Tag archives: worker

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

Extension of whistleblowing protection

Workers in the UK are protected from suffering a detriment where they have made a protected disclosure under the Employment Rights Act 1996 (ERA 1996). To be protected under section 47B ERA 1996 the individual must be a worker as defined by s203(3) of that Act.  A recent decision of the Supreme Court considered whether the right should be extended to other office holders, in this case a District Judge.

The District Judge is an office holder and as such does not fall within the definition of worker. She made various disclosures regarding the justice system and claimed that she … Continue Reading

Issues of employment status: pseudo self-employment and hidden personnel leasing in Germany

German labour law follows the “all or nothing” principle: Labour law regulations presume an existing employment relationship between employer and employee. If no such relationship exists, protective labour law regulations cannot be applied (with a few exceptions e.g. in the case of managing directors of a “GmbH” (limited company)). Assessing whether an employment relationship exists requires evaluating the nature of the relationship in question and assessing it against the legal definition of “employment”.

As in many other countries, Germany witnessed the trend of reducing core workforces in favour of a more flexible use of external resources. This in particular lead … Continue Reading

A Framework for Modern Employment – House of commons report.

The Work and Pensions and Business, Energy and Industrial Strategy Committees have published a joint report on “A framework for modern employment” (the Report) which considers how the employment framework should be amended to reflect the modern workplace.

The Report acknowledges that “the expansion of self-employment and business models built around flexible work on digital platforms promise positive opportunities for entrepreneurs, workers and consumers alike”, but also stresses that the changes can also create confusion as to the rights and entitlements for workers and can add to the potential for exploitation. The Committees have therefore looked at the recommendations made … Continue Reading

Uber appeal – Drivers have worker status

The EAT has dismissed Uber’s appeal against the employment tribunal’s decision that its 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).   The EAT held that the employment tribunal was entitled to reject the characterisation by Uber of its business in the written contractual documentation and to look at the situation as a whole.

There are three levels of employment status in the UK: self-employed, worker and employee. Self-employed individuals are not … 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

Employee, worker or self-employed?

In UK employment law a person’s employment status determines both their rights and responsibilities. An individual can be an employee, a worker or self-employed.  Whilst traditionally individuals were employees or self-employed there has been a significant rise in “worker” status.  The recent reported case of Aslam and others v Uber BV considered whether drivers had rights as workers or were self-employed.  This case could have a significant impact on all workers in the “gig” economy.

A worker under UK law is defined under section 230(3) Employment Rights Act 1996 as an individual who has entered into or works under a … 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

The results of an alcohol test do not justify a dismissal if based on unenforceable internal regulations

Under French employment law, the issue of alcohol consumption at the workplace is taken very seriously as it could entail significant risks, not only for the employee and his/her colleagues, but also for the company in general (loss of productivity, reputational risks, etc.). Moreover, the employer is bound by a duty of care towards its employees and is required by the French Labour code to prevent employees under the influence of alcohol from working on the company’s premises.

In this context, case law permits employers to have recourse to breathalyzer devices in orders to control the alcohol blood level of … Continue Reading

The CFO of a parent company can validly dismiss employees of a subsidiary

French employment law mandates that it is the employer itself who must notify employees of their dismissal. In this context, and for obvious practical reasons, the employer is entitled to delegate the authority to sign the dismissal letter to another person. However, even though case law has long admitted that in certain situations the dismissal procedure can be conducted by persons who are not on the company’s payroll (for example the HR director of the parent company of the employing entity), it is generally considered that the beneficiaries of such delegation of authority to sign the dismissal letter must belong … Continue Reading

Termination of an employment contract by mutual agreement cannot be used as an alternative to a dismissal

French employment law allows employers and employees to agree on the termination of the employment contract by mutual consent. Such termination must be formalized through the implementation of a “rupture conventionnelle homologuée” (“RCH”) which requires adherence to a formal procedure including, among other things, the requirement to obtain approval from the Labour administration.

The advantage of such termination is that the employer is not required to provide any reasons for the termination, as would be the case if the employment contract was terminated through a dismissal. Nevertheless, employees may bring actions challenging such termination if their consent have … Continue Reading

Working time – Are there any restrictions on an employee’s working week?

Employees’ working time is a hot topic in France, the 35 hour week being the centre piece of working time regulations in France. Although the 35 hour week has been repeatedly criticized over the years, it has remained mostly unchanged. French law also includes more specific and complex provisions for various categories of employees.

Normal working time for employees is the 35 hour week (35 hours being the legal working time). This means that any hours worked over such threshold is considered as overtime which should be paid at increased rates and/or compensated by the allocation of rest periods to … Continue Reading

What rights do employees have to a minimum wage in France?

Under French employment law, employers are generally free to determine the remuneration package to be provided to their employees in accordance with the working of the free markets. However, such liberty is traditionally limited in particular by the principle of equal work for equal pay and the obligations relating to minimum wage.

In this respect, the principal employees’ right is the minimum wage required by law and which extends to all adult employees in France for all sectors of activity. Basically, such minimum wage is a minimum hourly salary below which no employee can be remunerated and is currently fixed … Continue Reading

What protection do employees have against age discrimination in France?

The matter of age discrimination is a particularly sensitive issue in France, where the relatively high unemployment rate of young and aged persons is structural.

In this context, there exist specific legal provisions particularly with regard to the employment of young workers. There is also a national-interprofessional collective bargaining agreement with respect to older workers which recommends ensuring the compatibility of the working environment with the capacities of such workers. However, employees’ protection is principally ensured through the general principle of non-discrimination in the workplace, which prohibits any employer from treating an employee differently on the basis of certain illicit … Continue Reading

Employees’ right to holidays in France

Under French law, all employees are granted a right to paid annual leave, which consists of a statutory minimum number of days subject to any more favourable provisions applicable under any collective bargaining agreement to which the employer (or the sector of business in which the employee is active) is party, the employer’s internal practices or any individual employment contract concluded by the employer with the relevant employee.

Employees’ entitlements to holidays

The right to annual leave is appreciated over a reference period running from 1st June of the previous year to 31th May of the current year and … Continue Reading

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