EuGH fordert systematische Arbeitszeiterfassung

Unternehmen in der Europäischen Union sollen künftig dazu verpflichtet sein, ein System zur Erfassung der täglichen effektiven Arbeitszeit ihrer Arbeitnehmer einzuführen. Der Europäische Gerichtshof (EuGH) entschied in einem Urteil vom 14.05.2019, dass alle Mitgliedstaaten von Arbeitgebern einfordern müssen, „ein objektives, verlässliches und zugängliches System einzurichten, mit dem die von einem jeden Arbeitnehmer geleistete tägliche Arbeitszeit gemessen werden kann.“ (Pressemitteilung des EuGH).

 Die Entscheidung betrifft eine Klage der spanischen Gewerkschaft CCOO gegen die Deutsche Bank SAE in Spanien, in dem sie argumentierte, nur durch eine umfassende Zeiterfassung könne die Bank ihrer Verpflichtung nachkommen, der Gewerkschaft die monatlich geleisteten Überstunden zur Prüfung zu übermitteln. Wie in Deutschland bestand in Spanien bislang keine allgemeine Pflicht zur Zeiterfassung. Da der Nationale Gerichtshof Spaniens (Audiencia Nacional) Zweifel an der Vereinbarkeit der Auslegung des spanischen Gesetzes mit dem Unionsrecht hatte, legte es die Frage dem EuGH vor.

 Der EuGH bestätigte nun die Notwendigkeit einer umfassenden Zeiterfassung und stützt sich dabei auf die Charta der Europäischen Grundrechte und die europäische Arbeitszeitrichtlinie. Allerdings hält es auch fest, dass es Sache der Mitgliedstaaten ist, die konkreten Modalitäten zur Umsetzung einer solchen Zeiterfassung zu regeln. Diese dürfen dabei „den Besonderheiten des jeweiligen Tätigkeitsbereichs oder Eigenheiten, sogar der Größe, bestimmter Unternehmen Rechnung tragen“.

 Eine sofortige Konsequenz hat das Urteil für Unternehmen in Deutschland nicht. Es ist abzuwarten, wie der Gesetzgeber die Vorgaben des EuGH umsetzen wird. Dabei muss es nicht zwingend zu Stechuhren für alle kommen; denkbar sind auch händische Erfassungsmöglichkeiten. Ein Zwang für alle Arbeitnehmer, ihre Arbeitszeit vollständig zu erfassen, ist der Pressemitteilung des EuGH nicht zu entnehmen – es muss ihnen wohl nur die Möglichkeit geboten werden, dies zu tun. Ein freiwilliger Verzicht ihrerseits wäre danach weiterhin möglich, so dass die freiwillige Vertrauensarbeit hoffentlich fortbestehen kann.

 Zu erwarten ist, dass mittelfristig gleichwohl ein höherer bürokratischer Aufwand auf die Unternehmen zukommt. Zu hoffen ist, dass bei dieser Gelegenheit eine – auch von vielen Arbeitnehmern gewünschte – größere Flexibilität zugelassen wird. Dem Wunsch vieler berufstätiger Eltern, nachmittags die Arbeit zu unterbrechen, sich der Familie zu widmen und dafür abends noch einmal zu arbeiten, steht bisher die verpflichtende 11-stündige Ruhepause zwischen zwei Arbeitstagen entgegen. Diese müsste allerdings auf europäischer Ebene geändert werden, da sie in der Arbeitszeitrichtlinie enthalten ist.

 

BIC UK Ltd v Burgess [2019] – employer appeal successful: retrospective amendment re-wrote history to an impermissible extent

BIC UK Ltd v Burgess [2019] – employer appeal successful: retrospective amendment re-wrote history to an impermissible extent

The Court of Appeal (CA) has unanimously ruled that a retrospective amendment to the deed and rules of the BIC UK Pension Scheme (the Scheme) was invalid.

Last year, the High Court had ruled that whilst the relevant deed of amendment had involved “an element of re-writing history” it did “not involve doing so impermissibly”. The CA disagreed and said that “…the past cannot be rewound and replaced with a different version of history in reality…In that important and literal sense, history cannot be re-written.”

However, some questions considered by the High Court were not in issue in this appeal. These included the judge’s decision that a statutory limitation period does not apply to the remedy of equitable recoupment and that the Pensions Ombudsman (PO) is not a competent court for the purposes of section 91 of the Pensions Act 1995. Section 91 provides that where there is a dispute regarding an amount to be repaid, set-off cannot be exercised unless the repayment obligation has become enforceable under an order of a ‘competent court’.

Background

The trustees had resolved in 1991 to award certain pension increases but the relevant deed of amendment was not executed until 1993. A disagreement arose around the issue of retrospectivity, and whether or not the increases had been validly awarded.

The trustee resolution had been recorded in minutes of a 1991 meeting. In 1993, a new deed and rules was executed and expressed to be effective from 1990. The amendment provisions gave the trustees power to make changes by deed executed by the principal employer and the trustees or “by resolution (in writing) of the trustees in the case of the rules only.”

BIC claimed that the minutes neither amounted to a trustee decision to award increases, nor did they evidence its consent as the employer, whereas the trustees argued that the minutes were effective in this regard.

The appeal decision

The CA was doubtful that those Scheme powers relied on could have validated the introduction of the increases at all. It found that the trustees’ minutes simply recorded a resolution on future policy, leaving the implementation of that policy to “be carried out as soon as possible”. There was no immediate alteration of the Scheme rules, and if that had been the intention, the text of the necessary amendments would have been set out in a written document signed by all three of the trustees.  In addition, formal reference would have been made in the amending document to BIC’s consent.

Comment

The case highlights that the proper and formal process set out in a trust deed and rules must be followed in order to made valid benefit amendments.

As the rule amendment has been judged invalid by the CA, those increases will now need to be recouped from members via the adjustment of future payments, to the tune of approximately £5 million in total. This process will not be limited by a statutory limitation period.

When the High Court judgment was reported in 2018, most of the headlines in the legal press emphasised that part of the decision holding that the six-year limitation period does not apply to claims for equitable recoupment. The decision does not overrule the High Court judgment in Webber, which ruled that the recovery of overpayments was subject to the limitation period of six years. This means there are two High Court decisions taking different views on the same issue and schemes should consider the treatment of overpayments on a case by case basis.

On the point of its competency as a court for section 91 purposes, the PO published a fact sheet in April 2019 setting out its view that it considers the High Court judge’s comments on the issue as obiter and thus not forming part of his decision as a whole.

Changes to off payroll working rules from April 2020

HMRC has published its latest consultation on off payroll working rules. As we have previously discussed (Global Workplace insider post – June 2018), the reformed off payroll rules which have applied in the public sector since April 2017 will be extended to the private sector from 6 April 2020.  The consultation has raised significant issues for private sector employers who employ contractors.

The off payroll working rules, known as IR35, are intended to ensure that individuals who personally provide their work to a client via their own personal service company or other intermediary, pay broadly the same employment taxes as employees, if they would be considered to be an employee or office holder of the client except for the existence of the intermediary.   The broad proposal is that, with effect from April 2020, the client, rather than the intermediary will be responsible for determining whether the IR35 rules apply.  The fee-payer (usually the organisation paying the worker’s personal service company) would then need to make deductions for income tax and NICs and pay any employer NICs if the client has determined that IR35 does apply.

Clients will therefore have much more responsibility for gathering information. Under the current position, which applies in the public sector, clients have to provide a determination to the party with which they contract at the start of the contract.  The new proposals go beyond this and require clients to inform both the entity with which they contract and the individual contractor of their determination and if requested, provide them with the reasons for it.  The status determination and reasons would also need to be passed on down the contractual chain so that all parties in that chain have sufficient information to allow them to comply with their obligations under the rules.

In situations where HMRC does not receive the tax due, liability would then rest with the party that has failed to fulfil its obligations: liability would move down the labour supply chain as each party fulfils its obligation to pass on the status determination made by the client. This means that the client organisation may be liable for any unpaid income tax and class 1 employee national insurance contributions due on deemed payments of employment income until it has managed to fulfil its obligations under the new rules.  In addition, if HMRC were unable to collect the outstanding liability from a party further down the chain, for example because it ceased to exist, the government proposes that liability will transfer back up to the first party or agency in the chain and if HMRC could not recover from them, ultimately to the client.  This means that the due diligence being performed by the client on the whole of the supply chain will be much more significant in order to ensure that they will not be left with liability.

It is also proposed that a procedure must be established to allow for the parties to challenge the determination. This could be similar to a grievance procedure.

Although the consultation has amended the provisions to ensure that small employers will not be required to comply with the new changes, there will still be a large number of employers who are affected.

So what should businesses be doing to prepare for the changes?

It is important that clients who contract with suppliers begin taking steps to ensure that they will be in a position to comply with the new rules. These should include:

  • Identifying contractors supplying their labour through an intermediary
  • Completing due diligence on the supply chain (including financial liability of the entities in the chain)
  • Considering changes to any protocols for engaging future contractors
  • Ensuring that there is a system to assess contractors employment status regularly and a process for documenting the determination
  • Identifying any adjustments to working practices
  • Ensuring there is a contract in place for working arrangements for each contractor and considering changes to any standard form consultancy arrangements.

UK pensions: Does an employer have a duty to advise a dying employee on the implications of taking ill-health benefits early?

The smooth operation of a pension scheme depends on an efficient flow of information between the employer and the member. Frequently, the Pensions Ombudsman is asked to consider scheme trustees’ and employers’ duties on providing benefit information to members.

Where the law is silent, this can be a tricky area to navigate and considerable uncertainty may arise. What level of information should trustees and employers provide to a member given a diagnosis of terminal ill-health? When might this information stray into the territory of unauthorised financial advice?

Two illustrative cases

In February 2019 (Mrs T – PO-19080), the Ombudsman dismissed a complaint on behalf of a deceased employee that the employer and its financial advisers failed to advise the dying member that his benefits would be reduced if taken early.

The Ombudsman distinguished between the employer giving unauthorised financial advice to employees (prohibited under the Financial Services and Markets Act 2002), and providing helpful information. The relevant information was available to the member in the scheme booklet, as was the suggestion that independent financial advice should be considered. However, the financial advisers were required to give advice to employees only on request, and the member did not ask for help.

In an apparently inconsistent decision, in March 2019 (Estate of Mrs N – PO-19673), the Deputy Ombudsman upheld a widower’s complaint where a member died one day before her approved ill-health early retirement date. As a consequence, having died in service, the member’s widower’s benefits were reduced. The Ombudsman found that the employer had unjustifiably jeopardised the member’s benefits by not setting the approval and retirement dates for the same day. The employer was directed to pay any difference to the widower in benefits, any tax liability incurred and interest.

Is success or failure a lottery?

How to reconcile these two decisions? Scheme employers and trustees can be placed in a difficult position after a member’s decision (or failure to take one) means their benefits are reduced. There are clear administrative issues in situations of a member’s terminal ill-health, where decisions can have a significant impact on survivor benefits.

While sympathetic, the Ombudsman must follow both statute and case law on the issue of employer guidance or advice to employees. Although in Mrs T’s case it would have been beneficial if the employer or the trustees had taken an extra step to assist the member, this would have involved taking a potentially unlawful responsibility in providing unauthorised financial advice. Nevertheless, employers and trustees should note that the Ombudsman has often found maladministration where they have failed to follow good practice. When a member is terminally ill, related benefit queries should be dealt with quickly, and all information provided should be accurate and clear.

Takeaway points

Employers need not:

  • highlight potentially detrimental member decisions; or
  • advise members how best to exercise choices permitted under scheme rules.

But they should:

  • ensure sufficient, clear information is available to the member;
  • respond quickly; and
  • suggest that members seek independent financial advice where the employer cannot help.

There is no automatically enhanced duty when a member is terminally ill and there is no implied duty on an employer to take reasonable care of an employee’s financial well-being. That said, it is simple human kindness to recognise that a member’s focus is unlikely to be on the finer details of their pension benefits where a terminal diagnosis has been received.

 

 

UPDATE: September 30, 2019 deadline for employer pay data reporting to EEOC will cover both 2017 and 2018 pay data

September 30th deadline to provide pay data to EEOC will cover both 2017 and 2018 pay data

As we previously reported in our articles Employers with 100 or more employees must provide pay data to the EEOC by September 30, 2019 and New EEOC pay data deadline: September 30, 2019, following an April 25, 2019 federal court ruling, employers with 100 or more employees should begin to prepare to report pay data to the U.S. Equal Employment Opportunity Commission (EEOC) by September 30, 2019.

As discussed in our prior article, the recent federal court ruling mandated employer reporting of 2018 pay data by September 30, 2019, but gave the EEOC the option of either collecting retrospective 2017 pay data by September 30, 2019, or collecting 2019 pay data during the normal 2020 EEO-1 reporting period.  In today’s Federal Register, the EEOC formally announced its decision to collect Component 2 pay data for calendar year 2017, in addition to calendar year 2018, by September 30, 2019.

While there is a possibility that an appeals court could stay this reporting requirement before then, covered employers should operate under the assumption that they will need to meet this September 30, 2019 deadline.  Employers should refer to our prior article for detailed suggestions on preparations that employers should take in light of this development, and should now focus on reviewing their 2017 pay data as well as their 2018 pay data.

Please contact us with any questions.  Our employment team at Norton Rose Fulbright would be happy to assist your company with these new pay data reporting requirements.

Changes to British Columbia’s Workplace Legislation

This week, the Honourable Harry Bains, B.C.’s Minister of Labour, submitted bills to the legislature to amend the province’s three major workplace-related statutes that fall under the Ministry of Labour’s jurisdiction: the Employments Standards Act, the Labour Relations Code, and the Workers Compensation Act.

These bills must still go through the legislative process before they become law. However, they signal that there are important changes likely ahead for B.C. employers.

Employment Standards

On April 29, 2019, Minister Bains submitted for first reading Bill 8, the Employment Standards Amendment Act, 2019. The government’s news release regarding the changes provides background information as well as a summary of the proposed amendments. Among other things, the changes:

  • require employers to provide employees with information about their rights (s. 5);
  • increase the age of work from 12 to 16, except children who are 14 or 15 can perform “light work” (s. 6);
  • require operators of temp agencies to be licensed (s. 9);
  • increase the time employers must keep payroll records from two years to four (s. 14);
  • prohibit employers from withholding or deducting from tips, except for tip pooling (s. 15);
  • extend the period workers can recover owed wages from six to 12 months, with the possibility of extending to 24 months in certain circumstances (s. 29);
  • provide up to 15 weeks of unpaid leave for employees escaping domestic violence (s. 19);
  • provide up to 36 weeks of unpaid leave for employees caring for a critically ill family member (s. 18); which is a separate leave provision from the 27 weeks of compassionate care leave that currently exists;
  • amend the Employment Standards Branch’s investigation and dispute resolution process (ss. 23-28);
  • deem employment to continue if the employer corporation goes into receivership (s. 31); and
  • amend the rules respecting when the Employment Standards Act applies to collective agreements (s. 3).

Labour Relations Code

On April 30, 2019, Minister Bains submitted for first reading Bill 30, the Labour Relations Code Amendment Act, 2019. The bill arises from the work of a panel that Minister Bains convened in February 2018 and its subsequent August 2018 Report, which contained 29 recommendations for amending the Labour Relations Code. The government also distributed a news release regarding the changes that these proposed amendments would bring including:

  • permiting “lawful consumer leafleting” when picketing (s. 1);
  • requiring an independent review of the Labour Relations Code every five years (s. 2);
  • permitting a person “to communicate to an employee a statement of fact or opinion reasonably held with respect to the employer’s business” (s. 4); which previously was, “a person has the freedom to express his or her views on any matter, including matters relating to an employer, a trade union or the representation of employees by a trade union, provided that the person does not use intimidation or coercion”; and therefore, it can be expected that union’s will attempt to restrict current rights of employers to communicate with their employees;
  • permitting the Board to certify a union where it is “just and equitable” if there has been a prohibited act, notwithstanding a failed vote (s. 5);
  • restricting the time period during which raids are permitted (s. 6);
  • shortening the requirements for the time between an application for certification and an employee vote from 10 days to five (s. 7);
  • extending successorship protection to re-tendering of service contracts in building cleaning, security, bus transportation, food, and non-clinical health sector services (s. 10);
  • extending the time during which an employer must not alter a term or condition of employment post-certification from four months to 12 (s. 11);
  • removing the power to direct the designation of essential services in respect of the provision of educational programs (s. 16);
  • amending the grievance procedure in various respects (ss. 16-21); and
  • increasing fines issuable for individuals from $1,000 to $5,000, and for corporations from $10,000 to $50,000 (s. 25).

WorkSafeBC

On April 11, 2019, Minister Bains submitted for first reading Bill 18, the Workers Compensation Amendment Act, 2019, which proposes changes to B.C.’s occupational health and safety laws. Bill 18 was submitted for second reading on April 29, 2019.

These changes mainly deal with changes to the definition of a “firefighter” whose illness is presumed to have been caused by his or her occupation.

However, there are more comprehensive changes coming to this legislation as well. On April 3, 2019, the government announced in an information bulletin that it is undertaking a formal review of the workers’ compensation system. A report, including possible recommendations, will be delivered to the government by September 30, 2019. This report will likely recommend changes aimed at increasing protections for workers.

The author wishes to thank Piers Fibiger, articling student, for his contribution to this article.

Ethnicity pay gap reporting in the UK

As reported in an earlier post, the UK Government introduced mandatory gender pay gap reporting in 2017.

An independent review conducted in 2017, Race in the workplace, made a number of recommendations for removing the barriers to workplace progression faced by ethnic minorities including the introduction of mandatory reporting of ethnicity pay data. At that time the UK Government expressed a preference for a voluntary approach to ethnicity pay reporting.

However, following a later report revealing that very few employers collect ethnicity pay data, the Government has decided that mandatory ethnicity pay reporting is necessary to enable employers to identify barriers to workplace progression by ethnic minorities. In October last year it therefore published its proposals on this for consultation.

Ethnicity pay gap reporting proposals

In the consultation, it is acknowledged that an important first step is to agree the overall approach to ethnicity pay gap reporting, such as how to report the data and how individuals should be categorised. This could impact considerably on the results.

The following alternatives are proposed:

    • Reporting one pay gap figure only by comparing the average hourly earnings of ethnic minority employees as a percentage of white employees. However, this approach may not give a fully representative figure as all ethnic minority groups would be reported on together.
    • Reporting several pay gap figures according to ethnic group (such as black, Asian, mixed). This would compare average hourly earnings of each ethnic group as a percentage of white employees. However, this would not provide information as to the differences in pay across different ethnic groups.
    • Reporting by pay band or quartile. This approach would show the proportion of employees from different ethnic groups according to pay bands or quartiles.

 

Which employers will need to report?

The consultation also addresses the question of which employers according to size should have to report ethnicity pay data.

The proposal is that only employers of 250 or more employees should have to report. This would mirror the gender pay gap reporting obligations. Figures reported for smaller employers may be less informative because of the limited amount of data.

Challenges of reporting ethnicity pay data

The consultation also acknowledges the difficulties which employers will face in collecting the relevant data:

  • There is no legal obligation on employees to disclose which ethnic group they identify with.
  • Individuals may not identify with any of the categories of ethnic group proposed.
  • Employers may already have their own classifications and a more standardised approach may result in extra costs for these employers if they have to change their systems.
  • Employers who collect ethnicity data will need to ensure the anonymity of their employees.

Next steps

The consultation closed in January this year. No response has yet been published but it has been suggested that the new obligations may be introduced by way of a trial or phased approach before mandatory rules are introduced.

 

 

Employers with 100 or more employees must provide pay data to the EEOC by September 30, 2019

September 30th deadline to provide pay data to EEOC

Following an April 25, 2019 federal court ruling, employers with 100 or more employees should begin to prepare to report pay data to the U.S. Equal Employment Opportunity Commission (EEOC) by September 30, 2019.  While there is a possibility that an appeals court could stay this reporting requirement before then, covered employers should operate under the assumption that they will need to meet this September 30, 2019 deadline.

Background on pay data reporting requirement

Under current law, employers with 100 or more employees and federal contractors with 50 or more employees are required to file an annual Employer Information Report (EEO-1) that includes data on the race, ethnicity, and sex of their employees, broken down by job category.  As we previously reported in 2016 in our legal update EEOC Proposes Adding Pay Data to EEO-1 Report, the EEOC published a proposed revision to the EEO-1 that would require employers with 100 or more employees to provide employee pay data in the EEO-1 (note that federal contractors with 50 to 99 employees would continue to be subject to the same EEO-1 reporting requirements as before, but would not be required to provide the new employee pay data).  Using the reported information, the EEOC would compile and publish aggregate pay data to help employers analyze their own pay practices and for federal agencies to assess discrimination complaints, focus agency investigations, and identify existing pay disparities for further investigation.   A version of this proposal was approved by the Office of Management and Budget (OMB) later in 2016, and is often referred to as “Component 2” of the EEO-1.  However, the Component 2 proposal was met with criticism from employers and advocacy groups, and in response, in August 2017, the OMB announced that it was staying the Component 2 pay data reporting requirement before it went into effect.

Recent federal court rulings revive pay data reporting requirement

A few months after the proposal was stayed, several advocacy organizations sued the EEOC and OMB to revive the pay data reporting requirement.  On March 4, 2019, Judge Tanya Chutkan of the U.S. District Court for the District of Columbia ruled that the OMB had issued the stay without good cause, and lifted the stay on the Component 2 pay data reporting requirement.  On April 25, 2019, Judge Chutkan issued a ruling from the bench that employers with 100 or more employees must provide the EEOC with the Component 2 pay data by September 30, 2019.  Judge Chutkan ordered that the Component 2 pay data be collected for calendar year 2018, and she also ordered that a second year of pay data be provided.  However, for the second year of pay data, Judge Chutkan’s ruling gave the EEOC the option of either collecting retrospective 2017 pay data by September 30, 2019, or collecting 2019 pay data during the normal 2020 EEO-1 reporting period.  The EEOC has until May 3, 2019 to announce its decision on the time period for which they will require this second year pay data to be provided.  Judge Chutkan also ruled that the EEOC must keep its Component 2 website portal open for employers to be able to submit the Component 2 data electronically, and must immediately begin implementing steps for collecting data and notifying employers of these requirements.  See our prior legal update New EEOC pay data deadline: September 30, 2019 for further information on Judge Chutkan’s most recent ruling.

Employers should prepare to report pay data by September 30, 2019 deadline

While there is the possibility that the OMB will appeal Judge Chutkan’s decision and seek a stay pending an appeal, covered employers should move forward under the assumption that they will need to report pay data to the EEOC by September 30, 2019.  Employers should also keep in mind that they are still required to submit their 2018 data for Component 1 of the EEO-1 by May 31, 2019.

It is likely that, to complete Component 2 of the EEO-1, employers will be required to provide employee wage information from Box 1 of Form W-2 and information on hours worked by all employees by race, ethnicity, and sex, reported within twelve proposed pay bands.  The EEOC has stated that it will open the Component 2 website portal by July 15, 2019, and will offer training sessions and additional guidance to employers on the new reporting requirements.  Employers should stay tuned for further information from the EEOC in the coming weeks.  It would certainly be easier on employers if they are not required to report 2017 pay data as well as 2018 pay data by September 30, 2019.  However, until the EEOC announces its decision on 2017 pay data on or before May 3, 2019, employers should focus on reviewing their 2018 data and determining how the information will be culled and compiled into the Component 2 form.  Employers will need to determine how employee W-2 data will be separated into the twelve pay bands for each of the EEO-1 categories, and review how the data looks.  If employers identify any areas of pay disparity in the data, they should consider taking steps to address them.

Next steps for employers to take now

Employers should consider working with employment counsel to conduct an initial internal review of their pay data, so that if any pay disparities are identified, they have the protection of the attorney-client privilege as much as possible.  By conducting an internal pay data audit with counsel, employers may be able to address any pay disparities that would cause government scrutiny when reported to the EEOC.  If employers act quickly, they may be able to determine whether any identified pay disparities can be corrected, or justified by legitimate and non-discriminatory business reasons.  We recommend consulting employment counsel as early as possible in this process.

Please contact us with any questions.  Our employment team at Norton Rose Fulbright would be happy to assist your company with these new pay data reporting requirements.

Religious practices and workplace incapacity

The Labour Appeal Court (LAC) has reaffirmed that employers must be tolerant of employee religious beliefs.

In TDF Network Africa (Pty) Ltd v Deidre Beverley Faris, it ruled that the employee was discriminated against and unfairly dismissed for practising her religion. Faris, a Seventh Day Adventist, refused to attend monthly Saturday stock takes as her religion prohibited working over the Sabbath. The employer dismissed her for ‘incapacity’.

Faris approached the Labour Court with an automatically unfair dismissal dispute owing to her religious beliefs. It found the dismissal automatically unfair because she was discriminated against for religious compliance.

Monthly weekend warehouse stock-takes were a requirement of the logistics and transport service provider, Faris, however, was unable to work during her Sabbath – from sundown on Friday to sundown on Saturday.

In her interview, she had informed the employer of her religious beliefs that precluded her from working at this time.

The employment contract contained a provision requiring her to work overtime – provided it did not exceed the statutory limitations. Whilst the employer contended that it was an operational requirement for Faris to participate in Saturday stock takes, she had not attended one for 12 months prior to her dismissal, despite being rostered to do so.  She faced no disciplinary action during this period.

Faris made various suggestions to find a mutually agreeable solution, including working after sunset on Saturdays, on Sundays or after hours. There was no evidence that the employer engaged her meaningfully about possible alternatives.

The LAC had to decide whether the discrimination was fair, rationally connected to a legitimate purpose and whether it unduly impugned her dignity.  It concluded that she would not have been dismissed had it not been for her religious beliefs and the employer discriminated against her for complying with these beliefs.

The employer contended that it was an inherent requirement for someone in a managerial position such as hers to participate in the stock taking.  The LAC emphasised that a legitimate commercial rationale is not sufficient to demonstrate fair discrimination.

Faris was awarded 12 months compensation. This judgment emphasises the need for religious tolerance in the workplace.

What this means for employers

  • Employers must demonstrate that it is impossible to accommodate an individual employee without imposing undue hardship or insurmountable operational difficulty.
  • An employer may not insist on an employee obeying a workplace rule where a refusal to obey that rule would have little or no consequence to the business.
  • Employers must think carefully before they institute incapacity proceedings against employees who are unable to adhere to a specific workplace rule or practice.
  • Employers must draw a distinction between employees who arbitrarily disobey a lawful instruction and those who have a legitimate reason based on religious belief or other constitutionally protected rights.
  • On incapacity related matters, employers are duty bound to try to accommodate employees that are unable to tender services as normal due to, for instance, legitimate religious beliefs.

This article was written by Lovanya Moodley, Associate, Norton Rose Fulbright South Africa Inc

Loi Pacte : Que faut-il en attendre dans les relations employeurs / salariés ?

La loi « Pacte » (Loi relative à la croissance et la transformation des entreprises) a été adoptée en lecture définitive par l’Assemblée Nationale le 11 avril dernier, après de longs mois de débats devant l’Assemblée Nationale et le Sénat.

Elle a fait l’objet d’un recours devant le Conseil Constitutionnel, saisi le 16 avril dernier. Les commentaires ci-dessous sont donc sous réserve de la décision de cette instance.

Le but affiché de cette loi est de donner aux entreprises, notamment les TPE, ETI et PME, les moyens d’innover, de se transformer, de grandir et de créer des emplois. Cependant, cette loi, incluant plus de 200 articles (certains d’entre eux ayant été inclus au gré des amendements successifs), devrait impacter de nombreux pans du droit.

Les principales mesures ayant une incidence en droit social sont les suivantes :

1. Simplification des seuils d’effectifs

Les seuils d’effectifs sont nombreux dans les différentes sources législatives, ce qui ne facilite pas la lecture, par les sociétés, des textes. Des dispositions différentes visaient par ailleurs le calcul des effectifs de l’entreprise.

L’article 11 de la loi Pacte vise à harmoniser le calcul des seuils d’effectifs entre les différentes législations, qu’elles soient inclues dans le Code du travail, le Code de la sécurité sociale, le Code de commerce ou encore le Code général des impôts.

Les principaux seuils d’effectifs retenus sont les suivants : 11 salariés, 50 salariés et 250 salariés. Des obligations différentes s’appliquent à chaque entreprise, selon la tranche dans laquelle elle se situe.

En outre, et c’est l’une des mesures emblématiques de la Loi Pacte, lors du franchissement d’un seuil d’effectif, les entreprises auront désormais 5 ans avant que soient appliquées les nouvelles obligations. Les franchissements de seuil à la baisse seront pris en compte au terme d’une année civile complète.

2. Epargne salariale

2.1 Participation

La réserve spéciale de participation sera désormais répartie proportionnellement au salaire dans la limite d’un plafond fixé à trois fois le montant du plafond annuel de la sécurité sociale (« PASS ») (contre quatre fois ce montant auparavant).

2.2 Intéressement

Les mesures concernant l’intéressement sont plus ambitieuses, mais toutes visent à inciter les entreprises à mettre en place un intéressement (qui, rappelons-le, est facultatif) :

  • La formule de calcul de l’intéressement pourra tout d’abord être complétée par un objectif de performance pluriannuel lié aux résultats ou aux performances de l’entreprise ;
  • La prime d’intéressement, par salarié, sera désormais portée aux ¾ du PASS ;
  • S’il reste un reliquat d’intéressement, ce reliquat pourra être réparti entre les salariés n’ayant pas atteint le plafond individuel selon certaines modalités.

2.3 Actionnariat salarié

Des adaptations sont également prévues pour « stimuler l’actionnariat salarié dans les entreprises privées » :

  • Les entreprises pourront désormais utiliser le mécanisme d’ « abondement unilatéral » (c’est-à-dire sans que les salariés aient besoin de faire un versement) dans le cadre d’un plan d’épargne entreprise selon certaines modalités, qui seront fixées par décret ;
  • Les conditions dans lesquelles les SAS peuvent offrir des d’actions à leurs salariés seront assouplies.

3. Epargne retraite

Selon le Gouvernement, « l’épargne retraite doit devenir un produit phare de l’épargne des Français car elle permet de préparer l’avenir et de financer les entreprises en fonds propres ».

Tout d’abord, un socle commun aux différents produits existants sera créé sous l’appellation « plan d’épargne retraite » (PER). Il vise à permettre aux salariés d’acquérir des droits viagers ou le versement d’un capital payable au plus tôt à la date de liquidation de la pension de vieillesse du régime de base (ou à l’âge légal de départ à la retraite).

Les droits individuels en cours de constitution seront transférables (ou portables) vers tout autre plan d’épargne retraite. Par ailleurs, des cas de déblocage anticipé des sommes seront créés.

4. Autres mesures

La Loi Pacte prévoit également d’autres mesures affectant le droit du travail, et en particulier :

  • Travail de nuit : le travail de nuit, fixé jusqu’à présent entre 21h et 7h, ne sera plus considéré comme tel à partir de 5h du matin ;
  • Preneurs de risque « CRD IV » (« material risks takers ») : le versement de rémunérations variables pourra être remis en cause en cas de méconnaissance des règles de prise de risques sans que cela ne puisse constituer une sanction pécuniaire prohibée. Par ailleurs, les indemnités de licenciement qui leurs sont versées ne prendront pas en compte la part variable de leur rémunération dont le versement peut être réduit ou donner lieu à restitution.
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