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The National Minimum Wage and care workers who sleep in: Supreme Court decision

The Supreme Court handed down its decision in the joined cases of Royal Mencap Society v Tomlinson-Blake and Shannon v Rampersad and another (T/A Clifton House Residential Home) which concern an employee’s right to the national minimum wage for periods of time when they are required to remain at home on their shift and/or residential care workers who ‘sleep in’ but they are not actually performing some specific activity. The Supreme Court dismissed the two appeals, which will be welcomed by employers in the care sector, providing them with more certainty. In doing so the judges also reviewed previous cases … Continue Reading

The Right To Disconnect

News about young Wall Street analysts asking for an 80-hour working week and employees working from home for a year now due to the Covid pandemic gives rise to the question of whether employees have the right to disconnect. In this blog we will discuss recent legislative developments in the EU as well as the status of the right in the Netherlands.

European legislative initiative

On 21 January 2021 the European Parliament passed a legislative initiative on the right to disconnect. The initiative recommends implementing an EU directive that allows those who work digitally to disconnect outside their working hours … Continue Reading

Employment Appeal Tribunal rules on carry over of holiday pay.

The Employment Appeal Tribunal (EAT) has handed down its judgement looking at a workers right to claim holiday pay.

The claimant, Mr. Smith, worked for the respondent, Pimlico Plumbers between 2005 and 2011, and was considered throughout the six year period to be self-employed independent contractor. As such, he had no entitlement to paid annual leave, although he took periods of unpaid leave. In 2011, the claimant alleged that the respondent had fundamentally breached the contract and so terminated the contract, claiming for, amongst other things, holiday pay. The initial hearing considered the claimants status, and, having been held by … Continue Reading

UK Home Office announces further changes to immigration routes

Last week the Home Office published a series of changes to the Immigration Rules, many of which will take effect on 6 April 2021.

Graduate Route
In welcome news to many UK employers, the Home Office is introducing a new Graduate route into the UK (under a new section in the rules, called Appendix Graduate). Whilst UK graduates will need to meet a points threshold (in line with the new points based system), applicants will meet this by satisfying the essential criteria to the immigration route: (1) successfully completing their studies with an approved institutions; (2) obtaining a bachelor’s degree, … Continue Reading

UK Pensions: Data transfers from the EU likely to continue uninterrupted

We’re pleased to report what looks like some good news for pension schemes on data protection.

The European Commission has published a draft decision as to the “adequacy” of the UK’s data protection laws. If the draft decision is formally approved by EU Member States, this would allow personal data to flow from the EU or EEA to the UK uninterrupted after a temporary arrangement put in place at the start of this year expires. This is the so-called “data bridge” agreed as part of the Brexit Trade and Cooperation Agreement, which will last until the end of April or … Continue Reading

Budget – Immigration Proposals

In addition to the measures referred to in the Budget which are aimed at addressing the immediate challenges of COVID-19 and putting the UK’s public finances on a sustainable footing in the medium term, the Government stated in the Budget that it recognised the importance of creating the conditions for an investment-led recovery driven by private sector growth. In view of this, in the Budget, the Government has made a number of immigration policy decisions which it regards as modernising the UK’s immigration system to help the UK attract and retain the most highly skilled, globally mobile talent – particularly … Continue Reading

Extension of Coronavirus Job Retention Scheme until end September 2021

In the budget on 3 March 2021, the Chancellor announced that the Coronavirus Job Retention Scheme (the CJRS) would be extended until the end of September 2021. The CJRS was due to end on 30 April 2021, but with many restrictions (in particular in the hospitality and leisure sectors) not being fully lifted until June at the earliest, the Chancellor was under pressure to extend the scheme. There are however changes to eligibility criteria and contributions under the scheme.

From 30 April 2021 until 30 June employees who are placed on furlough under the CJRS will continue to receive 80% … Continue Reading

“Stale” and “ineffective” training is insufficient to establish the reasonable steps defence

A recent decision of the Employment Appeal Tribunal (EAT) in Allay (UK) Limited v Mr S Gehlen provides useful guidance to employers seeking to rely on the “reasonable steps” defence to a claim of discrimination, harassment or victimisation.

An employer can be liable for acts of discrimination, harassment and victimisation carried out by its employees in the course of employment, even if the employer was not aware of those acts (section 109(1) of the Equality Act 2010). However, there is a potential defence available to an employer under section 109(4) of the Equality Act 2010 if it can show that … Continue Reading

Supreme Court decision in Uber v Aslam

The Supreme Court has today handed down its decision in Uber BV and others v Aslam and others, upholding the Employment Tribunal decision that the drivers are ‘workers’ within the meaning of S.230(3)(b) of the Employment Rights Act 1996 (ERA 1996) and the equivalent definitions in the National Minimum Wage Act 1998 (NMWA 1998) and the Working Time Regulations 1998 (WTR 1998).

There are three levels of employment status in the UK: self-employed, worker and employee. Self-employed individuals are not entitled to the same employment protections as workers and employees, and so, for example, are not entitled to protection … Continue Reading

What options do working parents have when trying to balance their work and home responsibilities during the pandemic?

The current national lockdown in the UK has imposed school and childcare closures for all but those children of essential key workers. Even prior to lockdown measures, many children were being sent home regularly to isolate, due to a positive case of Covid-19 in their class or school bubble. This has inevitably left many working parents struggling to balance their work with caring responsibilities, whether this is balancing duties while working from home, or managing childcare in order to go into the workplace if working from home is impossible.

To date, there are currently no emergency provisions in place for … Continue Reading

The COVID-19 vaccine @ work: a Dutch employment law perspective

At a time when the world is suffering from the COVID pandemic, hope rests in the advent of Covid-19 vaccines. In addition, employers are trying to anticipate the ever-changing situation in the workplace. In doing so, they must adhere to existing laws and regulations, which were not written with a situation like this in mind. The vaccination program is slowly but surely getting underway in the Netherlands. The question becomes: as the COVID-19 vaccine becomes available to everyone in the near future, is it possible to require employees to get the vaccine before returning to the workplace?

Can employers require Continue Reading

Germany: COVID-19-vaccination and employment law

In Germany, employers are obliged to take all necessary measures, including those to protect against infection (such as offering working from home, increased hygiene protections, social distancing and behavior) and offering voluntary company vaccination programs, in order to protect the health and safety of the workers in the company and to fulfil their obligations under occupational health and safety law. The newly developed vaccines are offering some hope in turning the tide in the fight against COVID-19. The Federal Labor Court (Bundesarbeitsgericht – BAG) had already provided guidance to employers on their obligations and liability in connection with employer-initiated … Continue Reading

Collective Redundancies: 90 day rolling reference period

The Collective Redundancies Directive (98/59/EC) (the Directive) sets out consultation requirements for employers where a set number of redundancies are contemplated within a specified time frame, being either 30 or 90 days depending on the member state concerned.

In the UK, the Directive is implemented through the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA). Under section 188, TULRCA requires employers to consult on its redundancy proposal with those affected, where it proposes to dismiss 20 or more employees at one establishment within a reference period of 90 days or less. The required consultation period is either 30 (20-99 … Continue Reading

Germany: Home office under the new Corona Occupational Health and Safety Ordinance

To combat and prevent the further spread of COVID-19 (the SARS-CoV-2-virus), the German government has issued a new “SARS-CoV-2 Occupational Health and Safety Ordinance” (Corona-ArbSchV) (the Ordinance) providing for additional and time-limited measures to reduce workplace-related personal contacts. These measures include the obligation for employers to offer their employees home working, unless there are compelling operational reasons not to do so. In addition, existing occupational health and safety regulations will be tightened.… Continue Reading

Will COVID-19 vaccinations become mandatory for employees in Italy?

Italy’s COVID-19 vaccination programme is underway, with health care workers and staff in care facilities at the front of the queue. According to a recent report published by the Health Ministry, more than 1 million people received the inoculation in the first two weeks of the nationwide vaccination campaign. This makes Italy one of the fastest-vaccinating countries in the European Union, but the roll out is still not going as quickly as hoped. The current supply of the vaccine is sufficient only to inoculate a small minority of eligible people in Italy and a definitive plan for effective and efficient … Continue Reading

UK: The end of the Brexit implementation period – implications for pensions

At 11pm on December 31, 2020, the Brexit implementation period ended and the last-minute trade deal agreed by UK and EU negotiators took effect through the EU-UK Trade and Cooperation Agreement (TCA).  What does this mean for UK pensions and what steps should employers and trustees be taking?

What is the impact on UK pensions law?

UK pensions law remains basically unchanged following the end of the implementation period and the TCA coming into force.  It is not expected to change significantly in the short term.

For example, any trustees or employers hoping this may spell the end to the … Continue Reading

The EU- UK Trade and Cooperation Agreement – implications for employment and immigration

On 31 December the UK parliament implemented the European Union (Future Relationship) Act 2020. This makes provision to implement into UK law the three main future relationship agreements with the EU including the EU Trade and Cooperation Agreement (TCA). What does the TCA mean for employment and immigration law?

Employment

A significant portion of UK employment law is derived from and grounded in EU law. Under the EU Withdrawal Agreement all EU employment legislation which had effect on 31 December 2020 is adopted into UK law and so workers’ rights which existed prior to the end of the implementation period … Continue Reading

L’accord national interprofessionnel du 26 novembre 2020 : « soft law » à la française

Le télétravail s’est largement développé en France au fil des années, et naturellement, ce mode de travail a été particulièrement utilisé, bon gré mal gré, par les entreprises au cours de l’année 2020, à la faveur de la crise sanitaire, et des recommandations (plus ou moins liantes) du Gouvernement.

Les bases du télétravail ont été posées par un accord national interprofessionnel signé par les partenaires sociaux en 2005 (étendu en 2006), dont certaines dispositions ont été transposées par une loi du 22 mars 2012 dans le Code du travail. Ces règles ont eu pour objet de créer un véritable statut … Continue Reading

Can French employers require their employees to get the Covid-19 vaccine?

Further to the approval by EU authorities of the vaccine developed by BioNTech and Pfizer, and further to the recommendations of the French Health authorities on the vaccination programme, the French vaccine campaign against Covid-19 was launched yesterday, at the same time as in all EU countries.

In France, the Government established a specific strategy regarding the vaccine campaign. This includes targeting the most vulnerable and exposed persons first, and progressively extending the Covid-19 vaccine to the rest of the population.

French employers are now asking whether they can insist that employees are vaccinated before returning to the workplace. However, … Continue Reading

Rupture conventionnelle : les pièges à éviter

La rupture conventionnelle a connu un grand succès tout au long de ces dernières années.

Il est vrai qu’elle allie facilité d’utilisation tout en assurant une sécurité juridique et financière au salarié qui souhaite quitter son emploi.

La rupture conventionnelle consiste en une rupture amiable du contrat entre le salarié et son employeur tout en permettant au salarié de bénéficier d’une indemnité de départ et de l’assurance chômage.

La procédure est relativement simple. Il convient d’organiser un ou plusieurs entretiens de négociation entre l’employeur et le salarié, de compléter et signer le formulaire fourni par l’administration, d’envoyer le formulaire à … Continue Reading

Government consultation on reform of post-termination non-compete clauses in employment

On 4 December 2020, the UK Government launched a consultation on reforming post-termination non-compete clauses in employment contracts. The consultation seeks views on proposals to require employers to pay employees for the period of the restriction; requiring employers to provide additional transparency by providing in writing the exact terms of the non-compete clause before their employment commence; introducing a statutory limit on the length of non-compete clauses; or, alternatively prohibiting the use of such clauses altogether.

Post termination restrictions or restrictive covenants are often included in employment contracts. Non-compete clauses are one type of restriction, which limits an employee’s ability … Continue Reading

The Financial compensation for a non-compete provision can be invalid if too high says the French Supreme Court!

In France, the rules governing post-termination, non-compete and/or non-solicitation clauses in employment contracts have been established through case law. Restrictive covenants in an employment contract are only considered enforceable by French courts if they meet the following criteria (which are cumulative) :

– They do not extend beyond what is reasonably necessary to protect the legitimate interest of the employer;

– they are limited in terms of activity, geographical area and duration and the extent of the restrictions should be adapted appropriately to reflect the specific employee’s status and duties;

– they comply with any applicable sector-wide collective bargaining agreement; … Continue Reading

Can employers require their employees to get the Covid-19 vaccine?

With the announcement that one of the Covid-19 vaccines has received approval from the UK regulator, employers are now asking whether they can insist that employees are vaccinated before returning to the workplace. There are clearly legal and moral issues that need to be considered.

Firstly, the anticipated Covid-19 vaccination programme in the UK will not be made mandatory as the UK government does not have legal power to do this, alongside the challenges and human rights concerns this would raise in any event. The UK Government has the power to prevent, control or mitigate the spread of an infection … Continue Reading

Transfert partiel d’entreprise : les errements de la Cour de cassation

Dans une décision du 30 septembre 2020, la Cour de cassation revient une nouvelle fois sur le sort des salariés transférés dans le cadre d’un transfert partiel d’entreprise.

Lorsqu’une partie de l’activité d’une entreprise est transférée à un repreneur, il convient de vérifier si les salariés transfèrent également à ce repreneur. Aux termes de l’article L1224-1 du Code du travail, le contrat de travail des salariés attachés à cette activité est automatiquement transféré au repreneur si une entité économique autonome est transférée.

L’entité économique autonome est définie par une jurisprudence constante comme un ensemble organisé de personnes et d’éléments corporels … Continue Reading

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