should review paternity leave policies to identify where changes may need to be made.

Employer Risk

Non-compliance with the provisions may result in exposure to fines. In case of labour audits, it may be assessed that the employer did not comply with the legal provisions on granting paternity leave to the eligible employees in accordance with the legal provisions in force. The labour inspectors could request to the employer to remedy this irregularity within a certain time frame and if not remedied, apply a fine between RON 5,000 and 10,000 (approx. €1,011 – 2,021).

Link

COVID-19 - Vaccine discrimination

A new ground of discrimination is proposed, based on vaccine status. Any form of exclusion, segregation, restriction, distinction, preference or differential treatment exercised over a person or categories of persons based on COVID-19 vaccination will be prohibited.

Impact Date

Awaited. Pending procedure in the decisional chamber of the Parliament (chamber of Chamber of Deputies) having a final vote on the proposed reform.

Employer Implications/Action Needed

No action required at present. However, employers may ultimately need to update internal policies / the internal regulation to take account of the extended legal obligation and any measures to mitigate the risk of discrimination.

Employer Risk

Potential exposure to fines if the legal obligation is not observed which may range between RON 3,000 – 100,000 (approx. €608 – 20,286) depending the legal obligation breached if the act does not constitute a criminal offence.

Links

New types of individual employment agreement

A draft law provides two new types of individual employment agreement:

  • “At request” agreement: the employee provides activity at the employer’s request, in the days and under the program established by the employer. The employee must be paid with salary corresponding to at least 32 working hours monthly. This type of individual employment agreement can be used only in the following work areas: agriculture, hunting and related areas; organizing exhibitions, fairs and congresses; publicity; and other leisure activities
  • Individual employment agreement with several employers: this arrangement can be used only for employers within the same group of companies. The employee can perform work for several employers, carrying out the same type of activity and duties.

Impact Date

Awaited, pending procedure. Currently registered at the Senate chamber of Parliament.

Employer Implications/Action Needed

No action needed.

Employer Risk

N/A

Link

  • N/A
Holidays

Currently, if a legal holiday falls on a non-working day such as a public holiday or a weekend, such holiday is not further compensated. A draft law proposes compensatory holiday to be granted in this situation, the additional day off to be granted on the following working day.

Impact Date

Awaited, pending procedure. Registered at the Senate chamber of Parliament.

Employer Implications/Action Needed

Employers should monitor the progress of the draft law. If the law is passed, employers should grant the compensatory day off, as applicable.

Employer Risk

If the law is passed, employers will risk breaching the Romanian Labor Code if they fail to allow compensatory holiday where a legal holiday falls on a non-working day.

Link

  • N/A

Contact:

Nadia Al Battah
Associate
+40 21 31 12 561
NadiaAlBattah@eversheds.ro

Slovakia

Organization of working time in transport

An amendment to legislation on the organization of working time in transport has been made. This includes daily and weekly time spent driving, minimum breaks and rest periods. The aim of the amended legislation is to achieve consistency within the European Union, as well as updating the rules on roadside inspections, inspections of transport undertakings and enforcement.

Impact Date

22 February 2022

Employer Implications/Action Needed

Employers working in the transport industry should familiarise themselves with the new obligations and update current practices where necessary.

Employer Risk

Employers risk fines in the event of breach of the legislation, including where an employer organizes the work of drivers in such a way that they are not able to comply with the maximum weekly working time.

Links

Employer financial support

The state support regime for part-time work has been implemented into the Slovak legislation on a permanent basis.

In summary, state support will be provided for the payment of compensation of employees' salary where the employer is unable to assign work to employees to the originallyagreed extent due to external reasons which the employer cannot affect or prevent, such as a supply chain failure. The support is 60% of the average hourly earnings of the employee, subject to a capped amount (calculated by applying a statutory formula). In 2022 the capped amount is €7.8138 per hour.

Impact Date

1 March 2022

Employer Implications/Action Needed

No action is needed. However, employers should note the availability of this additional option for managing an adverse economic situation, without the need to terminate employment.

Employer Risk

N/A

Link

Disabled employees

An employer may give notice of termination to a disabled employee only with the prior consent of the Office of Labour, Social Affairs and Family, otherwise the notice will be invalid. The Office of Labour, Social Affairs and Family is required to issue the decision regarding the termination of the employment within seven working days from the date of submission of the request for prior consent (or from the date of amendment of the request), failing which there is a presumption of consent.

Impact Date

1 April 2022

Employer Implications/Action Needed

Employers should review their termination processes and update them as required to ensure compliance. Employers should ensure that such processes include notifying the disabled employee regarding the submission of any request for prior consent.

Employer Risk

N/A

Link

  • N/A
Increase in the rates of meal allowance

The rates of meal allowances that apply for domestic business trips have increased. The increased rates are: €6 for a business trip with duration of 5 to 12 hours; €9 for a business trip with duration of 12 hours to 18 hours; and €13.70 for a business trip with duration over 18 hours.

The employer must contribute at least 55% of the price of the meal (i.e., at least €3,30), except business trips lasting 5 to 12 hours, where the contribution is up to 55% of the meal. Where the employer provides meal vouchers, the Labour Code establishes the minimum value of the meal voucher and a contribution of at least 75% of the meal (i.e., at least €4,50) during a business trip lasting 5 to 12 hours.

Impact Date

1 May 2022

Employer Implications/Action Needed

Employers should review their meal allowance arrangements to ensure that the new rates are adhered to.

Employer Risk

Employers that fail to comply with the meal allowance requirements risk fines of up to €100,000.

Link

Electronic medical confirmation regarding incapacity for work

Doctors will be allowed to confirm the temporary incapacity of the employee in electronic form, replacing the currently used 5-part form. The National Centre for Health Information will ensure the transfer of data from the doctor to the information system of the Social Insurance Agency, which will be automatically sent to the employer.

To facilitate the transitional period, a dual system of temporary incapacity for work will be in place: a paper and electronic form of temporary incapacity certificate will apply at the same time until 31 March 2023.

Impact Date

1 June 2022 – 31 March 2023 – transition period (both electronic and paper form possible), 1 April 2023 – only electronic form.

Employer Implications/Action Needed

N/A

Employer Risk

N/A

Link

Contact:

Jana Sapáková
Attorney
T: 421 2 3278 6411
jana.sapakova@eversheds-sutherland.sk

Switzerland

Maternity allowance (case law)

The Federal Supreme Court has upheld a ruling by the Administrative Court of the Canton of Bern that a parliamentarian loses entitlement to maternity allowance if she attends parliamentary and commission meetings while on maternity leave.

Impact Date

8 March 2022

Employer Implications/Action Needed

Employers should ensure that they have the necessary information about relevant political mandates of employees to correctly determine entitlement to allowances and benefits.

Employer Risk

Employers risk incorrectly paying maternity allowance and possibly non-statutory benefits which are tied to the statutory maternity allowance in the event of not having the necessary information about relevant political mandates of employees.

Link

Adoption leave

New statutory adoption leave for adopting parents will enter into force in Switzerland. Working parents who adopt a child under the age of four will be entitled to two weeks' paid leave.

The deadline for the optional national referendum against the new adoption leave expired at the end of January 2022 without a referendum against the amendment to the law. The exact date of entry into force is not yet known.

Impact Date

Awaited.

Employer Implications/Action Needed

Employers should monitor the progress of this statutory amendment and take planning actions to adjust leave policies and payroll arrangements and notify employees once the new leave becomes law.

Employer Risk

N/A

Link

  • N/A

Contact:

Michel Verde
Senior Associate
+41 44 20 49 090
michel.verde@eversheds-sutherland.ch

UK

Holiday pay entitlement (case law)

The Court of Appeal has recently confirmed an important change for backdated holiday pay claims. In addition, the court made some non-binding comments regarding when a series of unlawful deductions is broken which, whilst not enforceable, call into question current understanding.

Impact Date

1 February 2022

Employer Implications/Action Needed

The implications of this decision are potentially very significant for employers. The Court of Appeal has now found: (1) a worker may in principle carry over and accumulate holiday pay indefinitely both for leave which is taken but which was not paid, and for leave which is untaken; and (2) paid annual leave is a fundamentally important health and safety right and employers are required to set up and maintain a facility to enable paid leave to be taken.

Employer Risk

This decision is a further indication that employers should re-appraise the relationship with contractors they engage. Where misclassification has occurred, employers will not have embraced the taking of 20 days’ paid annual leave (by not having facilitated the taking of such leave). The position now is such that any untaken leave; or any leave which is taken but unpaid, will be able to be carried forward from year to year and compensable on termination.

Links

Agency worker equal treatment rights (case law)

The Court of Appeal has confirmed that the right of agency workers to be informed of any relevant vacant posts with the hirer does not include a right to be entitled to apply, and be considered, for vacancies on the same terms as employees recruited directly by the hirer.

Impact Date

17 February 2022

Employer Implications/Action Needed

The decision makes it clear that the The Agency Workers Regulations 2010 (“AWR”) provides only a right to information. According to the Court, that right is valuable as it gives agency workers the same chance as other permanent workers to find employment with the hirer. However, the Court reiterated that the AWR says nothing about the terms for recruitment, thereby providing helpful certainty for hirers.

Employer Risk

N/A

Link

Labour Relations Agency guidance on bullying and harassment (Northern Ireland)

The Labour Relations Agency (“LRA”), Northern Ireland’s equivalent of ACAS, in conjunction with the Equality Commission of Northern Ireland (“ECNI”) has issued new guidance on bullying and harassment in the workplace.

Impact Date

23 February 2022

Employer Implications/Action Needed

It is a helpful document for all employers to use and evaluate their own bullying and harassment policies as against the model policy set out by the LRA and ECNI.

Employer Risk

N/A

Link

Parental bereavement leave (Northern Ireland)

Legislation has brought parental bereavement law in Northern Ireland in line with Great Britain bygiving bereaved parents the right to two weeks’ leave, and in some circumstances, two weeks’ pay after the death of a child under the age of 18 or if a baby is stillborn.

Impact Date

21 March 2022

Employer Implications/Action Needed

Employers will need to provide the statutory leave of at least two weeks, which employees will be entitled to from the first day of their employment. Employees will become entitled to Statutory Parental Bereavement Pay of £151.97 per week or 90% of their average weekly earnings, whichever is lower, once they have been in employment with the employer for 26 weeks.

Employer Risk

Employers that fail to allow eligible employees to take parental bereavement leave and / or receive pay, or otherwise subjects them to a detriment for doing so, may bring a complaint to the Industrial Tribunal.

Link

National minimum wage increases

The national minimum wage rates have increased from £8.36 to £9.18 an hour for those aged 21-22 and from £8.91 to £9.50 an hour for over-23s.

Impact Date

1 April 2022

Employer Implications/Action Needed

Employers should ensure compliance with the updated minimum wage rates.

Employer Risk

The increase to minimum wage limits will bring more workers and employers within the scope of those limits and the legislation’s complex technical rules. Often, employers do not appreciate how their current payroll practices make them vulnerable to inadvertently breaching the rules. Enforcement action arising out of breaches is increasing, resulting in increased financial and reputational risk. To mitigate this risk, employers should audit pay systems and workplace practices to identify potential compliance gaps.

Link

Digital fit notes (Northern Ireland)

The for a doctor to complete and sign a fit note is removed. A doctor’s name will now only need to be on the fit note, and there is no requirement for the fit note to be completed in ink. This will allow more electronic fit notes to be issued.

Impact Date

6 April 2022

Employer Implications/Action Needed

Employers should be aware that they will begin to receive fit notes completed electronically.

Employer Risk

Employers should ensure their HR departments are familiar with the change and accept fit notes which are provided electronically.

Link

IR35

The moratorium for penalties for genuine errors ended on 6 April 2022.

Impact Date

6 April 2022

Employer Implications/Action Needed

Employers must ensure they have:

  • audited their contractors who provide services via an intermediary to ensure the correct assessment for IR35 has been made;
  • reviewed their internal procedures;
  • familiarised themselves with the IR35 principles to demonstrate “reasonable care”.

Employer Risk

N/A

Link

Code of Practice on “fire & re-hire” tactics

So-called “fire and re-hire” (involving dismissal and re-engagement on new terms, when contract changes cannot be agreed) has come under adverse scrutiny. The Government has announced that it intends to publish a new Statutory Code of Practice (Code) to detail practical steps, including the need for meaningful consultation, when employers change employment terms by dismissing and re-engaging employees. The details of the Code are awaited. In the meantime, Acas has published new guidance.

Impact Date

Awaited.

Employer Implications/Action Needed

Increasingly, “fire and re-hire” strategies risk reputational, employee relations and legal challenges. The Acas guidance states that employers should thoroughly explore all other options before deciding to dismiss and re-engage employees, and such strategy should only be considered as a last resort given that it is an “extreme step”. Employers should carefully consider the use of such strategies and, where adopted, should ensure that the process is carefully planned, including meaningful consultation. Employment Tribunals will be able to apply an uplift of up to 25% of an employee’s compensation if an employer unreasonably fails to comply with the Code where it applies.

Employer Risk

N/A

Link

Contact:

Diane Gilhooley
Partner
+44 161 831 8151
dianegilhooley@eversheds-sutherland.com

Middle East Global Update Banner

UAE

New Labor Law

The New Labor Law is now in force, which seeks to create a more flexible and competitive working environment in the UAE. It offers employees additional protections in respect of discrimination and harassment, new work models such as temporary and flexible work arrangements and increased leave periods. Significantly, where previously there was a choice between unlimited term and fixed term contracts, unlimited employment contracts must be converted into limited term employment contracts, thereby giving just one type of contract term arrangement.

Impact Date

2 February 2022

Employer Implications/Action Needed

In respect only of the conversation of unlimited employment contracts into limited term employment contracts, employers are given an initial grace period of one year to adjust their contractual terms. In all other respects, the New Labor Law applies from 2 February 2022. Therefore, employers should communicate with employees regarding the changes and make arrangements to review and update policies, procedures and contracts to reflect the New Labor Law.

Employer Risk

N/A

Links

Contact:

Geraldine Ahern
Partner
M: +97 150 220 5983
T: +97 12 494 3632
geraldineahern@eversheds-sutherland.com

Saudi Arabia

Saudization of marketing roles

A Ministerial Resolution has been issued, requiring at least 30% of marketing jobs in private sector establishments to be assigned to Saudi citizens in order to reduce unemployment rates and provide appropriate job opportunities according to skills, practical experience and educational qualifications.

Impact Date

8 May 2022

Employer Implications/Action Needed

The Resolution applies to every establishment that has 5 or more workers in the marketing profession. Applicable employers should note the requirements of the Resolution and adjust its employment practices accordingly.

Employer Risk

Failure to comply with the requirements of the Resolution risks penalties. In addition, companies may be prevented from renewing work licenses.

Link

Saudization of administrative roles

A Ministerial Resolution has been issued, requiring 100% of administrative roles (translation, secretarial, stock keeper, data entry) in private sector establishments to be assigned to Saudi citizens in order to reduce unemployment rates and provide appropriate job opportunities according to skills, practical experience and educational qualifications.

Impact Date

8 May 2022

Employer Implications/Action Needed

The decision applies to every economic entity in which translation, secretarial, stockkeeping and data entry professionals work. Applicable employers should note the requirements of the Resolution and adjust its employment practices accordingly.

Employer Risk

Failure to comply with the requirements of the Resolution risks penalties. In addition, companies may be prevented from renewing work licenses.

Link

Contact:

Anam Saleem
Principal Associate
T: +966 11 277 9836
AnumSaleem@aldhabaan-es.com

North America Global Update Banner

USA

Maryland – Minimum wage

For employees covered under the Secure Maryland Wage Act, the minimum wage increased to $13.50 per hour.

Impact Date

1 January 2022

Employer Implications/Action Needed

Employers should ensure they adhere to the new minimum wage requirement.

Employer Risk

Wage and hour law penalties and damages claims by employees are possible in the event of any breach.

Link

  • N/A
Illinois - Restrictive covenants

The Illinois Freedom to Work Act places additional limits on an employer’s ability to bind employees to restrictive covenants, including non-competition and non-solicitation agreements. The law generally codifies limitations on restrictive covenants from judicial opinions.

Impact Date

1 January 2022

Employer Implications/Action Needed

The law is not retroactive, however, going forward employers should ensure restrictive covenants with employees adhere to the requirements under the new law.

Employer Risk

Covenants may be found to be unenforceable and not subject to “blue pencilling”.

Link

  • N/A
Illinois – Minimum wage

The minimum wage rate increased to $12.00 per hour.

Impact Date

1 January 2022

Employer Implications/Action Needed

Employers should ensure that they adhere to the new minimum wage requirement.

Employer Risk

Wage and hour law penalties and damages claims by employees are possible in the event of any breach.

Link

  • N/A
California - Record Retention Period and Statute of Limitations under FEHA

California employers must retain candidate job applications and other employment records for 4 years, including personnel files.

Impact Date

1 January 2022

Employer Implications/Action Needed

Employers should ensure compliance with all new requirements.

Employer Risk

Possible penalties under state law.

Link

  • N/A
California – COVID paid sick leave

Employers with 25 or more employees are required to supplement paid sick leave, up to 80 hours for full time employees. New legislation in California requires sick leave to be made available to employees (including part-time employees) who are infected with COVID and are unable to work remotely, are receiving a vaccination for COVID, are seeking a medical diagnosis of COVID, are caring for someone with COVID, or are caring for a child whose school or childcare location is closed due to COVID.

Impact Date

19 February 2022 (retroactive to 1 January 2022) to 30 September 2022.

Employer Implications/Action Needed

The availability of the sick leave must be notified on employee pay slips. Employers must post a written notice of the availability of the leave. Compensation for leave is capped at $511 per day and $5,110 total per employee.

Employer Risk

Employers risk penalties if they fail to provide the paid sick leave and/or accurate wage statements.

Link

  • N/A
Colorado – restrictive covenants

A law has been passed in Colorado that subjects an employer to criminal penalties if the employer requires an employee to enter into an unlawful non-compete agreement (including non-solicitation provisions).

Impact Date

1 March 2022

Employer Implications/Action Needed

Employers operating in Colorado should review existing restrictive covenant agreements or other employment agreements with such terms to ensure compliance with the law.

Employer Risk

Employers that fail to comply with the new law risk criminal penalties, including up to 120 days’ imprisonment, a $750 fine or both.

Link

  • N/A
Ending mandatory arbitration of sexual assault and sexual harassment claims

President Biden has signed The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act that was passed by Congress on 23 February 2022. That Act prohibits the enforcement of mandatory pre-dispute arbitration agreements, as well as agreements prohibiting participation in a joint, class or collective action in any forum, regarding alleged conduct constituting sexual harassment or sexual assault.

Impact Date

3 March 2022

Employer Implications/Action Needed

Employers should review mandatory arbitration agreements and clauses (and other relevant agreements, including independent contractor agreements, customer, patient, and vendor agreements) to ensure that sexual harassment and sexual assault claims (under federal, state, and tribal law) are removed, including any employee waiver to participate in class action claims based on such allegations.

Employer Risk

Any mandatory arbitration agreements and clauses relating to sexual harassment and sexual assault will be deemed unenforceable.

Link

  • N/A
Illinois – Equal pay registration certificate

Employers with 100 or more employees in Illinois must apply for an Equal Pay Registration Certificate in order to comply with the new reporting requirements.

Impact Date

24 March 2022 – 23 March 2024

Employer Implications/Action Needed

Employers of 100 or more employees should comply and report the required employee information. Employers should also consider conducting pay audits.

Employer Risk

N/A

Link

New Jersey - Notice of Vehicle Tracking Devices

Private employers must provide employees with a written notice before using tracking devices on vehicles operated by employees (certain exclusions apply).

Impact Date

18 April 2022

Employer Implications/Action Needed

Employers should provide notice to employees and, as a best practice, obtain consent before tracking.

Employer Risk

Civil penalties may be up to $1,000 for the first violation and up to $2,000 for each violation thereafter.

Link

  • N/A
District of Columbia – Minimum wage

The minimum wage rate for employees in the District of Columbia will increase to $16.10 per hour.

Impact Date

1 July 2022

Employer Implications/Action Needed

Employers should ensure that they adhere to the new minimum wage requirement.

Employer Risk

Wage and hour law penalties and damages claims by employee(s) are possible in the event of any breach.

Link

  • N/A
Maryland – Paid family and medical leave law

Maryland enacted a new paid family and medical leave law that requires employers to provide eligible private sector employees with up to 12 weeks per year of paid time off for purposes related to caring for oneself or a family member. Eligible employees include employees who worked at least 680 hours in the prior 12 months.

Impact Date

1 January 2025

Employer Implications/Action Needed

Employers that must provide the leave are those that employ one employee in the state, although only employers with at least 15 employees, with limited exception, must contribute to the Program. Employers must provide notice to employees to benefits under the law beginning in 2023.

Employer Risk

Possible penalties for failure to comply.

Link

  • N/A

Contact:

Michael Woodson
Partner
T: +1 713 470 6121
michaelwoodson@eversheds-sutherland.com

Previous updates

February 2022

September 2021