Tag archives: maternity leave

Court holds that it’s not discriminatory to enhance pay during maternity leave, but to pay only statutory shared parental pay during shared parental leave.

In the UK, only female employees are eligible for statutory maternity leave. They are also eligible for statutory maternity pay at a fixed rate during such leave subject to certain conditions – and it is common for employers to pay enhanced maternity pay during periods of maternity leave.

Whilst many employers do not pay enhanced paternity pay to those on paternity leave, it has long been accepted that paying enhanced maternity pay is defensible under the provisions of the Equality Act which state that, when determining whether a man has been discriminated against on grounds of his gender, no account … Continue Reading

EAT holds that paying enhanced maternity pay, but only statutory shared parental pay, is capable of amounting to indirect sex discrimination

In the UK, only female employees are eligible for statutory maternity leave. They are also eligible for statutory maternity pay at a fixed rate during such leave subject to certain conditions – and it is common for employers to pay enhanced maternity pay during periods of maternity leave.

Whilst many employers do not pay enhanced paternity pay to those on paternity leave, it has long been accepted that paying enhanced maternity pay is defensible under the provisions of the Equality Act which state that, when determining whether a man has been discriminated against on grounds of his gender, no account … Continue Reading

Guaranteed wage increase upon return from maternity leave

An employer cannot replace an increase of salary due to an employee returning from maternity leave by the payment of an exceptional bonus.

For the first time, the French Supreme Court has issued a ruling concerning the nature of the salary increase due to an employee returning from maternity leave, as required by article L.1225-26 of the French labor code.

In this particular case, an employee requested an increase of salary calculated on the basis of the salary increases which took place within the company during her maternity leave.… Continue Reading

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

Under German law, an employer can only suspend an employee in certain cases. One of the core obligations of the employment relationship is an obligation on the employer to provide the employee with relevant work to be performed. If it fails to do so without justification, it must nevertheless continue to pay the employee. Notwithstanding this, a mutual agreement to suspend the employee, whether paid or unpaid, is of course always possible.

Suspension without continued payment of remuneration

An employer may not suspend an employee without payment of salary unless it is explicitly provided for by law or in collective … Continue Reading

Do employees who are pregnant or on maternity leave enjoy any special protection in the event of redundancy in Germany?

This post was also contributed by Tony Rau, Trainee, Norton Rose Fulbright LLP (Munich).

German law provides for extensive protection of pregnant employees and employees on leave in connection with pregnancy. Regarding the latter, German law distinguishes between maternity leave (i.e. 6 weeks before until 8 weeks after childbirth – or 6 weeks before until 12 weeks after childbirth in certain cases) and parental leave (i.e. longer periods of leave granted after childbirth in order to care for newborns or children). The relevant rules are primarily aimed at protection against dismissal, but also protect against, for example, certain working conditions … Continue Reading

Do employees who are pregnant or on maternity leave enjoy any special protection in the event of redundancy in South Africa?

Under South African Labour Law, employees who are pregnant or on maternity leave enjoy extensive protection from discriminatory conduct and dismissal if such discrimination or dismissal is directly or indirectly based on their pregnancy. In terms of section 187(1)(e) of the Labour Relations Act, 1995 (LRA), any dismissal based on pregnancy is an automatically unfair dismissal.  Section 6 of the Employment Equity Act, 1998 (EEA) reinforces the Constitutional prohibition against discrimination on the grounds of pregnancy.

Nonetheless, an employer is entitled to dismiss an employee for operational requirements where it can be shown that the dismissal … Continue Reading

Do employees who are pregnant or on maternity leave enjoy any special protection in the event of redundancy in France?

As is the case in many other countries (particularly countries in the European Union, which are covered by EU Directive 92/85/CEE dated 19 October 1992), France has implemented a full set of rules with the goal of protecting pregnant employees or employees on maternity leave against illegitimate termination of their employment contract. These protections also apply in the context of redundancies.

The rules run to the benefit of all female employees, whether employed on a full time or part time basis, including both those on an indefinite term and fixed term employment contracts. However, application of the protective provisions to … Continue Reading

Do employees who are pregnant or on maternity leave enjoy special protection on redundancy?

It is not unlawful in itself to make an employee redundant who is pregnant or on maternity leave. This means that, subject to the special protection enjoyed in respect of alternative employment referred to below, the fairness and lawfulness of the redundancy dismissal will be determined in the same way as other redundancy dismissals. So, as long as redundancy is the real reason for dismissal, the dismissal is carried out fairly and the rules on alternative employment are followed, there will be no liability for unfair dismissal.

However, if the selection of the employee for redundancy is because she is … Continue Reading

Dismissals for established poor performance may – still – be unfair

Just for once, we will talk about French lawyers. We say “for once”, because only a minority of lawyers in France are employees (a very large majority of us are self-employed).

From a French employment law point of view, although the employee in the particular case we will discuss here was a lawyer, that is actually completely irrelevant to the principle at stake, as the decision rendered by the French Supreme Court can be extended to any employee, regardless of their role.

Generally speaking, an employee’s poor performance may result in dismissal, and poor performance is widely used in France … Continue Reading

Key employment law developments expected in 2017

A significant amount of new employment legislation is expected or is already in place for 2017. Key changes will be in the hiring of temporary workers through an agency (referred to as “personnel leasing” in Germany), employee protection and equal treatment.

Reform of laws regarding personnel leasing

One of the main developments in 2017 will be the long expected reform of the German Act on Temporary Employment (Arbeitnehmerüberlassungsgesetz – AÜG), as well as other related laws, with effect from 01 April 2017. Aiming to reinforce the rights of temporary workers during personnel leasing and in particular to prevent … Continue Reading

What rights and protections are there for part-time workers?

This post was also contributed by Dimitri Schaff, Trainee, Norton Rose Fulbright LLP (Munich).

Currently, about one quarter of all employment relationships in Germany are based on part-time models, the proportion of part-time to full-time employees having increased by about 12 per cent since 2001. Furthermore, as a result of the implementation of the EU Part-time Workers Directive 97/81/EC into German law in 2001, an enforceable right for current full-time employees to switch to part-time work exists in Germany. Besides this, employees with children (under the age of eight) may additionally claim the right to part-time parental leave.

Although employers … Continue Reading

What rights and protections are there for workers on zero hours contracts in Germany?

Unlike in the U.K. and other EU member states, zero hours contracts are not (yet) common practice in Germany. To date, other arrangements aimed at achieving “flexible working” such as fixed-term or part-time contracts, secondment of personnel and – more recently – contracts to provide services have been more widespread. However, as German case law and legislation are gradually restricting the flexibility once offered by these arrangements, zero hours contracts are increasingly being used in Germany (in particular with regard to care workers, teachers, and paramedics).

Typical provisions which can be found in employment contracts read for example:

“The working Continue Reading

Fair P(l)ay in Germany? – What measures are in place (or proposed) to address gender pay inequality in the workplace

This post was also contributed by Ebru Tirel, Trainee, Norton Rose Fulbright LLP (Munich).

In Germany, “Equal Pay Day” is widely observed. It marks the day from which women are deemed to start to earn wages in that calendar year, where men have started to earn wages since January 1st. This year, Equal Pay Day was on 19 March.

According to a report of the German Federal Statistical Office DESTATIS dated 16 March 2016 regarding the gender pay gap in 2015, women earn 21 percent less than men. This inequality is due to various factors: Women often choose professions in … Continue Reading

Now streaming: happy new parents – tech employers set a high bar with paid parental leave

Tech industry giants Netflix and Microsoft this week have announced new generous and flexible parental leave policies as an incentive to attract and retain skilled employees in a highly competitive industry. Earlier this week, Netflix introduced an “unlimited” leave policy for new parents to take as much time as they want – with pay — during the first year after a child’s birth or adoption to allow the new family time for bonding and adjustment to the new family lifestyle. The new parental leave policy applies to all full-time, salaried employees throughout its international organization of approximately 2,000 employees.

Microsoft … Continue Reading

Rechtsprechungsänderung: Keine Urlaubskürzung wegen Elternzeit nach Beendigung des Arbeitsverhältnisses

Das Bundesarbeitsgericht änderte mit Urteil vom 19.05.2015 seine Rechtsprechung zur Kürzung von Urlaubsansprüchen, die während einer Elternzeit entstehen.

Grundsätzlich entsteht auch während einer Elternzeit eines Arbeitnehmers ein Urlaubsanspruch. Endet das Arbeitsverhältnis nach Ablauf der Elternzeit, steht dem Arbeitnehmer ein Abgeltungsanspruch für den nicht genommenen Urlaub in Geld zu.

Das bedeutet beispielsweise, dass der Arbeitnehmer, der während des gesamten Kalenderjahres in Elternzeit war und dessen Arbeitsverhältnis nach Ablauf der Elternzeit endet, grundsätzlich einen Anspruch auf Abgeltung des vollen Jahresurlaubsanspruchs hat.

Nach der gesetzlichen Regelung (vgl. § 17 BEEG) darf ein Arbeitgeber den Erholungsurlaub aber um 1/12 für jeden vollen Monat der … Continue Reading

Employers must provide Family Medical Leave Act benefits to same-sex married couples starting March 27, 2015

On March 27, 2015, employers must provide FMLA benefits to same-sex couples who are legally married regardless of whether the employee lives in a state that recognizes same-sex marriage.

What is the FMLA?

The FMLA entitles eligible employees to take unpaid, job-protected leave for specified family and medical reasons. More specifically, eligible employees may take up to 12 workweeks of FMLA leave in a 12-month period for the following reasons:

  • for the birth of the employee’s child and for newborn care;
  • for the placement of a child with the employee for adoption or foster care;
  • to care for the employee’s
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Potential change in US pregnancy discrimination law: Young v. UPS

A potential change is on the horizon for United States pregnancy discrimination law. In the past decade, pregnancy discrimination charges have increased by 35 percent. See Pregnancy Discrimination Charges, US Equal Opportunity Comm’n.

Recently, the EEOC’s General Counsel stated that pregnancy discrimination was one the “areas” in which employers “need[ed] to remind themselves of the law, and [that] they need to comply with the law.” See 5 Questions for EEOC General Counsel David Lopez.

Young v. UPS

On December 3, 2014, the US Supreme Court will hear arguments in Peggy Young v. United Parcel Service, Inc. (“UPS”)Continue Reading

Conciliation travail-famille – endeavour to achieve a work life balance in Quebec

In Quebec, time devoted to paid work has considerably increased over the years. Moreover, the number of single-parent families and households where both spouses work is growing. Consequently, we are left with an increasing imbalance between work and family obligations. Quebec is no exception to this rule. Indeed, the Bureau de Normalisation du Québec (BNQ) acknowledged that the province is dealing with a widespread work-life imbalance.

Consequently, it comes as no surprise that it has become standard for employers to publicize the work-life balance that they offer.

In response to this dilemma, Quebec instituted the four-level Work-Family Balance accreditation in … Continue Reading

Annual leave and employee’s protection following her maternity leave

The legal context

French employment law provides for comprehensive and extensive protection of pregnant employees. In particular, the dismissal of employees is absolutely prohibited during maternity leave; and is prohibited during pregnancy or for employees having just returned to work following maternity leave (within four weeks following the end of maternity leave) except in case of gross misconduct or impossibility to maintain the employment contract for a reason unrelated to the pregnancy or to the employee’s behavior. Any dismissal notified in violation of such protection will be deemed as null and void.

It is common practice in France for employees … Continue Reading

Paternity leave for fathers extended

The Dutch government recently decided to extend paternity leave arrangements for fathers. This gives the father the opportunity to spend a full working week with his child, which (according to a study by the OECD) would increase his involvement in the raising and care of the child. It is important for employers to be prepared for an increase in absence due to paternity leave. Most fathers make use of the current two-day period and it is likely that this will be extended to the full five days in most cases. I summarise the most important changes below.

Changes

  • The paternity
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Norton Rose Fulbright survey on new parental rights in the UK

Last month I posted an article on the changes to parental rights planned in the UK which will apply to children due on or after 5 April 2015. The UK employment team carried out a survey in January and February this year on the impact of the new legislation on UK businesses. Responses were received from over 200 human resources professionals and employment lawyers across a wide variety of sectors. You may be interested in the survey’s findings which have now been published.… Continue Reading

Parental rights in the UK are set to change

At the end of last year we summarised the current statutory rights of parents to family leave in the UK. These are due to change within the next year. The UK Government’s aims are to give parents greater flexibility and choice as to how they take leave on the birth of their child, to remove the traditional view of the mother as the primary carer and to eradicate gender bias in the workplace. Whether they achieve their aims will depend largely on whether parents, and more particularly fathers, take up their new rights.

Current law

Under current law, subject to … Continue Reading

Family Associated Leaves under the Canada Labour Code

The Canada Labour Code, which applies only to employees who work under a federal jurisdiction, sets out a variety of leaves that allow employees to meet their family related obligations. In order to be eligible, an employee must complete six months of consecutive employment with the same employer before the leave begins. These leaves are unpaid although employment insurance benefits may be available during all or a portion of the leave. Employees are entitled to return to the same position or a comparable position at the end of the leave.

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Parental rights in the UK

In the UK there are a number of statutory employment rights enjoyed by employees who are also parents. These rights are subject to change during 2015 when a new system of shared parental leave will be introduced. Employees may also be entitled to enhanced rights under the express terms of their contracts of employment. However, their current statutory rights are as follows.

Maternity leave

Subject to complying with the statutory notification procedures, all employed mothers/expectant mothers, irrespective of their length of employment, are entitled to a period of 52 weeks statutory maternity leave.  39 weeks of this period of leave … Continue Reading

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