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Germany: Exclusion clauses put to the test

Regularly agreed in employment contracts, exclusion clauses shorten the statutory limitation period for claims arising in the employment relationship and ensure certainty between employer and employee especially with regards to claims that are years old. In a remarkable decision the German Federal Labour Court (BAG, 26.11.2020 – ref. 8 AZR 58/20) has fundamentally changed the case law with regard to the drafting of these clauses. A large number of the exclusion clauses used in practice are now likely to be ineffective.… Continue Reading

SafeWork NSW approves Code of Practice on managing psychosocial hazards

SafeWork NSW has approved Australia’s first Work Health and Safety (WHS) Code of Practice on managing psychosocial hazards at work (the Code). The Code took effect on 28 May 2021.

The WHS Act provides that an approved code of practice is admissible in Court proceedings as evidence of whether or not a duty or obligation under the WHS Act has been complied with. A Court may have regard to an approved code of practice as evidence of what is known about a hazard or risk, risk assessment or risk control, and rely on the code of practice in determining what … Continue Reading

Is the failure to enhance shared parental leave pay discriminatory when adoption leave pay is enhanced?

In the case of Price v Powys County Council, the Employment Appeal Tribunal have upheld the tribunal’s decision that there is no sex discrimination where an employer pays a man on shared parental leave less than a woman on adoption leave.

In the UK, Shared Parental Leave (SPL) provides flexibility for parents to take leave to care for their child. Eligible parents can take up to 50 weeks  SPL in the first year after the birth of their child, or in the first year after their child’s placement for adoption, with up to 37 weeks of Shared Parental Pay … Continue Reading

US: OSHA Notices HazCom Hearing

We reported previously on federal OSHA’s efforts to revise and update various provisions of the Hazard Communication Standard in order to pursue greater workplace safety.  On May 20, 2021, OSHA announced an informal public hearing commencing on September 21, 2021 for the purpose of entertaining stakeholder comments and recommendations.  For more information, please see this Trade Release, or reach out to us with any questions.… Continue Reading

Who bears the investigation costs for compliance violations?

Carrying out investigations to determine violations of compliance rules can cause considerable costs for companies. In a recent decision, the German Federal Labor Court (BAG, 29.4.2021 – ref. 8 AZR 276/20) has now clarified the circumstances in which an employee must bear the costs of investigations in connection with allegations of breach of compliance rules by that employee.… 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

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

US: Latest California Labor & Employment Developments from January 2021

This past month saw the inauguration of President Biden, who promptly took steps that will have an immediate impact on California employers. Plus, new COVID-related laws took effect, some expired (but may be re-enacted), and a federal appeals court eased the meal/rest break burden on the transportation industry. For a brief summary of these an other California labor and employment law developments from January 2021, read our California wrap-up: The top five employment and labor developments for California employers in January 2021.… 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

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

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

Sick leave under German employment law: Termination, medical certificates by phone and latest topics

Termination in case of the threat of taking sick leave

Employees who respond to an instruction by their employer with the threat of taking sick leave can be dismissed without notice. It is irrelevant whether the employee actually falls ill later or whether the instruction by the employer was unlawful. In a recent decision, the Higher Labor Court Rhineland-Palatinate (LAG Rhineland-Palatinate, 21.7.2020 – 8 Sa 430/19) has once again confirmed the previous ruling of the Federal Labour Court.… Continue Reading

Mise à jour sur les lignes directrices des Cours fédérales sur la COVID-19

La Cour d’appel fédérale (CAF) a fourni une mise à jour sur les lignes directrices concernant la reprise des audiences débutant le 1er septembre 2020 et a clarifié l’effet de la Loi sur les délais et autres périodes (COVID-19) fédérale concernant les délais quant au commencement et à la conduite des litiges à la CAF. Tant la CAF que la Cour fédérale ont confirmé que l’ensemble des directives à la pratique, des jugements, des ordonnances et des directives émanant des deux tribunaux restaient pleinement en vigueur.

Reprise des audiences en personne

Le 1er septembre 2020, la CAF a … Continue Reading

Management and foreign languages: Communication with the works council

Managers of international companies are often confronted with the problem of having to communicate with their employees and the works council in a foreign language that they do not fully master. This can easily lead to conflicts. In a recent decision in June, the Nuremberg Regional Labor Court (ref. 1 TaBV 33/19) has now clarified the scope.

The works council of a German branch of a Spanish clothing company demanded that communication with the branch manager, who at the beginning hardly spoke any German, be conducted exclusively in German during meetings or negotiations. Appraisal interviews and staff meetings had been … Continue Reading

Transfer of undertaking to multiple transferees

In a recent case, the European Court of Justice (ECJ) has considered what happens to the employment contract of a transferring worker where there is a transfer of an undertaking to multiple transferees. The ECJ held that the contract should be split in proportion to the tasks performed by the worker of the time devoted to those tasks. However, if the division of the contract is impossible or results in a deterioration in the working conditions and rights of the worker, the contract may be terminated.

The case involved an employee of ISS Facility Services in Ghent. ISS was responsible … Continue Reading

Professional Cyclist held not to be an employee or a worker

The EAT has held that an employment tribunal was entitled to conclude that a professional cyclist was not an employee or a worker of the British Cycling Federation. In Varnish v British Cycling Federation (t/a British Cycling) the claimant had commenced proceedings before an employment tribunal claiming, amongst others, unfair dismissal and discrimination.  The preliminary consideration for the employment tribunal was whether the claimant was an employee or a worker within the meaning of s230 Employment Rights Act 1996.

The claimant had entered into a series of written “Athlete Agreements” with British Cycling (the respondent), the last of which was … Continue Reading

UK points-based immigration system: Further details announced

On 13 July 2020, the Home Office published further details on how the UK’s points-based immigration system will work from 1 January 2021. As set out in the Policy Statement published in February, anyone coming to the UK for work, including EU citizens, will need to demonstrate they meet a specific set of requirements for which they will score points. There is no overall cap on the number who can apply under the Skilled Worker route.

The key change to note is that any employer wishing to employ EU citizens will need to have a sponsor licence and pay the … Continue Reading

UK Government: Plan for Jobs

On 8 July, the UK Chancellor announced proposals to help UK businesses have the confidence to retain and hire staff. The Government announced that the Coronavirus Job Retention Scheme has helped employers pay the wages of 9 million employees across the UK.  However, the scheme will come to an end on 31 October 2020 and as the economy is now beginning to reopen, the summer economic update looks at the Government’s second phase of its response to the Coronavirus with a targeted Plan for Jobs.

The Plan includes the following proposals to support employers:

  • A Job Retention Bonus. This will
Continue Reading

Administrators – adoption of contracts and the Job Retention Scheme

In two recent cases the High Court has considered the adoption of contracts by administrators in the context of applications under the Coronavirus Job Retention Scheme (CJRS).

When an administrator is appointed to a company it is necessary to consider whether the administrator has adopted the contracts of employment under the Insolvency Act 1986 (IA 1986). Under that act, nothing done within the first 14 days will amount to adoption.  However, outside of that 14 day breathing space, case law has held that an administrator will generally be considered to have adopted the contracts of employment if they continue to … Continue Reading

Relaxation of German working time regulations due to COVID-19?

In an effort to fight the effects of the COVID-19 epidemic the Federal Ministry of Labour and Social Affairs (BMAS) is working on a bill to relax restrictions on working time in Germany. Specifically, longer working hours, shorter rest periods and the employment of workers on Sundays and public holidays for certain activities will temporarily be permitted.

The right to issue such a bill without having to seek the approval of the parliament (Bundestag) and the Federal Council (Bundesrat) was granted to BMAS as part of the government’s social protection package passed on 27 March 2020. This new regulation authorizes … Continue Reading

Comment faire face au Coronavirus en France?

Depuis le mois de janvier 2020, l’épidémie de Coronavirus COVID-19 s’est rapidement propagée à travers le monde, causant des milliers de décès.

Le Gouvernement français a réagi en plusieurs temps : après avoir émis des recommandations en matière de gestes barrière, il a ensuite pris la décision de fermer écoles et établissements accueillant des enfants, puis plus récemment a été ordonné le confinement généralisé de la population française et la fermeture de nombreux établissements jugés non indispensables, afin d’assurer la santé publique. Les dernières recommandations du Gouvernement pour les employeurs peuvent être consultées ici.

Dès lors, pour les entreprises ayant … Continue Reading

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