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

Amanda Sanders (UK)By Amanda Sanders (UK) on Posted in Europe, General, UK

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

Global Workplace InsiderBy Elodie Grangier on Posted in Contracts, Coronavirus, Europe, France, General

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!

Laure JoncourBy Laure Joncour on Posted in Contracts, Europe, France, General

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

Frank WeberndörferBy Frank Weberndörfer on Posted in Coronavirus, Europe, General, Germany

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

Jordana SanftAllyson Whyte NowakJudith RobinsonBrian R. DaleyBy Jordana Sanft, Allyson Whyte Nowak, Judith Robinson and Brian R. Daley on Posted in Canada, Coronavirus, General

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

Frank WeberndörferBy Frank Weberndörfer on Posted in Europe, General, Germany

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

Amanda Sanders (UK)By Amanda Sanders (UK) on Posted in Contracts, General, UK

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

Amanda Sanders (UK)By Amanda Sanders (UK) on Posted in Contracts, General, UK

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

Charlotte EmmersonBy Charlotte Emmerson on Posted in General, UK

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

Amanda Sanders (UK)By Amanda Sanders (UK) on Posted in Coronavirus, General, UK

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

Catrina Smith (UK)Amanda Sanders (UK)By Catrina Smith (UK) and Amanda Sanders (UK) on Posted in Coronavirus, General, UK

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?

Cornelia MarquardtBy Cornelia Marquardt on Posted in Coronavirus, Europe, General, Germany

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?

Global Workplace InsiderBy Elodie Grangier on Posted in Coronavirus, Europe, France, General

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

COVID-19 / Germany: Admissible measures and co-determination rights

Frank WeberndörferBy Frank Weberndörfer on Posted in Contracts, Coronavirus, Europe, General, Germany

The rapid spread of COVID-19 within Europe and the beginning of the pandemic have led many of our clients to consider how employees and, if necessary, customers can be protected against any further spread of the infection and which employment law related measures should they be taking. We have summarised and answered the main questions in a table below. This table is intended as guide for questions arising at short notice and represents the current legal opinion of our colleagues working in the field of German employment law.

Please note, however, that the current legal assessments, in particular with regard … Continue Reading

United States federal coronavirus law requires some employers to provide paid leave

Marjorie Glover (US)By Marjorie Glover (US) on Posted in Coronavirus, General, North America, United States

On March 18, 2020, President Trump signed into law the Families First Coronavirus Response Act (FFCRA), which provides relief to families and workers facing the global coronavirus pandemic.

The FFCRA provides: (1) free diagnostic testing for coronavirus; (2) food assistance to low-income pregnant women and mothers with young children, food banks, seniors and students; (3) increased federal assistance to state Medicaid programs; (4) enhanced unemployment assistance to affected workers; and (5) paid sick leave and emergency federal Family and Medical Leave Act (FMLA) coverage to certain employees and individuals.

See US: New federal coronavirus response act provides paid leave requirements … Continue Reading

Economic measures taken by the Dutch government in light of the COVID-19 outbreak

Global Workplace InsiderChristine DanielsBy Maartje Govaert and Christine Daniels on Posted in Coronavirus, General, The Netherlands

On 17 March 2020 the Dutch government announced exceptional economic measures. The aim is to protect jobs and incomes and to address the consequences of the COVID-19 outbreak on self-employed professionals, SME-entrepreneurs and large companies. The measures aim to ensure that companies can continue to pay their staff, bridge the gap for self-employed workers and assist companies in maintaining their cash position as much as possible through specific tax schemes, compensation and extra finance and credit proposals. We will focus on the employment measures.

Emergency Fund Bridging Employment

The government introduced the ‘’Emergency fund bridging employment’’ (Noodfonds Overbrugging Werkgelegenheid). This … Continue Reading

COVID-19: Erleichterungen bei Kurzarbeit

Cornelia MarquardtBy Cornelia Marquardt on Posted in Coronavirus, Europe, General, Germany

Um Arbeitsplätze zu schützen und die infolge der Corona-Krise von einem Arbeitsausfall betroffenen Unternehmen zu unterstützen, hat die deutsche Regierung Erleichterungen bei der Kurzarbeit beschlossen. Rückwirkend zum 1. März 2020 können Betriebe bei der Agentur für Arbeit Kurzarbeit beantragen, wenn ein Zehntel (statt bisher 1/3) ihrer Beschäftigten von einem Arbeitsausfall wegen der Epidemie betroffen ist. Wird die Kurzarbeit bewilligt, erstattet die Agentur für Arbeit einerseits durch das Kurzarbeitergeld 60% (bzw. bei Beschäftigten mit Kindern 67%) des Verdienstausfalls und übernimmt – das ist neu – zu 100% die Sozialversicherungsbeiträge. Diese mussten bisher auch im Fall der Kurzarbeit von den Arbeitgebern getragen … Continue Reading

Germany: An Employer’s duties dealing with COVID-19 (Coronavirus) – Q&A

Cornelia MarquardtBy Cornelia Marquardt on Posted in Coronavirus, Europe, France, General, Germany, Italy, Luxembourg, Poland, Russia, The Netherlands, UK

COVID-19 is spreading across the world and companies everywhere are faced with its challenges. In circumstances where a COVID-19 case impacts your German workplace we recommend close coordination with the public health authority on how to proceed. In doing so – especially against a possible liability for illness or even death – it will show that you, as an employer, have taken all reasonable steps to ensure that you have protected your employees. For further guidance please check our Q&A list:

1. Can employees be forced to take unpaid leave or flexitime or to reduce their working hours?

There is … Continue Reading

The UK proposes a new points based immigration system

Lauren Pullen-Stanley (UK)Amanda Sanders (UK)By Lauren Pullen-Stanley (UK) and Amanda Sanders (UK) on Posted in General, UK, Uncategorized

On 19 February 2020 the UK Government published its policy statement setting out its proposals for a new points-based immigration system. Following the UK’s exit from the EU, free movement of workers will cease and all EU and non-EU citizens will be treated equally from 1 January 2021.  The Government will introduce a new immigration system which will be a points-based system giving priority to highly skilled migrants.  This arguably has particular implications for certain industry sectors such as construction, hospitality and social care where many people employed by those sectors are low-paid workers and a significant number of them … Continue Reading

UK: An employer’s duty to its employees in the context of Coronavirus

Amanda Sanders (UK)By Amanda Sanders (UK) on Posted in Contracts, Coronavirus, General, UK, Uncategorized

The World Health Organisation has declared that the Coronavirus is a public health emergency of international concern and the first reported cases have appeared in the UK. What steps should employers be taking in relation to their employees?

Travel to affected areas

Employers owe a duty of care to their employees to take reasonable steps to protect their health and safety and to provide a safe place and system of work. Employers should therefore not insist that an employee travels to an area affected by the virus for work related purposes.  Government advice should be followed, particularly for those UK … Continue Reading

A new immigration landscape: Migration Advisory Committee Recommendations

Lauren Pullen-Stanley (UK)Aida GeragusianBy Lauren Pullen-Stanley (UK) and Aida Geragusian on Posted in General, UK, Uncategorized

The Migration Advisory Committee (MAC) published its widely anticipated report on 28 January 2020, setting out its recommendations for a new UK immigration system to be launched in time for the end of free movement of people on 31 December 2020. The Government will be considering the recommendations in the context of its Immigration Bill, expected to be published in March 2020. The main recommendations are set out below.

Possible role of a points based system

 

1. Skilled worker route for entry with a job offer. The current Tier 2 General category should be retained and apply … Continue Reading

Australia – What to look out for in employment law in 2020

David CrossWilliam DawesBy David Cross and William Dawes on Posted in Asia Pacific, Australia, General

2019 saw many legislative and jurisprudential developments in employment law which should be top of mind for employers moving forward in 2020.  In this article, we summarise the main issues to watch in 2020.

The underpayment crisis – “wage theft”

The recent spate of very public self-reported wage underpayments by businesses has resulted in increased scrutiny into “wage theft”.  The Fair Work Ombudsman (FWO), for example, has prioritised issues of wage underpayment and non-compliance with awards and the National Employment Standards (NES).  The FWO will also take a stronger approach to enforcement in relation to non-compliance, … Continue Reading

Australia – Things to look out for in WHS law in 2020

Katherine MorrisAnnika MartzBy Katherine Morris and Annika Martz on Posted in Asia Pacific, Australia, General

This blog identifies developments in WHS law to watch in 2020:

Industrial Manslaughter Offences

The number of Australian jurisdictions with industrial manslaughter offences in operation will expand this year. Currently, the ACT and Queensland are the only states with such legislation in operation.

The Victorian law, the Workplace Safety Legislation Amendment (Workplace Manslaughter and other matters) Bill 2019 will come into force on 1 July 2020 (potentially earlier), while the Northern Territory legislature has passed similar amendments introducing industrial manslaughter offences to commence operation later in the year but with a date yet to be fixed. Industrial manslaughter laws were … Continue Reading

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