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May 2021

Welcome to this second edition of our quarterly Global Employment and Labor Law Update for 2021.

With the ongoing pace of change in the global work environment, keeping appraised of new legal developments and maintaining visibility of those on the horizon is more important than ever. Drawing on the significant experience of our teams of lawyers around the world assisting clients with all aspects of employment law, this update provides a summary of those key changes.

In this quarter, emerging themes include developments in the regulation of new working arrangements and in the areas of working time and equality. Further, as the pandemic continues around the world, new legal requirements around testing, together with developments around paid leave for vaccinations, changes to government financial support and adjusted measures protecting the ongoing employment of workers.

Please do not hesitate to contact us if you wish to find out more about any development summarized in this update.

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

Asia Global Update Banner

South Africa

Subject Matter/Name of Development

Increase in annual earnings threshold under Basic Conditions of Employment Act, No 75 of 1997 (“BCEA”)

Summary

The annual earnings threshold has been increased to R211 596.30 (previously R205 433.30).

The earnings threshold impacts upon the application of various provisions of the BCEA, Labour Relations Act, 66 of 1995 (“LRA”) and the Employment Equity Act, 55 of 1998 (“EEA”). For example:

– Employees who earn above the threshold are excluded from certain provisions of the BCEA, including (but not limited to) those regulating ordinary hours of work, overtime and daily and weekly rest periods;

– Under the LRA, there are additional protections afforded to certain employees who earn below the threshold;

– Under the EEA, earnings being above or below the earnings threshold determines the route that can be used for arbitration/ adjudication.

Impact Date

1 March 2021

Employer Implications/Action Needed

Employers should take note of the increase of the earnings threshold and the consequent impact on the applicability of the relevant provisions of the legislation to their workforce.

Employer Risk

Failure to comply with the BCEA can result in action by the labour inspector and the Department of Employment and Labour. Failure to comply with the additional protections under the LRA can result in employees asserting their rights to these protections and unfavorable outcomes being imposed on employers. For example, an employee who is employed on a fixed-term contract without good cause may be deemed to be a permanent employee of the employer, or where an employee of a temporary employment service (“TES”) renders services to a client of the TES for longer than 3 months and earns below the earnings threshold, that employee could be deemed to be employed on an indefinite basis by the client.

Link

Government Gazette of the Republic of South Africa

 

Labour Relations Act 66 of 1995

Subject Matter/Name of Development Minimum wage increases
Summary

The National Minimum Wage Act, 2018 (NMWA) seeks to promote economic development among South Africa’s workers by setting minimum wages. The Act applies to all South African workers except those within the National Defence Force, the National Intelligence Agency and the South African Secret Service.

The minimum wage has been increased to R21.69 for each ordinary hour worked, subject to certain stipulated minimum wages in respect of other workers, as follows:

– farm workers: R21.69 per hour

– domestic workers: R 19.09 per hour

– workers employed on an expanded public works programme: R11.39 per hour

– workers who have concluded learnership agreements contemplated in section 17 of the Skill Development Act 1998: entitlement to the allowances contained in Schedule 2 to the Act

Impact Date

1 March 2021

Employer Implications/Action Needed

Employers must apply the new minimum wage.

Employer Risk

The level of the potential financial sanctions on employers for not complying with the NMWA depend on whether the breach is a first or second offence and the value of the underpayment/employee's monthly wage.

Link

Government Gazette Republic of South Africa

Contact:

Sandro Milo
Partner
+27 834 4403 20
sandromilo@eversheds-sutherland.co.za

Africa Global Update Banner

China

Subject Matter/Name of Development Work permits for foreign talent
Summary

The Shanghai Science and Technology Commission has released a notice (关于 持续完善外国人来华工作许可“不见面”审批(4.0版)大力吸引外国人才等有关事项的通知) clarifying the relevant matters regarding online approval for foreigners' work permits, with the aim of attracting more foreign talent to work in Shanghai. The relevant matters include, among others:

– applying the "Notification + Commitment" mechanism to qualified foreign sci-tech talents with no criminal record. This is a simplified process where the individual may directly sign their name on the application form to undertake that they have no criminal records, instead of submitting a notarized/legalized certificate of no criminal records;

– further loosening restrictions on age, academic degree and work experience for qualified foreign sci-tech talents; and

– allowing qualified foreign sci-tech talents who work in Shanghai under full-time employment to simultaneously take up a part-time job.

Impact Date

1 March 2021

Employer Implications/Action Needed

Employers may consult with the competent local authority on whether any foreign national it intends to recruit satisfies the relevant requirements for the facilitation under the notice.

Employer Risk

Under the "Notification + Commitment" mechanism, both the employer and individual shall be responsible for the authenticity of the individual's undertaking. In the case of any false undertaking, the relevant authority is entitled to cancel the work permit and may suspend the employer's application for work permits for its other foreign employees for a specified time period.

Subject Matter/Name of Development Anti-harassment
Summary

Multiple local authorities (e.g. the Women's Federation, the Education Bureau, the Public Security Bureau. etc.) in Shenzhen have jointly issued the Guidelines for Prevention of Sexual Harassment of Shenzhen Municipality (深圳市防治性骚 扰行为指南). This is the first-ever instructive document specifically governing anti-sexual harassment in the workplace. There are several important aspects to the guidelines, including:

– more detailed definition, scope, type and constitutive conditions of "sexual harassment"

– specified employers' obligations to prevent sexual harassment (e.g. adopting various approaches to prevent sexual harassment, establishing an internal mechanism to prevent sexual harassment, etc.)

– a sample internal rule on anti-sexual harassment

– that employers which have taken reasonable measures to prevent and handle sexual harassment may be exempt from the relevant liabilities arising from or related to sexual harassment

Impact Date

22 January 2021 (the document was made public on 24 March 2021)

Employer Implications/Action Needed

Employers in Shenzhen should establish or review existing internal mechanisms/policies for the prevention of sexual harassment in accordance with the guidelines.

Employer Risk

Employers may face civil liabilities in the event of any failure to take reasonable measures to prevent and handle sexual harassment in the workplace.

Subject Matter/Name of Development Human Resources businesses
Summary

The Beijing People's Government has released the Measures on Promoting Development of Human Resources Market in Beijing Municipality (北京市促进人力资源市场发展办法,). The Measures confirm, among others, the following:

– human resources business is incorporated into the “Guidance Catalogue of Highly-sophisticated Sectors of Beijing Municipality” and the government will adopt multiple industrial policies to support its development

– job applicants’ personal information is protected by law and any HR service provider shall take necessary measures to protect the same

Impact Date

1 May 2021

Employer Implications/Action Needed

Where an employer engages any HR service provider to post recruitment information, the employer must ensure the authenticity and legitimacy of the information/materials posted.

Employer Risk

Employers may face administrative penalties in the event of a failure to provide truthful and legitimate recruitment information to the HR service provider.

Contact:

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

Hong Kong

Subject Matter/Name of Development

Rest days (case law)

Summary

The Hong Kong District Court held that an employee who was not on shift but was required to answer the employer's call within one hour and be ready to work at any time, except for agreed annual leave periods, had not been granted any rest days. As the employment contract did not state whether rest days were paid, the employer was ordered to pay for all rest days for the duration of the employment.

Impact Date 22 January 2021
Employer Implications/Action Needed

Employers should clearly designate one statutory rest day for each seven day period. It is also advisable to state whether rest days are paid in the employment contract to avoid disputes.

Employer Risk

Employers could face litigation and financial penalties if they fail to designate rest days.

Link

N/A

Subject Matter/Name of Development

Reimbursement of maternity leave pay

Summary

Statutory maternity leave in Hong Kong has increased from 10 weeks to 14 weeks from 11 December 2020. Starting from 1 April 2021, employers can apply to the Reimbursement of Maternity Leave Pay Scheme ("RMLP Scheme") to seek reimbursement for this additional 4 weeks of maternity leave pay.

Impact Date

1 April 2021

Employer Implications/Action Needed

Employers are required to pay the additional 4 weeks of maternity leave on the normal pay day before seeking reimbursement. Employers wishing to apply to the RMLP Scheme should pay attention to the deadline (being 3 months after the last day of the concerned employee's 14-weeks' statutory maternity leave; or 3 months after the commencement date of the RMLP Scheme (on 1 April 2021)), and follow the relevant application procedures.

Employer Risk

Failure to comply with the application deadline and/or procedures may lead to rejection of the application and employers may not be able to receive reimbursement.

Link

The Reimbursement of Maternity Leave Pay Scheme goes live

Subject Matter/Name of Development

Breastfeeding discrimination

Summary

The Equal Opportunities Commission has published a guidance note in anticipation of a legislative change that will prohibit breastfeeding discrimination, including in employment.

Impact Date

19 June 2021

Employer Implications/Action Needed

Employers should review their policies and consider whether to introduce a breastfeeding policy to ensure compliance with the upcoming change.

Employer Risk

Employers could face a risk of discrimination claims in the event of any breach of the new law.

Link

N/A

Subject Matter/Name of Development

Holiday entitlement

Summary

Hong Kong employers will be familiar with two types of holidays: the 12 statutory holiday days, which are mandatory for all employees, and the additional five general holiday days (often referred to as public holidays) which apply to a limited group. A bill published on 5 March 2021 will increase the number of statutory holidays from 12 days to 17 days in five stages from 2022 to 2030 and align the two types of holidays.

Impact Date

In five stages from 2022 to 2030

Employer Implications/Action Needed

Employers providing only statutory holidays (rather than public holidays) will need to revise their policies to ensure that they grant all applicable statutory holidays.

Employers should also review their payroll systems to ensure that they accurately pay holiday in accordance with the daily average wage formula in the Employment Ordinance.

Employer Risk

Employers may face criminal and civil liabilities if they do not grant employees statutory holidays in accordance with the applicable statutory requirements.

Link

More Holidays in Hong Kong

Contact:

Jennifer Van Dale
Partner
+852 2186 4945
jennifervandale@eversheds-sutherland.com

Singapore

Subject Matter/Name of Development

COVID-19: Additional Measures for Newly Arrived Migrant Workers

Summary

To further reduce the risk of COVID-19 transmission from newly arrived migrant workers, the Multi-Ministry Taskforce (MTF) has decided to extend the post-Stay-Home Notice (SHN) 7-day testing regime to all newly arrived Work Permit and S Pass workers in Construction, Marine and Process (CMP) sectors from higher-risk countries/regions. Previously only those headed to dormitories needed to be subject to the additional 7-day testing.

Impact Date

5 February 2021

Employer Implications/Action Needed

Applicable during the COVID-19 period until further notice.

Employers will have to factor in the additional 7-day testing regime which will take place after the workers complete their 14-Day SHN when employing new Work Permit and S Pass workers.

Employer Risk

Employers should ensure compliance with the advisory for the 7-day additional testing regime, as any non-compliance may attract penalties such as criminal proceedings, work pass revocations and withdrawal of work pass privileges.

Subject Matter/Name of Development

COVID-19: Migrant Worker Onboarding Centre (MWOC)

Summary

All newly arrived Work Permit and S Pass holders from the construction, marine shipyard and process sectors entering Singapore from higher-risk countries/regions will be onboarded at the MWOC. The MWOC is a one-stop onboarding centre that integrates Stay Home Notice (and additional 7-day testing regime) with medical examination and the Settling-in Programme.

Impact Date

15 March 2021

Employer Implications/Action Needed

Applicable during the COVID-19 period until further notice.

Employers will have to factor in the additional costs of between S$750 to S$2,400 for onboarding its workers at the MWOC when employing Work Permit and S Pass workers in the relevant sectors.

Employer Risk

Employers should ensure compliance with the advisory for MWOC as any non-compliance may attract penalties such as criminal proceedings, work pass revocations and withdrawal of work pass privileges.

Subject Matter/Name of Development

COVID-19: Requirements for Safe Management Measures at the workplace

Summary

The tripartite partners (Ministry of Manpower, Singapore National Employers Federation, and National Trades Union Congress) have updated the workplace safe management measures to allow greater flexibility for businesses, while mitigating the risk of widespread COVID-19 transmission.

From 5 April 2021, up to 75% of employees may return to the workplace at any one time, up from the previous 50% limit.

Impact Date

5 April 2021

Employer Implications/Action Needed

Applicable during the COVID-19 period until further notice.

Although working from home is no longer the default mode of working, the Singapore government still encourages employers to continue with flexible working arrangements.

Employer Risk

Employers will have to review their workplace arrangements for business continuity purposes and should ensure compliance with the advisory for safe management measures at the workplace as any non-compliance may attract penalties such as a fine or imprisonment term.

Contact:

Sze-Hui Goh
Partner

+65 8382 8702
sze-huigoh@gtlaw-llc.com

Europe Global Update Banner

Austria

Subject Matter/Name of Development Home Office Regulations (Home Office Gesetz)
Summary

A Home-Office in the sense of the regulations exists if the employee "regularly performs work at home". Excluded from the definition are those cases in which work performance is agreed away from a home, such as in a co-working space or in another public place (coffee house, park, etc.).

The employer must provide the employee with the “necessary digital work equipment”, including computer/laptop, mobile phone and internet. The conditions for the termination of the Home-Office agreement can be contractually agreed (including a limited time period – Befristung- arrangement).

Impact Date

1 April 2021

Employer Implications/Action Needed

The new regulations do not provide a right to a Home-Office or an obligation to offer it. Employees and employers must therefore continue to reach an agreement on partial or complete Home-Office arrangements, which must be in writing.

Employer Risk

If the employer does not provide the employee with the "necessary digital work equipment" and the employee has to use their own equipment, an appropriate (lump-sum) compensation must be paid. Payments made by the employer are tax free for up to 100 days in the amount of up to EUR 3 per day (maximum EUR 300 per year).

Contact:

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

Belgium

Subject Matter/Name of Development

A criminal tribunal sanctions an employer for not preventing employee burn-out risks (case law)

Summary

The Brussels first instance criminal tribunal has issued a criminal fine of 8.000 EUR because a company did not take preventative measures in the context of Wellbeing at Work legislation. This criminal liability opens the door for civil damages. In this case, employees faced with too much work filed a request for a psycho-social intervention with the prevention service. The employer did not respond by taking the required preventative measures to avoid excessive work or to limit resulting damage, such as burn-out. An employee committed suicide after a period of burn-out.

Impact Date 24 February 2021
Employer Implications/Action Needed

Employers have an active role in safeguarding the wellbeing of their employees. If employees request the company to do an analysis of potential psycho-social risk and this reveals potential health and safety issues, the company must take preventative action.

The criminal tribunal condemned the employer for not acting.

Employer Risk

It is rather exceptional for a criminal tribunal to effectively intervene in a wellbeing at work context. It shows that the threat of criminal sanctions is not just theoretical.

Links

N/A

Subject Matter/Name of Development

New digital platform 'Working in Belgium' for the single permit procedure

Summary

Belgium will soon have a digital/electronic platform in order to facilitate information gathering and exchange by/ between the many different authorities involved in the single permit procedure. The purpose of this platform is to reduce the administrative workload, to facilitate information sharing and data exchange, and to reduce the processing time for applications.

Impact Date

16 March 2021 (following a cooperation agreement dated 5 March 2021)

Employer Implications/Action Needed

Employers will be able to process their single permit applications digitally via the platform 'Working in Belgium'.

The practical roll-out is planned in 3 phases:

(i) test phase in April 2021; operational after test phase;

(ii) integrated electronic exchange between the platform and the authorities concerned planned to be operational by end of June 2021;

(iii) it is anticipated that the scope of applications via the digital platform will be extended to all work permits, professional cards and single permits for an indefinite period in 2022.

Employer Risk

N/A

Links

N/A

Subject Matter/Name of Development

COVID-19 measures: new obligation for employers to provide certain data on a monthly basis

Summary

Employers have to register monthly the total number of employees in the company per business unit and the number of employees who perform a function that cannot be performed by teleworking from home. The registration is made via the electronic registration system made available by the National Social Security Office on the social security portal site.

Impact Date

27 March 2021 (first registration date was due on 6 April 2021)

Employer Implications/Action Needed

This registration concerns the number of employees on the first working day of the month and must be made by the 6th calendar day of the month. Registration must be carried out on a monthly basis.

Employer Risk

 Employers who fail to fulfill the obligation (in a timely manner) may be sanctioned with either a criminal fine between EUR 400 and 4,000; or an administrative fine between EUR 200 and 2,000.

Links

Registration web links:

Dutch

French

(Not available in English)

Subject Matter/Name of Development

COVID-19 vaccine: time off/leave for vaccination

Summary

If an employee is vaccinated during working hours, the employee is entitled to 'short leave' for the time taken to be vaccinated. This includes not only being vaccinated but also time spent travelling to the vaccination center. The right to short leave also applies to any second or multiple injections.

Impact Date

9 April 2021

Employer Implications/Action Needed

According to the rules, the employer is obliged to pay normal salary for this leave, which suggests that the salary for the hours of absence is calculated according to the legislation on public holidays.

If the vaccination takes place during working hours and the employee wants to make use of their right to short leave, they must inform the employer as soon as possible in advance of the absence, as soon as the time or schedule of the vaccination is known. Employers should therefore notify employees of this requirement. 

Employer Risk

Failure to adhere to the requirements could result in action for non-compliance with the regulations on short leave.

Links

N/A

Contact:

Stefan Corbanie
Partner
+32 27 37 93 51
stefancorbanie@eversheds-sutherland.be

Czech Republic

Subject matter/Name of Development

Special allowance for quarantined employees with COVID-19

Summary

If an employee is quarantined, they are entitled to wage compensation of up to 60% of their average salary. In addition, if quarantined due to COVID-19 or another infectious disease, the employee will receive an extraordinary contribution of CZK 370 per day, subject to the combined sum of the wage compensation and the allowance not exceeding 90% of the average salary of the employee.

The contribution must be paid to the employee by the employer. The employer will then be entitled to deduct the contribution amount from the premium paid by the employer for the employee each month.

Impact Date 1 March - 30 April 2021
Employer Implications/Action Needed

Internal procedures dealing with the payment of wage compensation should be adjusted, including to take account of the deduction of the contribution from the premium.

Employer Risk

A fine up to CZK 200,000 can apply in the event of breach of the requirements.

Link

Izolačka

Subject Matter/Name of Development

Mandatory COVID-19 employee testing

Summary

The general rule is that employers must arrange for employees to be tested so that no employee without a negative test older than 7 days is allowed to enter the workplace. Exceptions apply for employees who work from home, have undergone vaccination or had COVID-19 within the last 90 days.

Impact Date

The date from which the obligation applies depends on the size of the employer, as follows:

– employers with at least 250 employees – 3 March 2021

– employers with 50 to 249 employees – 5 March 2021

– employers with 10 to 49 employees – 17 March 2021

– employers with less than 10 employees – 28 March 2021

Employer Implications/Action Needed

The employer is obliged to ensure that only employees with a confirmed negative test in the last 7 days enter the workplace.

The employer can arrange testing through a company doctor, an external medical service provider or with an approved self-test (performed by a lay person).

Employer Risk

A fine up to CZK 500,000 can apply in the event of breach of the requirements.

Link

Průvodce samotestováním ve firmách

Subject Matter/Name of Development

Hiring a new employee after making organizational changes (case law)

Summary

The Supreme Court has ruled that if an employer dismisses an employee as a result of organizational changes (the job is no longer required) and, subsequently, the employer’s circumstances change, which could not have been anticipated, as a result of which it is necessary to hire a new employee for the same position, the original dismissal can still be valid. It is necessary to assess the circumstances that persisted at the time of the termination.

Impact Date 20 October 2020
Employer Implications/Action Needed

The decision is favourable for the employer, because the notice may still be valid.

Employer Risk None
Links

N/A

Subject Matter/Name of Development

Extension of the Antivirus Job Retention Programme

Summary

The Programme has been again extended until 30 April 2021.

An employer can receive state aid: up to 100% (or up to 80%) of wages paid (Mode A Plus or Mode A) in the event of a forced closure of an establishment; or up to 60% of wages paid (Mode B) where the employer is unable to provide work due to COVID-19-related economic difficulties.

For the months of March and beyond, the allowance can only be provided for employees whose length of service is at least 3 months as of the date of submission of the application for the subsidy.

Impact Date

1 March – 30 April 2021

Employer Implications/Action Needed

If a company has been affected by government measures regarding COVID-19 and work could not be assigned to employees, it may be able to apply for the subsidy, subject to time limitations and other conditions.

Employer Risk

The subsidy will not be granted to late applicants.

Links

Antivirus - podpora zaměstnanosti

Subject Matter/Name of Development

Government proposal: Determination of the minimum wage

Summary

Based on a new bill, it is proposed to derive the monthly minimum salary for a calendar year from the last year’s average gross monthly salary in the national economy. In this way, in should be ensured that the minimum salary in the current year attains approximately 45% of the current average gross monthly nominal salary in the national economy.

Impact Date

1 July 2021 (if passed by Parliament)

Employer Implications/Action Needed

Employers will be obliged to provide employees with at least the minimum salary determined according to the new rules. The minimum salary will change each year automatically.

If the automatic adjustment mechanism is introduced, it is expected that the minimum salary will increase by CZK 2,400 in 2022.

Employer Risk

A fine of up to CZK 2,000,000 may be imposed in the event of breach of the requirements.

Links

N/A

Subject Matter/Name of Development

Government proposal: Home office

Summary

Based on a new bill, enhanced regulation of remote working will be introduced. It will contain new rules such as: the specifics of a home office agreement, the possibility of scheduling work from home, a general ban on scheduling work between 8:00 p.m. and 6:00 a.m. and on weekends, provision of technical equipment and employees' explicit entitlement to reimbursement.

Impact Date

1 July 2021 (if passed by Parliament)

Employer Implications/Action Needed

The new rules should be considered when implementing a home office regime.

Employer Risk

A fine of up to CZK 2,000,000 may be imposed in the event of breach of the requirements.

Links

N/A

Subject Matter/Name of Development

Government proposal: Annual leave

Summary

Based on a new bill, the amount of annual leave will be increased from the current 4 weeks to 5 weeks per annum.

Impact Date

1 January 2022 (if passed by Parliament)

Employer Implications/Action Needed

Employers will need to ensure that they provide annual leave in accordance with the new rules.

Employer Risk

A fine of up to CZK 200,000 may be imposed in the event of breach of the requirements.

Links

N/A

Contact:

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

Denmark

Subject Matter/Name of Development Testing of migrant workers after entry into Denmark (COVID-19)
Summary

In accordance with a new Act and subject to some exemptions, employers who employ migrant workers must ensure that such workers are PCR-tested for COVID-19 after entry into Denmark.

This new Act builds on the existing right for employers to require employees to be tested for COVID-19 and to receive information regarding the test results.

Impact Date

2 February 2021

Employer Implications/Action Needed

Employers must be able to evidence in writing that a COVID-19 test has been performed, but it is not a condition to provide the result of the test. If a migrant worker is exempt from the test requirement, the employer must be able to evidence that exemption.

Employer Risk The Danish Working Environment Authority supervises compliance with the Act. An injunction may be imposed in the event of a breach and the employer risks a fine if it does not comply with the injunction. The amount of the fine is not specified in the Act.
Subject Matter/Name of Development Holiday contributions in connection with the temporary salary reimbursement scheme (COVID-19)
Summary A new Act has been passed regarding a right for companies to notify employees who are sent home with salary under the temporary salary reimbursement scheme to contribute either 1 days’ holiday, 1 day off in lieu, or another day off with or without salary per salary-compensating period. Employees may be required to contribute 1 day per salary-compensating month (28 calendar days), up to a maximum of 5 days.
Impact Date 2 February 2021
Employer Implications/Action Needed

Employers must notify employees at least 1 day in advance of the holiday contribution.

Employer Risk If employers do not comply with the notification requirements, the holidays contribution cannot be enforced.

Contact:

Anne Marie Abrahamson
Partner
+45 35252858
AMA@Lundgrens.dk

The EU

Subject Matter/Name of Development Significant new gender pay law proposed
Summary 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 Member States 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 in cooperation with workers’ representatives), a prohibition on pay history questions at recruitment and a greater focus on enforcement, including on disclosure during litigation and increased penalties.
Employer Risk If agreed and subject to the standards set by the Directive, it will be for each individual Member State to decide how rights should be implemented locally and 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 contain 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).
Subject Matter/Name of Development Whether stand-by time is working time (case law)
Summary In two recent decisions, the Court of Justice of the EU has provided further guidance on how to determine whether stand-by time is working time under the Working Time Directive. The definition of working time is critical to determining the minimum health and safety (H&S) requirements under the Directive, such as minimum rest periods and weekly working hours.
Impact Date Immediate
Employer Implications/Action Needed When assessing whether stand-by is working time, employers should evaluate whether the constraints they impose on stand-by workers are such as to affect, objectively and very significantly, their ability to freely manage their time and to pursue their own personal, family and social interests. Only legal, collective agreement or employer constraints are relevant (geographical and practical factors arising from the location may not be).
Employer Risk Employers should risk assess stand-by arrangements. For example, factors pointing towards stand-by constituting working time include: requiring the worker’s presence at a certain location during stand-by; short time-limits for a worker to respond when called upon; a high call-out frequency; a long duration of any work performed during stand-by; imposing other conditions when responding, such as a uniform and special equipment. Even if it is not working time, the Court stated that stand-by may constitute a H&S risk due to its frequency or length.
Subject Matter/Name of Development Initiatives on platform workers and on adequate minimum wages
Summary

The EU is consulting on taking measures to ensure that European competition rules do not prevent collective bargaining by vulnerable self-employed individuals in order to support such workers to challenge pay and working conditions.

A draft Directive which aims to provide a framework to improve the adequacy of minimum wages across the EU is awaiting feedback from the EU Parliament.

Impact Date 2022-24
Employer Implications/Action Needed

Collective bargaining initiative: businesses reliant upon platform workers and self-employed contractors should monitor the EU’s proposals as they develop.

Minimum wage initiative: the proposal does not set an EU-wide minimum wage. However, if agreed, employers should anticipate greater focus on any gaps in Member States’ minimum wage provision (whether by collective bargaining or otherwise), the level of such wages and how they are enforced.

Employer Risk

In the immediate term, no change. However, if both are agreed by the EU next year (2022), they should be risk-assessed by employers of lower paid employees and self-employed contractors.

The minimum wage initiative may be delayed, reflecting objections from both Denmark and Sweden reflecting concerns over how it will impact on their collective bargaining pay systems.

Subject Matter/Name of Development

New laws on whistleblowing, casual workers and work-life balance due for implementation

Summary

Member States will progressively implement the three outstanding employment directives on: predictable working conditions; work-life balance and whistleblowing (read our summary of each directive).

Impact Date

2021-2022

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. Furthermore, employers should anticipate significant change in whistleblowing regulation in some Member States.

Employer Risk

It will be for each individual Member State 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.

Contact

Constanze Moorhouse
Partner
+44 122 344 3803
constanzemoorhouse@eversheds-sutherland.com

Finland

Subject matter/Name of Development Supreme Court ruling on reasonable period to invoke grounds for dismissal (case law)
Summary

The Supreme Court has ruled that an employer had dismissed an employee within a reasonable period, even though the dismissal took effect approximately three and a half months after the employer became aware of the grounds for dismissal.

On the facts of this case, the employer had terminated the employment contract after the employee’s opportunity to be heard on the grounds for dismissal had been postponed twice at the employee’s request and the employee had submitted that participation in the postponed hearing was not possible due to illness.

Impact Date 10 February 2021
Employer Implications/Action Needed Employers should ensure that any termination of an employment contract is carried out in a timely manner. The assessment of a reasonable period to invoke grounds for dismissal will depend on the particular circumstances of the case.
Employer Risk Failure by an employer to complete a dismissal in a timely manner may lead to liability to pay compensation for unjustified termination of the employment contract.
Subject matter/Name of Development Supreme Court ruling on employer’s liability to pay indemnification under the Act on Co-operation within Undertakings (case law)
Summary The Supreme Court has ruled that an employer had to pay indemnification to employees where the employer had unilaterally changed an essential term of the employment relationships without negotiating the change in accordance with chapter 8 of the Act on Co-operation within Undertakings.
Impact Date 11 March 2021
Employer Implications/Action Needed The ruling clarifies that employers must comply with the provisions of chapter 8 of the Act on Co-operation within Undertakings regarding the co-operation procedure if an essential term of employment relationships is to be unilaterally changed.
Employer Risk Failure to comply with the provisions of chapter 8 of the Act on Co-operation within Undertakings regarding the co-operation procedure can result in an employer being ordered to pay indemnification.

Contact:

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

Germany

Subject matter/Name of Development Reduction of contractual holiday entitlement for each full month of a non-working period due to "zero" short-time work.
Summary The Düsseldorf Higher Labour Court (LAG Düsseldorf) ruled that holiday entitlement must be reduced by 1/12 for each full month of "zero" short-time working. The ruling considered that since the purpose of holiday is rest, this presupposes that it follows a period of work. Therefore, where no work is being carried out, holiday can be reduced by 1/12 for each full month of short-time work "zero".
Impact Date 12 March 2021
Employer Implications/Action Needed It is still not clear whether the reduction in holiday needs a declaration by the employer (in writing). Nonetheless, for clarity, employers should notify employees in writing that where zero short-time work arises, a corresponding reduction will be made to holiday entitlement.
Employer Risk A final clarification by the Highest Labour Court (BAG) is still pending. This is expected towards the end of the year.
Link

Update zur Kurzarbeit: Anteilige Kürzung des Urlaubsanspruchs

Subject matter/Name of Development COVID-19: Employer´s obligation to test employees
Summary In some federal states (e.g. Berlin) employers are obliged to offer employees who attend the workplace free COVID-19 testing twice a week by means of a point-of-care (PoC) antigen test (including those for self-application under supervision) and to organize these tests. Employees who have direct contact with customers or visitors are required to undergo this testing and to retain the results for a period of four weeks.
Impact Date From 1 April 2021 (in Berlin)
Employer Implications/Action Needed

Employees who attend the workplace only one day per week need only be offered testing for that day.

To satisfy the obligation to test staff attending the workplace, employers must:

– facilitate testing via PoC antigen tests (rapid test) undertaken by appropriately trained personnel of the employer or an authorized person

– supervise self-testing via (PoC) antigen tests to ensure the test is undertaken correctly. Enabling employees to perform self-testing at home is therefore not sufficient to fulfil the obligation

– issue a certificate of the test result upon request. This may only be issued by a person authorized and trained for this purpose.

Employer Risk

The costs for the tests are to be borne by the employers.

Employees must take the tests where they have any contact with customers. If employees do not submit to a test without good reason, they may face sanction under labour law, for example loss of pay. Since unreasonable refusal will also be in breach of the employee’s contractual obligation, they may also face potential disciplinary action or dismissal, depending upon the circumstances.

Link

FAQ zur Test(angebots-)pflicht in Unternehmen

Subject matter/Name of Development COVID-19: conditions for easier access to short-time work extended
Summary

In response to the ongoing pandemic, the German government has extended the special rules on short-time working. The simplified access to short-time working was previously valid until 31 March 2021, and will now be extended until 30 June 2021. This means that the rules will also apply to companies that introduce short-time working for the first time after 31 March or after an interruption of at least three months.

The extended rules apply, in particular, to more favourable conditions for the granting of short-time allowances. These include, among other things, the waiver of the requirement to build up new labour balances, the reduction of the minimum number of employees affected to 10% instead of 30%, and the possibility of also paying short-time allowance to temporary employees.

Impact Date 1 April 2021
Employer Implications/Action Needed No specific action needed.
Employer Risk No specific risk. From the employer's point of view, the extension of simplified access to short-time work will be advantageous.
Link

Erleichterter Zugang zur Kurzarbeit wird verlängert

Contact:

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

Hungary

Subject matter/Name of Development Mandatory minimum wage and the guaranteed minimum wage
Summary

The amount of the mandatory minimum wage and the guaranteed wage minimum has been updated as follows

mandatory minimum wage (minimum wage) for a full-time employee:

– if a monthly wage is applied, is HUF 167,400

– if a weekly wage is applied, is HUF 38,490

– if a daily wage is applied, is HUF 7,700

– if an hourly wage is applied, is HUF 963

guaranteed minimum wage for a full-time employee employed in a position requiring at least a secondary education or secondary vocational qualification:

– if a monthly wage is applied, is HUF is 219,000

– if a weekly wage is applied, is HUF 50,350

– if a daily wage is applied, is HUF 10,070

– if an hourly wage is applied, is HUF 1,259

Impact Date 1 February 2021 (its provisions applied only to the determination of wages due for the month of February 2021)
Employer Implications/Action Needed Employers should adjust wages where required to ensure compliance with the updated minimums.
Employer Risk Any suspected breach of the minimum wage requirements can result in labour inspection proceedings . The employment supervisory authority is obliged to impose a fine (up to HUF 10 million) if minimum wage provisions are infringed. The employees may also initiate court proceedings to claim compensation.
Subject matter/Name of Development New home-working regulation during state of emergency
Summary The Government has adopted a temporary regulation in connection with Teleworking during the state of emergency resulting from COVID-19. Employers and employees are allowed to deviate from provisions of the Hungarian Labour Code related to Teleworking during this period.
Impact Date 11 November 2020 until the end of the state of emergency (currently 23 May 2021, subject to any further extension)
Employer Implications/Action Needed During the state of emergency, employers are not obliged to carry out a risk assessment regarding the home-office workplace, or to examine working tools and the working environment for safety purposes. Instead employers should inform employees of the rules of healthy and safe working conditions, enabling employees to choose their workplace.
Employer Risk Employers are temporarily relieved of health and safety standards at home if home-working is agreed.
Subject matter/Name of Development Compensation for home-working costs during the temporary state of emergency
Summary Employers are able to support home-working with a tax free lump sum payment in lieu of employee expenditure (such as for water, gas, electricity, internet, etc.). Up to HUF 16,100 (around €45) per month may be paid. This payment is optional, not mandatory.
Impact Date 11 November 2020 until the end of the state of emergency (currently 23 May 2021, subject to any further extension)
Employer Implications/Action Needed To apply the tax exemptions, a home-working agreement should be concluded between the employee and employer.
Employer Risk

N/A

Subject Matter/Name of Development

New Act on Labour Inspection

Summary

A new Act on Labour Inspection, Employment Services and Grants entered into force in Hungary, which replaced the “old” Act on Labour Inspection from 1996.

Impact Date

From 1 March 2021

Employer Implications/Action Needed

The purpose of the new Act is to broaden the enforcement powers of supervisory authorities. The aim is to enhance the transparency of the economy by combatting undeclared work and ensuring the enforcement of minimum requirements in employment relationships.

Employer Risk

Under the new Act, authorities may monitor employers' compliance with the minimum requirements and use of employment-related subsidies and grants. Employment supervisory authorities also have a general power to perform labour inspections without permission or notice.

Contact:

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

Ireland

Subject Matter/Name of Development Probationary periods (case law)
Summary The Court of Appeal found that a right to fair procedures cannot be implied to a dismissal during an employee's probationary period (for anything other than misconduct), as to do so would negate the whole purpose of a probationary period.
Impact Date 16 February 2021
Employer Implications/Action Needed

Employers can take comfort from the Court's clear statements that:

(1) "an employer can terminate employment for any reason or no reason, provided adequate notice is given. This applies whether or not the dismissal occurs during the probationary period" and;

(2) "the principles of natural justice apply to cases involving dismissal for misconduct, but not to termination on other grounds".

This judgement affirms the value of a well drafted probationary clause in an employment contract.

Employer Risk

Despite this judgment, employers may wish to consider potentially wider employment relations issues. Employees who do not have the one year’s continuous service generally needed to bring a claim under the Unfair Dismissals Acts 1977 - 2015 may nonetheless consider making a complaint to the Workplace Relations Commission or to the Labour Court under the Industrial Relations Act, 1969.

Recommendations issued under the Industrial Relations Act 1969 are consistently to the effect that a fair procedure must be applied in cases of dismissal during a probationary period. While such Recommendations are not enforceable in law, they can give rise to employment relations issues, particularly in unionised environments. Labour Court Recommendations can also give rise to publicity, as the names of the parties are not anonymised.

Subject Matter/Name of Development

Family leave

Summary

The Family Leave and Miscellaneous Provisions Act 2021 Act entitles working parents to an additional three weeks' parent's leave for each parent. Parents are now entitled to take a total of five weeks' paid leave in the first 2 years of their child’s life or adoption placement.

The 2021 Act also amends the Adoptive Leave Acts 1995-2005 so that jointly adopting couples can decide which of them will avail of adoptive leave. Previously only the adopting mother could take adoptive leave; whereas an adopting father could only avail of adoptive leave where he was the sole adopter or where the adopting mother had died. This amendment also rectifies a previously anomaly in the law which meant that jointly adopting male same-sex couples were unable to avail of adoptive leave.

The parent who is not availing of adoptive leave, will be entitled to leave under the Paternity Leave and Benefit Act 2016.

Impact Date

25 March 2021

Employer Implications/Action Needed

Employers should update their family leave policies to reflect the most recent changes in parent’s leave and adoptive leave, and also capture the increase to parental leave in September 2020.

Employer Risk

Employees may take a claim to the Workplace Relations Commission if they are not afforded the relevant family leave entitlements.

Subject Matter/Name of Development

Right to disconnect

Summary

The Workplace Relations Commission Code of Practice for Employees and Employers on the Right to Disconnect (Code) states that the right to disconnect is an employee’s right to be able to disengage from work and refrain from engaging in work-related electronic communications, such as emails, telephone calls or other messages, outside normal working hours. There are three key elements:

1. A right not to routinely perform work outside of normal working hours (including refraining from engaging in work-related emails, calls or messages).

2. A right not to be penalised for refusing to attend to work matters outside of normal working hours.

3. The duty to respect another person’s right to disconnect (e.g. by not routinely emailing or calling outside normal working hours).

Impact Date

1 April 2021

Employer Implications/Action Needed

Employers should consider undertaking a review of their working time policies and contract clauses and consider implementing a Right to Disconnect Policy addressing issues surrounding the right to disconnect through awareness and training where required.

Employer Risk

Failure to follow the Code will not be an offence, although Irish employment legislation provides that in any proceedings before a court or the WRC, a code of practice will be admissible in evidence. Any provision of the Code which appears to be relevant to any question arising in the proceedings will be taken into account in determining that question.

Contact:

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

Italy

Subject Matter/Name of Development Ban on dismissals extended
Summary

A ban on dismissals due to economic reasons (individual or collective) has been extended to 30 June 2021. The ban does not apply in the event of business closure (without any partial continuation or transfer to a third party).

The ban is also extended further, to 31 October 2021, for employers utilising furlough (i.e. Cassa Integrazione Guadagnai in Deroga (CIGD) or Assegno Ordinario) for reduction or suspension of working activity due to COVID-19.

Impact Date 1 January 2021 - 30 June 2021
Employer Implications/Action Needed Termination of employment remains possible notwithstanding the ban if agreement is reached with the trade union and the employee, or if the dismissal is unrelated to economic circumstances (e.g. is for reasons of misconduct).
Employer Risk A dismissal in breach of and during the period of the ban will be deemed null and void.
Subject Matter/Name of Development

Working from home

Summary

Until 30 April 2021 employers can implement working from home in the absence of the individual agreement of the employee.

Impact Date

Until 30 April 2021

Employer Implications/Action Needed

This change will facilitate working from home in light of the COVID-19 pandemic. However, employers should bear in mind that they are still required to provide employees with INAIL, information regarding health and safety whilst working from home.

Employer Risk

N/A

Subject Matter/Name of Development

Vulnerable workers

Summary

The period during which vulnerable workers (i.e. those certified as having conditions resulting in depressed immunisation) can be subject to exceptional health reviews instigated by the employer in order for a medical professional to determine their suitability to perform working activities, is extended to 30 April 2021. In addition, until 30 June 2021, vulnerable workers can undertake different roles within the same category/classification or specific training activities, and/or can work from home. Where work cannot be performed from home, the vulnerable worker can remain absent on medical grounds and the absence will not be counted for the purpose of the grace period (periodo di comporto).

Impact Date

1 January to 30 April 2021 and to 30 June 2021

Employer Implications/Action Needed

Where an employer does not have a competent doctor already appointed, it can appoint one for the emergency period or can make a request to INAIL, which will make available its competent doctors.

Employer Risk

Employers who breach the health surveillance at workplace requirements may be subject to penalties.

Subject Matter/Name of Development

Furlough

Summary

In the event of reduction/suspension of business activity due to the COVID-19 pandemic, businesses may apply for a further period of furlough: (i) 28 weeks to be used in the period between 1 April 2021 and 31 December 2021 in the form of Cassa Integrazione Guadagni in Deroga (CIGD) or Assegno Ordinario (FIS) support measures; and (ii) 13 weeks to be used in the period between 1 April 2021 and 30 June 2021 in the form of Cassa Integrazione Guadagni Ordinaria (CIGO).

Impact Date

1 January 2021 to 31 December 2021

Employer Implications/Action Needed

Employers should ensure that applications for support measures are made in the correct format and for the correct periods.

Employer Risk

N/A

Subject Matter/Name of Development

Fixed-term employment contracts

Summary

Until 31 December 2021 it is possible to renew or extend once and for a maximum of 12 months fixed-term contracts in the absence of mandatory reasons (so-called causali).

Impact Date

1 January 2021 to 31 December 2021

Employer Implications/Action Needed

Employers should note that after 31 December 2021 the extensions/renewals of fixed-term employment contracts will be subject to ordinary rules. The maximum overall duration of any fixed-term contract is 24 months.

Employer Risk

N/A

Subject Matter/Name of Development

COVID-19 vaccination – data protection

Summary

A Q&A document issued by the Data Protection Authority regarding COVID-19 vaccination has confirmed that the vaccination data of employees cannot be lawfully required/obtained by employers. Only a competent doctor may know the relevant data and process it to assess the ability of employees to perform work activities.

Impact Date

17 February 2021

Employer Implications/Action Needed

Employers should note the guidance issued by the Data Protection Authority and ensure that requests are not made to employees for data regarding vaccination. At present, employers cannot require employees to be vaccinated, although they may promote voluntary vaccination.

Employer Risk

Employers risk data protection breaches if they do not adhere to the Data Protection Authority's guidance. Data protection breach may entail also consequent administrative sanctions to be paid by employers.

Subject Matter/Name of Development

COVID-19: Update of anti-contagion National Protocol

Summary

This Protocol ensures adequate levels of protection for workers at workplaces. In particular, it recommends measures such as maximising working from home; encouraging the taking of holiday or paid leave; suspending the activity of non-essential departments; encouraging sanitation operations; limiting movement within sites; and the use of respiratory protection devices in common areas. In addition, the Protocol regulates matters such as information for anyone entering the company premises; temperature checking; cleaning/sanitation procedures; and the use of PPE.

Impact Date

6 April 2021

Employer Implications/Action Needed

Employers should familiarise themselves with the Protocol and take steps to adopt the measures.

Employer Risk

Breach of anti-contagion Protocol may result in administrative sanctions and the suspension of business activity until the health and safety protective measures are restored.

Subject Matter/Name of Development

National Workplace Vaccination Protocol

Summary

Employers can implement a company program for the creation of vaccination points at the workplace, offering voluntary vaccination to employees. Any such program will be regulated at regional level, taking into account the number of vaccines available and other requirements, such as the program being based in the territory of the Health Authority providing the vaccines and being suitably organised and resourced to operate safely and effectively (including providing for the recording of vaccinations).

Impact Date

6 April 2021

Employer Implications/Action Needed

Once the competent Health Authority has confirmed the availability of vaccine doses and checked if the requirements are met, the competent doctor or the health personnel identified by the employer will be responsible for collection and distribution. Using forms made available at the national level, the company doctor or health personnel must provide employees with adequate information on the benefits and risks associated with vaccination and on the specific type of vaccine as well as obtain the employee's consent to receive the vaccine.

Employer Risk

N/A

Contact:

Marcello Floris
Partner
+39 02 892 871
marcellofloris@eversheds-sutherland.it

Valentina Pomares
Partner
+39 02 892 871
valentinapomares@eversheds-sutherland.it

Lithuania

Subject Matter/Name of Development

Job-related training (case law)

Summary

The Supreme Court of Lithuania has ruled that an employee’s failure to undergo periodic training in order to extend a required driving qualification did not constitute gross misconduct. In this case the parties to the employment contract did not agree that it was the employee’s duty to undergo periodic training and the employer did not assist the employee in undergoing the training.

Impact Date

24 February 2021

Employer Implications/Action Needed

Employers should review relevant employment contracts with drivers and local regulatory acts. Where a specific valid qualification is required for the job, an employer should assist its employees to undergo training and acquire or extend the required qualification, including, potentially, financial support.

Employer Risk

Dismissal for a failure to undergo required job-related training, without assisting the employee with the training, may be deemed unlawful.

Subject Matter/Name of Development

Proposed new law regarding the right to disconnect

Summary

An amendment to the Labour Code of the Republic of Lithuania is proposed, to provide that an employee who works remotely (including a teleworker) has a right to disconnect and be uncontactable by an employer after working hours, at night, on rest days and bank holidays, unless the nature of their job requires otherwise.

Impact Date

1 July 2021

Employer Implications/Action Needed

The draft law has not yet been adopted. The new provision would require all employers to refrain from contacting employees after hours.

Employer Risk

Sanctions for a breach of this requirement not provided yet.

Subject Matter/Name of Development

Proposed new law regarding employee pay methods

Summary

An amendment to the Labour Code of the Republic of Lithuania is proposed to provide that salaries and other employment-related payments must be paid by transfer to a payment account specified by the employee.

Impact Date

1 January 2022

Employer Implications/Action Needed

The draft law has not yet been adopted. The new provision would require all employers to abandon cash payments.

Employer Risk

Sanctions for a breach of this requirement not provided yet.

Contact:

Jonas Saladžius
Partner
+370 5 239 2391
jonas.saladzius@eversheds.lt

Netherlands

Subject Matter/Name of Development

Legislative proposal: working from home

Summary

The Dutch Council provided an urgent response to the Government's "Work where you want" legislative proposal, to facilitate consideration of a stronger legal position for employees wishing to request to work from home, especially given the COVID-19 pandemic. The legislative proposal is currently pending in the House of Representatives. It is not yet clear if the "Work where you want" Act will be adopted, and if so, when.

Impact Date

Currently unknown

Employer Implications/Action Needed

If adopted, the Act will amend the Flexible Working Act, limiting the grounds on which an employer can refuse an employee’s request to work from home.

Employer Risk

Failure to comply risks employee disputes/litigation.

Subject Matter/Name of Development

Status (case law)

Summary

The Court of Appeal of Amsterdam held that the relationship between Deliveroo and its delivery drivers was one of employment even though the drivers were formally engaged as independent contractors. Taking account of the factual circumstances, including the ‘fee’ arrangements and that the drivers were controlled through algorithmic management, the Court of Appeal concluded that the drivers were working under a contract of employment.

Impact Date

16 February 2021

Employer Implications/Action Needed

No immediate action is required. However, companies should take into account the risks associated with engaging independent contractors, including that this topic is currently subject to public scrutiny in the Netherlands.

Employer Risk

Financial penalties and reputational risk in the event of misclassification.

Subject Matter/Name of Development

On-call contracts

Summary

Employers must offer on-call employees fixed hours once they have been engaged for 12 months and must do so within 2 months of that anniversary (the 'statutory commencement date').

Impact Date

1 July 2021

Employer Implications/Action Needed

Employers will have limited opportunity to delay the introduction of fixed hours once an engagement has lasted 12 months.

Employer Risk

Failure to offer an on-call employee a fixed number of working hours by the statutory commencement date will lead to the obligation for the employer to pay additional pay from that date (if claimed by the employee) and risks payment of the statutory increase of up to 50% for late salary payments.

Subject Matter/Name of Development Enforcement action regarding disguised employment.
Summary

Following the roll-out of a pilot online employment status tool, by which employers can assess the status of an assignment (i.e. an employment agreement or an agreement for services), the government is expected to decide if and from when it will re-start enforcement action against disguised employment.

Impact Date

October 2021 (it is currently expected that phased enforcement will restart on this date at the earliest)

Employer Implications/Action Needed

Employers can use the pilot to assess the risk of challenge to independent status and a potential liability to pay (wage) taxes and/or social security contributions resulting from "disguised employment" and/or "misclassification".

Employer Risk

As the results of the online module are merely indicative, employers cannot rely on them entirely to determine status and may still be held liable to pay (wage) taxes and/or social security contributions where an independent contractor is found subsequently to have "disguised employment". Employers should further note that once enforcement against disguised employment restarts, this will no longer be limited to situations in which companies do not follow the directions from the Dutch Tax Authority and/or in cases of malice.

Contact:

Ingrid van Berkel

Wijnand Blom

Partner Partner
+31 10 24 88 04 6 +31 20 5600 608
ingridvanberkel@eversheds-sutherland.com wijnandblom@eversheds-sutherland.nl

Norway

Subject Matter/Name of Development Threshold for dismissal during an employee's trial period
Summary

The Supreme Court held that the threshold for dismissal of an employee during their trial period is lower than after its expiry. During recruitment interviews, the employer is responsible for supplying information that is relevant to the vacancy, although the employee must not provide directly misleading information. If the employee has misrepresented themselves during the interview process, this may be grounds for dismissal, but their misrepresentation must be clearly in bad faith.

Impact Date

18 March 2021

Employer Implications/Action Needed

The employer has the primary responsibility for clarifying the role specifications and should be thorough when checking the employee's credentials and background. Employers should ensure interview questions are lawful, for example, the employer must not enquire about a candidate's religion, pregnancy, ethnicity, disability, or sexual orientation. If dismissal can be justified, and is necessary, it should be notified during the trial period.

Employer Risk

N/A

Contact:

Sten Foyn

Partner
+47 928 35 278”278
s.foyn@haavind.no

Poland

Subject Matter/Name of Development Pandemic-related disciplinary dismissal
Summary

The court of the second instance found that a dismissal was justified, with the conditions for dismissal without notice (disciplinary dismissal) being met, where an employee concealed information about having travelled abroad during a period of heightened epidemic risk. The court found that the withholding of information about the foreign trip amounted to endangerment of other employees.

Impact Date

29 January 2021

Employer Implications/Action Needed

No immediate implications for or action needed by employers. It is worth noting, however, that in similar cases the nature of the workplace, its organisation and the actual risk actually generated by the employee's behaviour will also need to be taken into account.

Employer Risk

N/A

Subject Matter/Name of Development Quarantine restrictions
Summary Quarantine is now mandatory for all international travellers entering Poland. However, for those travelling within the Schengen zone, an exemption is available where a negative COVID-19 test result was received within the preceding 48 hours earlier. Furthermore, the quarantine can be lifted if a negative COVID-19 test result is obtained while in Poland, using either an antigen or RT-PCR (molecular, genetic) test.
Impact Date From 30 March 2021
Employer Implications/Action Needed Employers should monitor the latest restrictions and exemptions from quarantine in order to effectively manage the international business trips of their employees. Moreover, a quarantining employee is automatically placed on sick leave unless the employer allows the employee to perform work during that period.
Employer Risk

N/A

Subject Matter/Name of Development Proposals to introduce remote working into the Labour Code
Summary The government is working on an amendment to the Labour Code (based on COVID-19 rules) which would permanently introduce remote working into the Labour Code, amending the so-called “telework” rules.
Impact Date The draft is expected to be presented shortly, with the new rules applicable once COVID-19 restrictions are lifted
Employer Implications/Action Needed No draft has been published yet, therefore no actions are currently required.
Employer Risk Currently unknown (no available draft).

Contact:

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

Romania

Subject Matter/Name of Development COVID-19 – support and measures for stimulating employment growth
Summary

A new legal right for employers to temporarily reduce the working hours of employees under certain conditions, up to a maximum of 80% of the daily, weekly or monthly duration stipulated in the individual employment contract. All the other rights of the employees remain in force, as per the provisions of the individual employment agreement or the collective bargaining agreement.

The new right applies during the relevant period (state of emergency/alert/siege) and thereafter for a period of up to 3 months.

Impact Date 8 April 2021
Employer Implications/Action Needed Financial and operational impact should be further assessed prior to the support measure being used. Employers should also note that employees affected by the measures may not work overtime and, while working hours are reduced, employers are not permitted to initiate collective dismissals.
Employer Risk N/A
Subject Matter/Name of Development Leave and monthly allowances for raising children
Summary

Emergency Ordinance no. 26/2021 amends and supplements GEO no. 111/2010 on leave and monthly allowances for raising children.

The most important proposed amendments are as follows:

– the Government approved the increase of the insertion (return to work) incentive, from RON 650 (approx. EUR 132) to RON 1,500 (approx. EUR 305) if the parent returns to work before the child is 6 months’ old, or 1 year in the case of a disabled child. This allowance is available until the child reaches the age of 2 years (or 3 years in the case of a child with disabilities)

– an insertion incentive of RON 650 (approx. EUR 132) is granted for:

(i) parents who return to work at any time after the child reaches the age of 6 months (1 year in the case of a disabled child), until the child reaches the age of 2 years (3 years in the case of a disabled child)

(ii) parents who return to work after completion of their parental leave, until the child reaches the age of 3 years (4 years in the case of a child with disabilities)

– an insertion incentive of RON 650 (approx. EUR 132) is also introduced for parents returning to their professional activities during the period in which they would be entitled to benefit from childcare leave in relation to a child with disabilities aged between 3 and 7 years

Impact Date
The law is still in draft
8 April 2021
Employer Implications/Action Needed No immediate action needed, but note that in certain situations during the period in which the incentive is payable, the employer is prohibited from terminating the employment relationship.
Employer Risk N/A
Subject Matter/Name of Development Government proposal: changes to the framework model of the individual employment contract
Summary A draft law is currently being debated, proposing an amendment to the mandatory minimum provisions of the national framework for individual employment contracts. The change would insert a new obligation for the employer to inform the employee, at commencement of employment, about the employee’s entitlement to join a privately managed pension fund.
Impact Date Not yet known
Employer Implications/Action Needed Potential obligation for employers to update the individual employment contracts of current and future employees.
Employer Risk None currently.

Contact:

Mihai Guia
Partner
+40 21 31 12 56 1
mihaiguia@eversheds.ro

Russia

Subject Matter/Name of Development

Paid annual vacation schedules

Summary

The Federal Labor Office has clarified that annual vacation schedules should show the monthly distribution, within the calendar year, of paid annual vacation for employees of all departments or divisions within an organization. The Federal Labor Office further confirmed that the schedule of vacations is a local normative act (local policy).

Impact Date

15 February 2021

Employer Implications/Action Needed

Employers should take these clarifications into consideration.

Employer Risk

Employers may face administrative liability for violation of employment legislation.

Subject Matter/Name of Development

Details of employment in an electronic employment record

Summary

Amendments have been made to the Law on Personal Identification Accounts, providing for registered persons to be able to ask Pension Fund bodies to include information on employment for periods of work up to 1 January 2020 in their personal account.

Impact Date

7 March 2021

Employer Implications/Action Needed

Employers should ensure any electronic employment information recorded in their records is accurate.

Employer Risk

Employers should be aware of the possibility of inspections by the Labour Inspectorate in the case of discrepancies.

Subject Matter/Name of Development

Vacation times for employees with large families

Summary

A new federal law has updated the provisions for granting annual leave to employees with three or more children. Previously, only employees with three or more children under the age of twelve were given the benefit of choosing a vacation time convenient to them, which the employer could not refuse. Now the range of beneficiaries has been expanded: employees with three or more children under the age of eighteen will have the right to choose a convenient vacation time until their youngest child reaches the age of fourteen.

Impact Date

9 March 2021

Employer Implications/Action Needed

Employers should update vacation policies to take account of this change.

Employer Risk

An employer will face administrative liability for illegal refusal of vacation.

Subject Matter/Name of Development

Trial of unified identification and authentication system

Summary

The Government has commenced a trial to identify and verify information about users of internet resources via a unified identification and authentication system. This will make it easier to remotely enter into contracts, select staff, and perform other legally significant actions with those who are registered on this system.

Impact Date

From 1 April 2021 to 1 July 2022.

Employer Implications/Action Needed

Any citizens, sole proprietors or legal entities will have the right to participate in the Government trial, although how to join has not yet been confirmed.

Employer Risk

N/A

Subject Matter/Name of Development

Moral harm compensation

Summary

Draft legislation has passed its third reading which will establish that disputes about compensation for moral harm due to unlawful action (or inaction) by employers will only be considered by the courts. There will be two options for employees when they wish to claim compensation: (1) to combine this with a claim for restoration of rights; or (2) making a claim within 3 months after the entry into force of a court decision, which fully or partially restored the rights.

Impact Date

16 April 2021

Employer Implications/Action Needed

If the violation of the employee's rights has already occurred, there are certain steps that employers can take to mitigate any court action and/or penalty, including rectifying the violation. This may avoid court action or reduce the element of employer fault when calculating compensation.

Employer Risk

Usually, compensation for moral harm caused to an employee takes the form of a financial penalty on the employer.

Subject Matter/Name of Development

Special register of labor protection requirements

Summary

The Federal Service for Labor and Employment (Rostrud) will include mandatory labor protection requirements on an electronic public register to ensure greater transparency of labour protection requirements for employees.

Impact Date

After 30 April 2021

Employer Implications/Action Needed

Employers should ensure that they adhere to all labor protection requirements.

Employer Risk

Employers may face administrative liability and financial penalties.

Subject Matter/Name of Development

Employee first aid kit requirements

Summary

New requirements for the complete set of medical products for first aid kits for employees include disposable medical masks and gloves, a Mouth-Device- Mouth artificial respiration device, medical gauze and other specific equipment (including specific number of items and sizes).

Impact Date

1 September 2021

Employer Implications/Action Needed

Employers should ensure first aid kits meet the new requirements. The use of existing first aid kits is permitted until 31 August 2025, unless they expire earlier.

Employer Risk

For violation of employment legislation employers may face administrative liability.

Contact:

Olga Chirkova
Senior Associate
+78 12 36 33 37 7
olga.chirkova@eversheds-sutherland.ru

Slovakia

Subject Matter/Name of Development

Right to disconnect

Summary

An amendment to the Labour Code provides employees with the right to disconnect (right to be offline). Employees performing domestic work and telework have the right to disconnect outside working hours, during obstacles at work and during holidays.

Impact Date

1 March 2021

Employer Implications/Action Needed

Employers should ensure that the taking of the right to disconnect is not considered a disciplinary issue. Internal policies should be updated to reflect the new right.

Employer Risk

A fine in the maximum amount of EUR 200,000 issued by the Labour Inspectorate may be imposed in the event of a breach of the requirements of the Labour Code. Should the violation continue, employee disputes may arise and they may even lead to litigation.

Subject Matter/Name of Development

Amendments to the regulation of domestic work/telework

Summary

The extent to which domestic work/telework may be performed outside an employee´s household may be agreed between the employer and employee and that place of work can be determined unilaterally and autonomously by the employee. The employer has responsibility for scheduling the working time for domestic work/telework, unless expressly agreed otherwise by the parties. Employees performing domestic work/telework must be allowed to enter the workplace in order to prevent isolation and ensure their equal treatment. Employees have a right to be reimbursed for their increased costs due to the use of their own equipment.

Impact Date

1 March 2021

Employer Implications/Action Needed

Employers must ensure compliance with the new law, including providing reimbursement for the employees using their own equipment; ensuring equal treatment between employees working remotely and those working from the workplace; and preventing isolation of employees performing domestic work and telework.

Employer Risk

As above (financial and litigation risk in the event of breach of the Labour Code).

Subject Matter/Name of Development

Parental rights

Summary

An amendment to the Labour Code introduces the concept of an employee permanently caring for a child. That concept includes an employee who personally takes care of their own child, an employee with joint custody with another parent and an employee that takes care of a child as a result of a decision of the competent authority. Employees permanently taking care of a child are entitled to at least 5 weeks paid leave.

Impact Date

1 March 2021

Employer Implications/Action Needed

Employers should ensure compliance with the updated legislation. Family-related leave policies may need to be amended.

Employer Risk

As above (financial and litigation risk in the event of breach of the Labour Code).

Subject Matter/Name of Development

Trade union recognition

Summary

The condition for the operation of a trade union at the employer site is based on the employment of members by the employer, unless the trade union agrees otherwise with the employer. If it is unclear whether the trade union which is active or which requests to be active at the employer has any members employed by the employer, a special arbitration proceeding can be initiated, pursuant to which an arbiter appointed by the Ministry of Labour determines the issue. Prior to this amendment, a trade union could operate at a site even though no employees of that site were members of the trade union.

Impact Date

1 March 2021

Employer Implications/Action Needed

Employers should note the possibility of arbitration proceedings to clarify whether there is sufficient workforce representation for trade union recognition.

Employer Risk

Apart from the usual risks of trade union organization at an employer site (for example, the increased possibility of negotiation of terms and conditions) no immediate employer risk results from this amendment. The amendment simply clarifies the position where there was previous uncertainty on trade union representation.

Subject Matter/Name of Development

Amendments to statutory food voucher provisions

Summary

Employees working for an employer that does not provide meals in their own or contracted facilities are given the choice between a meal voucher or a financial allowance for meals. Employees are bound by their selection for 12 months from the date of the selection. An exception applies if the employer has a so-called “Gastro tickets” concluded contract, in which case the employer is not obliged to give employees a choice until the expiration of the contract, no later than 31 December 2021

Impact Date

1 March 2021

Employer Implications/Action Needed

Employers should update their catering policy and update internal systems to allow employees a choice between meal voucher or financial contribution.

Employer Risk

Failure to ensure that the food voucher/financial compensation amount is in accordance with the minimum statutory value can result in claims. A fine issued by the Labour Inspectorate may be imposed.

Subject Matter/Name of Development

Working time - business trips

Summary

An amendment to the Labour Code means that flexible working hours do not apply on the day of a business trip. In such cases, the employer determines the precise beginning and the end of the work shift. This rule does not apply if the business trip is exclusively within basic working hours or if the employer and the employee agree otherwise.

Impact Date

1 March 2021

Employer Implications/Action Needed

Employers should ensure that working time determination complies with the updated rules regarding business trips.

Employer Risk

As above (financial and litigation risk in the event of breach of the Labour Code).

Subject Matter/Name of Development

Probationary periods

Summary

An amendment to the Labour Code allows for the possibility of extending the probationary period by the period of any all-day obstacles on the part of the employee.

Impact Date

1 March 2021

Employer Implications/Action Needed

The probationary period is automatically extended by the number of days in which the employee was not able to work the whole shift due to obstacles on the employee's part. No action needed.

Employer Risk

No risk for the employer.

Subject Matter/Name of Development

Accidents at work

Summary

A new fine structure applies for breach of obligations under a collective agreement or applicable laws, where the breach resulted in an accident at work that caused serious injury.

Impact Date

1 April 2021

Employer Implications/Action Needed

Employers should review obligations in collective agreements and applicable health and safety laws and ensure adequate protections are in place.

Employer Risk

Under the new structure, fines of at least EUR 20,000 or least EUR 33,000 in the event of death.

Subject Matter/Name of Development

New reason for dismissal

Summary

A new reason for termination of employment by notice is introduced by an amendment to the Labour Code. Employers may terminate the employment, on notice, of an employee who has reached the age of 65 and who is entitled to old age pension.

Impact Date

1 January 2022

Employer Implications/Action Needed

Employers should review internal policies to take account of this new ground for dismissal.

Employer Risk

For this notice reason to be applicable, both conditions must be fulfilled – an employee has reached 65 years of age and is entitled to old age pension. Should the dismissal occur without fulfilling of these conditions, the dismissed employee may bring action for unfair dismissal.

Subject Matter/Name of Development

Legislative proposal on employer financial support

Summary

This new proposal is to incorporate the state support regime for part-time work into the Slovak legislation on a permanent basis (i.e. not just during the COVID-19 pandemic or other specific situations).

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 originally-agreed extent due to various external reasons which the employer cannot affect or prevent, such as supply chain failure.

The support currently proposed is 60% of the average hourly earnings of the employee, capped by a mechanism. In its currently-proposed form, the application of that mechanism would mean a cap of EUR 7.53 per hour or EUR 1,310.39 per month respectively.

Impact Date

1 January 2022, if passed

Employer Implications/Action Needed

No action needed at present.

If the proposal is adopted, it would give employers another option for managing an adverse economic situation, without the need to terminate employment.

Employer Risk

N/A


Contact

Helga Maďarová
Senior Associate
+421 232 786 411
helga.madarova@eversheds-sutherland.sk

Spain

Subject Matter/Name of Development Equality plans
Summary Companies with more than 101 employees must prepare and register an equality plan. Such equality plan must also include a remuneration audit, with an analysis of current remuneration practices and an action plan to address inequalities.
Impact Date 1 March 2021
Employer Implications/Action Needed Employers should note the requirement for equality plans, including the procedural requirements, how they have to be negotiated and minimum standards for their content.
Employer Risk Breach of the requirement to establish an equality plan in accordance with the statutory requirements could result in fines ranging from EUR 6,251 to EUR 187,515. Additionally, employees could request additional damages for breach of fundamental rights.
Subject Matter/Name of Development Equal pay
Summary Companies must have a remuneration register, which includes the average values of salaries, salary supplements and extra-salary perceptions of the workforce, disaggregated by sex.
Impact Date 14 April 2021
Employer Implications/Action Needed The legislation applies to all employers, regardless of size and number of employees, and applies to all job roles including management positions and senior positions. Employers should therefore ensure that steps are taken to establish a process to gather and report the required remuneration data (see also entry above regarding equality plan requirements).
Employer Risk Fines can apply in the event of any decision, including a decision on remuneration, that may imply discrimination.
Subject Matter/Name of Development COVID-19
Summary The government has approved the extension of COVID-19 legislation. This includes special procedures to carry out temporary suspension of contracts, working time reductions and restrictions on dismissals.
Impact Date Until 31 May 2021
Employer Implications/Action Needed Employers seeking to carry out or extend temporary suspension of contracts, applying working time reductions or considering dismissals should ensure that the statutory limitations and requirements are understood.
Employer Risk Failure to comply with the statutory procedures and restrictions (if applicable) could result in fines and the decision may be deemed null and void.

Contact:

Jacobo Martinez
Partner
+34 91 42 94 33 3
jmartinez@eversheds-sutherland.es

Sweden

Subject Matter/Name of Development Guidance from the Swedish Work Environment Authority (COVID-19)
Summary

The Swedish Work Environment Authority has published guidance for employers in relation to the pandemic, which mainly consists of a summary of existing obligations and recommendations from a general work environment perspective (but explained in light of the pandemic).

The Swedish Work Environment Authority has also published recommended actions for employers to take to ensure a safe work environment for those who work from the office.

Impact Date 1 February 2021
Employer Implications/Action Needed No new obligations, but employers should note the helpful overview contained in the guidance of what to consider from a work environment perspective and what actions to take.
Employer Risk

Risk of administrative (Swedish Work Environment Authority sanctions), criminal (fines) and in some cases civil liability (damages) for breach of workplace safety requirements.

If the Swedish Work Environment Authority assess that there is a risk of new incidents or accidents, the Authority can also place an immediate ban on the employer until measures have been taken to remedy the matter.

Links

Stöd i arbetsmiljöarbetet under covid-19-pandemin

Smittrisker på arbetsplatsen

Subject Matter/Name of Development Short-time work allowance
Summary The short-time work allowance scheme is available to any private company facing temporary and serious financial difficulties due to COVID-19. Irrespective of any allowance received during 2020, it is possible to apply for the allowance for up to 7 months from 1 December 2020. The level of Government aid will be 75% of the salary costs. The employees’ working hours may be reduced by 20, 40,60 or 80%.
Impact Date Until 30 June 2021
Employer Implications/Action Needed Employers wishing to utilise the scheme should ensure that they are able to demonstrate temporary and serious financial difficulties in coping with the challenges resulting from COVID-19.
Employer Risk N/A
Link

Korttidsarbete 2021

Subject Matter/Name of Development Government support scheme to businesses in case of national lockdown
Summary The government has suggested a support scheme for businesses in the event of a national lockdown. The proposed scheme is based on a government-funded allowance which covers up to 100% of the fixed costs, including salary costs, during a lockdown.
Impact Date TBC
Employer Implications/Action Needed No action at present. The bill is yet to be passed in Sweden and will also require approval from the European Commission before implementation.
Employer Risk N/A
Link

Finansdepartementet remitterar förslaget till nedstängningsstöd


Contact:

Per Westman
Partner
+46 85 45 32 28 8
perwestman@eversheds-sutherland.se

Switzerland

Subject Matter/Name of Development Compatibility of Gainful Employment and Family Care
Summary

Since 1 January 2021, employees taking care of family members in need of care have had an extended entitlement to paid leave.

The new Federal Law Act on the Improvement of the Compatibility of Gainful Employment and Family Care implemented the continued payment of wages in the event of short absences, extended care credits in the old-age and survivors’ insurance AHV and adjusted the entitlement to the intensive care supplement and the helplessness allowance of the disability insurance IV for children.

As a second stage, a 14-week paid leave for taking care of seriously ill or injured children is coming into force. The leave may be taken within a period of 18 months, either as single day or consecutive days.

Impact Date 1 July 2021
Employer Implications/Action Needed To comply with the legal requirements, employers should take necessary planning actions, including reviewing and updating policies.
Employer Risk The new right to paid leave and corresponding increased absences will require careful planning within the organization to avoid commercial risk.
Subject Matter/Name of Development Work references (case law)
Summary In its recent judgement, the Federal Court clarified that the limitation period for the employee’s statutory entitlement to a work reference is subject to the general statute of limitation period of 10 years. The statute of limitation period of 10 years is calculated from the end of the employment relationship and applies to the employee’s claim for issuance of a work reference as well as the correction of an earlier issued work reference.
Impact Date With immediate effect
Employer Implications/Action Needed Employers should ensure that a retention period of (at least) 10 years for the relevant documentation is maintained. It should be noted that longer limitation periods may apply for other matters (for example, regarding personal injury).
Employer Risk Employers can face liability for the failure to issue work references, as well as in relation to the accuracy of a work reference.

Contact:

Michel Verde
Senior Associate
+41 44 204 90 90
michel.verde@eversheds-sutherland.ch

UK

Subject Matter/Name of Development

Employment status (case law)

Summary

The UK Supreme Court decided in favour of Uber drivers having worker status, reflecting the purpose of the legislation (to protect vulnerable workers) and the degree of control, subordination and dependency on the facts.

Impact Date

19 February 2021

Employer Implications/Action Needed

Employers who engage individuals on a non-employed basis should consider carrying out a review and risk assessment, in particular taking account of the degree of control exercised by the putative employer.

Employer Risk

Potential risks of misclassifying the status of workers includes liability for failure to pay the statutory minimum wage and potential pension auto-enrolment and holiday pay entitlements.

Link

UK Supreme Court decides Uber taxi drivers are workers

Subject Matter/Name of Development

National minimum wage and sleep-in shifts (case law)

Summary

The Supreme Court found that where workers undertake sleep-in shifts by arrangement, they are entitled to be paid the national minimum wage only for the hours when they are awake for the purpose of working and not for the time spent sleeping.

Impact Date

19 March 2021

Employer Implications/Action Needed

N/A

Employer Risk

The outcome in this case limits the potentially significant claims against employers for back pay in respect of sleep-in shift time. However, employers should note that sleep-in care workers will continue to be entitled to be paid whenever they are awake and carrying out their duties

Link

Supreme Court rules on national minimum wage for sleep-in workers

Subject Matter/Name of Development

Cap on Public Sector Exit Pay

Summary

Regulations came into force in November 2020 regarding the imposition of a financial cap on public sector termination payments. However, in February 2021 the revocation of those Regulations was announced and new Regulations came into force in March 2021 revoking the cap.

Impact Date

19 March 2021

Employer Implications/Action Needed

Public sector employers should review employee terminations between 4 November 2020 and 19 March 2021 to assess whether any additional sums are due.

Employer Risk

Potential risk for additional sums that would have been paid but for the cap. However, such sums may not always be straightforward to quantify.

Link

Public Sector Exit Payments Regulations to be revoked

Subject Matter/Name of Development

Equal pay (case law)

Summary

This long-running case involves equal pay (i.e. equal value) claims by female shop floor workers claiming the same pay as male workers in distribution centres. The Supreme Court determined that the claimant workers are able to compare their pay with that of workers based at different establishments.

Impact Date

26 March 2021

Employer Implications/Action Needed

None at present. A final outcome is not expected for some time to come.

Employer Risk

None at present. Establishing comparators is just the first hurdle in this fact-sensitive and long-running litigation.

Links

Equal pay: Asda Stores Limited v Brierley and others

Subject Matter/Name of Development

IR35

Summary

Responsibility for determining the tax status of workers who supply their personal services via an intermediary, such as a personal service company, is transferring to many private sector end user organisations (under the extension of tax rule IR35). Technical guidance has been published by HMRC.

Impact Date

6 April 2021

Employer Implications/Action Needed As a minimum, employers should: audit their use and the deemed employment status of contractor personal service companies; establish the integrity and credibility of those within the labour supply chain and whether they are compliant with the off-payroll changes; be able to give reasons for status determinations including training those involved and ensuring that “reasonable care” is being taken; amend or introduce disputes resolution procedures; review engagement, payslip, payroll processes and labour supply contractual liabilities and indemnities to ensure compliance.
Employer Risk

Failure to comply with the new requirements could result in liability for any underpaid employment taxes, penalties and reputational risk.

Links

IR35 guidance materials

Subject Matter/Name of Development

Protection from detriment in health and safety cases (Northern Ireland)

Summary

The Economy Minister has announced new legislation which extends protections against detriment in health and safety cases to workers in relation to any action they may take to protect themselves or others where they reasonably believe there is serious and imminent danger in their place of work. At present, the protections cover only employees.

Impact Date

31 May 2021

Employer Implications/Action Needed

Given the ongoing COVID-19 pandemic, this is a significant change. As a minimum, employers should ensure that their policies are updated and line managers are briefed.

Employer Risk

Potential employee relations issues if policies and procedures are not updated in line with the new legislation.

Subject Matter/Name of Development

Ethnicity pay reporting

Summary

A consultation in relation to a proposal to introduce ethnicity pay reporting closed in January 2019, with the outcome yet to be released. The Commission on Race and Ethnic Disparities has now reported, but it has not recommended the introduction of mandatory ethnicity pay gap reporting. Instead, it suggests that where organisations report on a voluntary basis they should also publish a diagnosis and action plan.

Impact Date

Currently unknown

Employer Implications/Action Needed

Some companies in the UK have already started voluntary ethnicity pay gap reporting. For those that have not already done so, consideration should be given to a voluntary approach and associated measures, including what ethnicity data is collected, how, and steps to encourage workers to share data.

Employer Risk

Failure to ensure effective diversity and inclusion within a workplace could result in grievances and potential litigation.

Links

Bridge the gap guide

Ethnicity pay reporting briefing

The report of the Commission on Race and Ethnic Disparities

Subject Matter/Name of Development

Introduction of parental bereavement leave and pay (Northern Ireland)

Summary

The Minister has announced the Executive’s intention to introduce parental leave and pay in Northern Ireland. It is anticipated that if introduced, the provisions will mirror those already in place in Great Britain - a statutory entitlement to one or two weeks’ leave (and in some cases pay) following the loss of a child under the age of 18, or a stillbirth after 24 weeks of pregnancy.

Impact Date

Currently unknown

Employer Implications/Action Needed

Employers should continue to monitor for developments. If introduced then Northern Ireland policies and procedures will need to be updated.

Employer Risk

Potential employee relations issues if policies and procedures are not updated once the new entitlements come into force.

Contact:

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

Middle East Global Update Banner

Qatar

Subject Matter/Name of Development

Minimum wage

Summary

The Ministry of Administrative Development, Labour and Social Affairs (“MADLSA”) has announced the new minimum wage rate of 1,000 Qatari riyals (QR) for all workers and domestic workers. In addition, in the event that adequate housing and food for the worker or domestic worker are not provided, the minimum housing allowance is 500 QR, and the minimum food allowance is 300 QR.

Impact Date

20 March 2021

Employer Implications/Action Needed

Employers should take note of the new minimum wage and amend existing employment contracts to take account of the new requirements.

Employer Risk

Failure to comply with the new minimum wage requirements risks sanctions/fines being imposed by the MADLSA.

Links

https://www.adlsa.gov.qa

Contact:

Geraldine Ahern
Partner
+9712 494 3632
geraldineahern@eversheds-sutherland.com

North America Global Update Banner

USA

Subject Matter/Name of Development

California COVID-19 Paid Sick Leave Requirement

Summary

As state legislatures continue to grapple with COVID-19, California has approved a paid sick leave requirement for employees impacted by the pandemic. This paid sick leave applies to employees of employers with 25 or more employees.

Impact Date

1 January 2021

Employer Implications/Action Needed

California employers should confirm that it is in compliance with the leave provision, and other administrative aspects including notice and reflection of the leave in itemized wage statements.

Employer Risk

The retroactive nature of the leave law creates a burdensome administrative hurdle for many employers since U.S. employers do not typically track the reason for an employee’s leave. Employers also face potential liability if an employee were to claim that the law entitles them to wages for an unpaid leave that they took earlier this year.

Subject Matter/Name of Development

New York COVID-19 Vaccine Paid Leave

Summary

The New York legislature has passed a law that entitles New York employees to receive paid leave to receive their COVID-19 vaccine.

Impact Date

12 March 2021

Employer Implications/Action Needed

New York employers should ensure that they provide the leave to employees who wish to take the vaccination, and should be administratively prepared to handle leave requests.

Employer Risk

Failure to provide the leave could result in back pay and other damages.

Subject Matter/Name of Development

Florida’s protection against COVID-19 liability

Summary

Florida has signed a new law that provides employers with protections against COVID-19 lawsuits, provided that they can show they made a good faith effort to follow pandemic prevention guidelines.

Impact Date

29 March 2021

Employer Implications/Action Needed

Employers should confirm that they have taken all reasonable steps to comply with federal, state, and local health and safety guidelines to protect its workforce against the pandemic.

Employer Risk

Failure to comply with guidelines could expose the entity to the risk of litigation.

Contact:

Scott McLaughlin
Partner
+1.713.470.6155
scottmclaughlin@eversheds-sutherland.com

Previous update

February 2021