Topic: Contracts

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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 … Continue Reading

What to expect in 2019

Following a Government-commissioned review of employment working practices in the UK which was published in 2017, a number of developments in employment law reform are expected over the coming months.

The Government published its latest proposals in December, covering a number of areas for change, some intended to improve the enforcement of employment rights, some to increase transparency and clarity of rights between employers and workers (including issues relating to employment status) and others to improve the rights of atypical workers. This post highlights some of the key areas for change.

Employment status

A key area for change is in … Continue Reading

The beginning of a revolution (by the French lower courts) ?

French President Emmanuel Macron implemented a significant reform of the French employment code in late 2017, with the intention of providing employers greater flexibility and predictability in managing labour relations.

One of the most controversial measures was the creation of a grid applicable to the amount of indemnities due to employees for unfair dismissal, setting minima and maxima as a function of the length of service of the employee and the headcount of the employing entity.

Prior to the adoption of the grid, courts were free to determine the amount of damages payable to unfairly dismissed employees based on the … Continue Reading

Employees on Long term sickness – when can an employer dismiss?

The Employment Appeal Tribunal (EAT) has recently confirmed that employers should take care when dismissing an employee who is entitled to participate in a permanent health insurance (PHI) scheme and is absent from work by reason of long term ill health. It held that there is an implied term that an employer will not dismiss an employee for incapacity if that would prevent the employee being entitled to long term disability benefits.

Where an employee is absent due to ill health then on termination of employment, the employer may face a claim for unfair dismissal and for disability discrimination.   Capability … Continue Reading

Employee rights on bereavement

In the UK, compassionate leave for employees in the event of bereavement has until now been dealt with by way of employment policies. There have been no specific legal rights on bereavement, whether in relation to the death of a family member or anyone else close to the employee. Any rights which they have to leave and/or pay in these circumstances are dependent on what is agreed with their employer, either by way of contractual rights or rights set out in a workplace policy.

However, following a period of consultation, the Parental Bereavement (Leave and Pay) Act 2018, which for … Continue Reading

Dismissal for misconduct cannot be based (solely) on anonymous reports

Anonymous reports have been mistrusted for a number of years in France, for historical reasons. While anonymity enables individuals to raise their voice more openly, without being the targets of retaliation measures, it can also drift into slander.

This explains a specificity of French law under which whistleblowers using ethicals lines are strongly encouraged to disclose their identity since generally speaking, , anonymous reports are not acceptable (although a limited number of exceptions are available).

It is only very recently that the French Supreme Court had to resolve a case involving an employee dismissed on the basis of anonymous reports.… Continue Reading

Legal update: Minimum protection for Gig Economy workers in Italy and in the international context

The need to update existing labour laws in light of the rapid changes introduced by the digital economy is one of principal issues under the “new ways of working” debate and has made the  headlines in many Italian papers, including the leading daily, Il Sole24Ore.  We need to use the legal tools that are available to us today, with modifications if necessary, in order to meet the challenges of the so called “gig economy”.

Are the atypical employment relationships governed by digital platforms autonomous or subordinate in nature?  This is the crucial question to consider when determining the rights and … Continue Reading

National Minimum Wage – “On Call”, “Sleep In” employees

The Court of Appeal has held that carers who carry out overnight “sleep-in” shifts are not entitled to be paid the National Minimum Wage (NMW) for the full duration of the shift, only when they are actually performing work.

The UK National Minimum Wage Act 1998 creates the right for workers in the UK to be paid an hourly rate of remuneration for work carried out. The National Minimum Wage Regulations 2015 (the 2015 Regulations) (and its predecessor the National Minimum Wage Regulations 1999 (the 1999 Regulations ))  contain complex provisions relating to how employers should calculate the number of … Continue Reading

Overtime and holiday pay – non-guaranteed and voluntary overtime

The Employment Appeal Tribunal (EAT) in the UK has recently considered whether voluntary as well as non-guaranteed overtime should be taken into account in calculating the amount of holiday pay. The question arose both under the terms and conditions of the claimants’ employment, but also pursuant to the EU Working Time Directive (No.2003/88) (WTD).

The case involved a group of employees in an NHS trust, who brought claims for unlawful deductions from wages, relating to two types of overtime – non-guaranteed overtime and voluntary overtime. Non-guaranteed overtime related to payments, where, at the end of a shift, one of the … Continue Reading

Le temps de trajet des salariés itinérants n’est (définitivement) pas du temps de travail effectif

La détermination du temps de travail effectif des salariés est un sujet complexe, et l’enjeu est considérable pour les salariés dans la mesure où ce temps de travail effectif a un impact direct sur leur rémunération.

C’est encore plus vrai pour les salariés itinérants, dont les fonctions impliquent des temps de trajet importants (notamment entre leur domicile et le lieu d’implantation des clients de l’entreprise pour laquelle ils travaillent, qu’il s’agisse du premier client visité dans la journée ou le dernier client).

Comment doivent être pris en compte ces temps de trajet ? Sont-ils constitutifs d’un temps de travail effectif … Continue Reading

Appointing Contractors through a personal service company – employment and tax implications

Following on from the recent cases on employment status there has been much discussion regarding how individuals should be appointed. Whilst some commentary has suggested that companies should consider appointing their contractors through Personal Service Companies (PSC’s), is this an ideal solution?

Currently, where a private sector employer appoints a contractor who operates through a PSC, the client company does not have to deduct income tax or NICs under PAYE from payments made to the PSC or pay employer’s NICS. The individual typically receives a small salary and dividends from the PSC and it is up to the individual to … Continue Reading

Visual contracts: Re-imagining the employment contract

We had the pleasure of assisting global engineering and infrastructure advisory company Aurecon become the first employer to launch a visual employment contract across its workforce in Australia.

The brief?  To assist in re-imagining the standard written employment contract into an interactive and vibrant agreement, which governs the employment relationship and embodies the culture and values of the business.

To learn more about how comic illustrations and avatars replaced legalese, removing 4000 words from the original contract, please refer to Aurecon’s website and/or the AFR’s website.… Continue Reading

Freedom to tweet – no power to terminate public servant for anonymous political communication

The AAT has found that the termination of employment of a former public servant who tweeted anonymously trespassed on the implied freedom of political communication and was therefore unlawful, in a decision which examined the scope and application of the Public Service Act 1999 (Cth) (PSA) in the context of reviewing a denied workers compensation claim.

Michaela Banerji brought proceedings in the AAT seeking review of a decision by Comcare to deny her workers compensation claim for a post-traumatic stress disorder she developed because of a decision by the Department of Immigration and Citizenship (Department) to … Continue Reading

You can’t escape award coverage with a fancy job title and a big salary

In our experience, many employers are under the false impression that, if they put an employee on a ‘common law contract’ and give them a fancy job title, they will be award-free, particularly if they are paid well above the award rates.

The recent case of Karen Muscat v Chase Commercial Pty Limited [2018] FWC 1398 reminds us that this just isn’t always true.… Continue Reading

“Casual” employee awarded 15 years of annual leave

The recent case of Apostolides v Mantina Earthmovers & Constructions Pty Ltd [2018] FCCA 279 serves as a useful reminder to ensure that your organisation’s award or agreement covered casual employees are “engaged and paid as such”.

In this case the Federal Circuit Court determined that an employee whom the employer purported was a casual employee, was in fact permanent and was owed a payment in lieu of notice and 15 years’ worth of annual leave payments.

The case very much turns on its facts, which are, in summary:-

  • There was no written contract of employment or written terms setting
Continue Reading

Norton Rose Fulbright’s online guide to global employment law is now available

More and more organisations are growing their global footprint and need to move their people around the world. In this global environment, it is essential to know, understand and comply with employment and labour laws in place across all of the jurisdictions in which organisations engage people. This will help to protect business from unnecessary risk, whether legal, financial or reputational.

We have launched a new interactive online version of our Global employment law guide first published in 2015.

Featuring 28 jurisdictions, our interactive guide helps clients navigate the often disparate and diverse national employment and labour laws, in particular … Continue Reading

The UK Government’s Good Work Plan

(Note: Since drafting this post, the Government has published the consultation documents so a further update will follow.)

 

The UK Government has today (7 February) announced its Good Work Plan (the Plan) in response to the Taylor review of Modern Working Practices published last year which set out a number of recommendations, in particular with regard to the so-called “gig economy”. It provides a brief outline of what is proposed but, so far, without the detail needed to clarify its precise plans.

The Government promises to “act” (largely dependent on consultation) on almost all of the Taylor … Continue Reading

Un salarié protégé peut-il contester la rupture conventionnelle homologuée dont il a fait l’objet devant le juge judiciaire ?

Les salariés protégés (représentants du personnel, délégués ou représentants syndicaux, salariés mandatés, etc.) bénéficient d’un statut particulier, eu égard à leur rôle dans l’entreprise. A ce titre, toute modification, et a fortiori, rupture de leur contrat de travail doit être autorisée par l’inspection du travail.

La conclusion d’une rupture conventionnelle homologuée, quand bien même il s’agit d’un mode de rupture qui suppose l’accord du salarié, ne déroge pas à cette règle. Afin que la rupture conventionnelle soit valablement conclue, l’employeur doit par conséquent solliciter et obtenir l’autorisation de l’inspection du travail.

Cette procédure a une incidence directe sur le contentieux … Continue Reading

Recent developments in French employment law regarding financial institutions: How the French Government wants to enhance Paris’ attractiveness as a global financial place

Apart from certain provisions which may be tailored to the relevant situations negotiated by companies or sectors of business through collective agreements (subject to compliance with a number of basic rules and principles), French employment law does not include any specificities in relation to certain sectors of business.

In particular, financial institutions are subject to the same set of rules as any other French company.

However, this may change in the next few weeks or months.

As part of the process of ratification of President Macron’s ordinances reforming the French labour code,  the French National Assembly adopted on 23 November … Continue Reading

What rights does an employer have to suspend an employee in France?

Under French labour law, there are limited circumstances under which employers may suspend employees.

One of the main obligations imposed on employers is to provide employees with work to be performed  (and obviously to pay them in consideration for their work). Breach of this requirement may be considered as a ground for breach of contract, and the relevant employee can claim the equivalent of constructive dismissal which  in practice has the same consequences as an unfair dismissal).

In practice, there are two types of suspensions provided by the French labour code:

1. Disciplinary suspension (“mise à pied disciplinaire”)

Continue Reading

French employment code reform: Focus on economic dismissals

French President Emmanuel Macron has signed five ordinances making important changes to several aspects of the French employment code. The ordinances, which were immediately published in the French Official Journal on September 23rd, 2017, are aimed in particular at providing employers more flexibility and predictability in labour-management relations.

Several provisions of this ambitious reform (the “Reform”) – numbering 159 pages and providing for 36 measures – are already in force.

Due to the significant amount of amendments to French employment regulation provided by the Reform, we have chosen to focus in our third article on the amendments relating to economic … Continue Reading

Where should an employment dispute be litigated when an employer’s business and an employee’s residence are located in different jurisdictions?

Where an employer hires an employee who resides in a different jurisdiction, the jurisdiction in which an employment dispute is litigated depends largely on where the employer carries on business.

In Koutros v. Persico USA, 2017 ONSC 3001, the employer, Persico USA Inc. (“Persico”) terminated the employment of Savvas Koutros, who was a General Manager of its Michigan, U.S. facility. Mr. Koutros resided in Windsor, Ontario and commuted to Michigan for work. Mr. Koutros filed a wrongful dismissal action in Ontario. Persico brought a motion to dismiss the claim on the basis that Michigan was the … Continue Reading

French employment code reform: Focus on dismissal procedure and indemnity

French President Emmanuel Macron has signed five ordinances making important changes to several aspects of the French employment code. The ordinances, which were published in the French Official Journal on September 23rd, 2017, are aimed in particular at providing employers more flexibility and predictability in managing labour relations.

Several provisions of this ambitious reform (the “Reform”) – numbering 159 pages and providing for 36 measures – are already in force.

Due to the significant amount of amendments to French employment regulations provided by the Reform, we have chosen to focus in our second article on the new regulations regarding changes … Continue Reading

French employment code reform: Focus on homeworking

French President Emmanuel Macron has signed five ordinances making important changes to several aspects of the French employment code. The ordinances, which were immediately published in the French Official Journal on September 23rd, 2017, are aimed in particular at providing employers more flexibility and predictability in labour-management relations.

Several provisions of this ambitious reform (the “Reform”) – numbering 159 pages and providing for 36 measures – are already in force.

Due to the significant amount of amendments to French employment regulation provided by the Reform, we have chosen to focus in our first article on the new regulations regarding homeworking. … Continue Reading

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