COVID-19
As the impact from coronavirus has dominated headlines across the world in recent months, we have set up an International Feature page covering Covid-19 workforce and employment issues across our international network.
Our Firmwide Feature page also provides timely updates and broader guidance on how to navigate this period of global uncertainty across services and sectors.
Whilst employers all around the world are navigating their way through this pandemic, other notable events or developments that have occurred affecting employment law, in the following jurisdictions, are:
Belgium
Transposition of the posting of workers directive
On 28 May 2020, the draft Act containing provisions, regarding the posting of workers and transposing the provisions of Directive no. 2018/957 into Belgian law, was adopted by the Belgian Chamber of Representatives.
It is important to note that, in 2002, Belgium decided to broadly transpose the 1996 Posted Workers Directive, which meant that from day one of posting - not only the Belgian core labour law provisions apply, but violation of any employment and remuneration conditions laid down in legal, administrative or conventional provisions may be criminally sanctioned. This includes provisions that are laid down in collective bargaining agreements that have been declared universally applicable. As such, the majority of the Belgian labour law provisions are currently already applicable to posted workers from the first day of their employment in Belgium.
Consequently, the transposition of this Directive will have significantly less impact in Belgium, compared to Member States that opted to transpose the 1996 Posted Workers Directive more conservatively. However, the Directive has brought into force a new information obligation applicable to companies that use temporary agency workers posted from another Member State. These temporary agency workers must benefit from the same employment and remuneration conditions as the host company’s local employees and, to that end, the host company must inform the temporary work agency in writing (on paper or electronically) about these conditions.
The Directive also contains an information obligation in addition to the one above and is best explained by the following example. If a French temporary work agency posts a temp to work in Belgium for a Belgian company and that Belgian company decides to re-post that posted worker to temporarily work in the Netherlands, the Belgian company must inform the French temporary work agency of this re-posting before it actually takes place. This way, the French employer can ensure that it also complies with Dutch employment and remuneration conditions applicable to workers posted to the Netherlands. This is applicable to Belgian employers working with transnationally posted temporary agency workers but also to Belgian employers that use employees who are lawfully put at their disposal (either by a Belgian company or not) and decide to post them to another EEA Member State or Switzerland. Also, in this event the Belgian user undertaking will have to inform the employer in writing (on paper or electronically) prior to any posting outside Belgium.
England
Read our key cases and developments affecting employers in the UK over the last month.
- June - Key cases and Key developments
- May - Key cases and Key developments
- April - Key cases and Key developments
- March - Key cases and Key developments
- February - Key cases and Key developments
For more key employment law updates from us:
- scroll through our key dates timeline showing recent and anticipated changes to employment law; and
- attend our upcoming events or catch up on training.
France
Moral harassment
Since the Macron Reforms, in order to circumvent the Macron scale of damages (only applying to damages for unfair dismissal), there has been an increase in moral harassment claims in litigation cases and as a result, more cases have been brought before the Court on this topic, such as:
- The Supreme Court ruled that a mutual termination agreement (rupture conventionnelle) is not valid when the employee was in a situation of moral harassment and suffered from psychological disorders as a result. In such case, the employee’s consent to termination is considered to be void. As a consequence, the mutual termination agreement is deemed null and void. However, every moral harassment does not automatically render the mutual termination agreement void. Each situation must be analysed on a case-by-case basis, keeping in mind that the risk is lower when the parties have been advised by a lawyer.
- In June this year, the Paris Court of Appeal recognised a situation of moral harassment where an employee alleged the withdrawal of tasks, pointing to a lack of work and boredom which had led to the deterioration of working conditions and health. Again, an employee who considers being deprived of tasks is not necessarily considered harassed and must prove the moral harassment with strong evidence.
Child bereavement leave
Employees affected by the death of a child or a dependant of less than 25 years old are normally entitled to 5 days' leave. A recent new law extended this leave to 7 worked days if the deceased child or dependant is less than 25 years old. Moreover, the employee would also receive extended leave if the deceased child is a parent him/herself regardless of their age. This new provision applies to deaths occurring from 1 July 2020.
The law has also created a “mourning leave” of 8 days in case of death of child or dependant of less than 25 years old (which can be cumulated with the above 7 days leave referred to above). This new leave may be taken within a year following the death. It has no impact on the employee’s remuneration, right to paid leave and profit-sharing.
Finally, the employee affected by the death of a child or dependant of less than 25 years old is now protected against dismissal, for 13 weeks following the death. The employee may only be dismissed for gross misconduct or due to the impossibility to maintain the contract regardless of the child/dependant’s death.
Unlocking profit-sharing in case of domestic violence
Further to the debate on violence against women, the Government has created by decree a new case of unlocking profit-sharing. In cases of domestic violence committed by the (current or former) spouse or partner (civil partnership), the employee may unlock in advance the sums held in a company savings plan (which may result from profit-sharing).
The situation of domestic violence is constituted when the family judge has rendered a protection order or when the facts correspond to the definition of domestic violence (as provided by the Criminal Code) and criminal proceedings have started.
The request to unlock the sums may happen at any time. This new provision has been applicable since 7 June 2020.
Germany
Skilled Worker Immigration Act
From 01 March 2020, the Skilled Worker Immigration Act came into force, to counteract the shortage of skilled workers by facilitating immigration of skilled workers from countries outside the EU and EEA.
From now on the German labour market is open not only to highly qualified workers but also to those with recognised vocational training. The obligatory priority check for so-called "bottleneck professions" will no longer be required. Therefore, employees from outside the EU/EEA can now start their employment once they submit an employment contract. It is irrelevant whether there are EU/EEA employees available which are also eligible for the job. In addition, skilled workers from outside the EU/EEA will be allowed to immigrate to Germany for a limited period of time to search for a job if they can (i) prove their German language skills and (ii) support their living costs.
Association Sanctions Law
In May 2020, the government published a draft Association Sanctions Law which, once passed, will significantly expand the possibilities for sanctioning crimes committed from within companies and increase the importance of compliance management systems. With this in place, as the law is intended to ensure that companies take more compliance measures in the future, if companies prove that they have made efforts to comply with the law, sanctions can be reduced or even completely avoided. However, compliance-guidelines are almost always subject to co-determination rights of the works council, so this new law will present challenges under employment law.
Italy
Malus and clawback in exit packages
A decision from the employment division of the Court of Milan involved a dispute between a bank and a former employee regarding payments made, by financial institutions, in the context of exit packages granted to outgoing employees (eg settlement amounts, restrictive covenant consideration, golden parachute clauses).
The court ruled, among other things, that:
- the above amounts must always be governed by malus and clawback provisions; and
- where these provisions are not expressly envisaged, the employer can refuse to pay these amounts if circumstances exist that would allow for malus and clawback provisions to be exercised.
Netherlands
Cumulation of grounds
Employees, employed on the basis of an employment agreement entered into for an indefinite period of time, can only be dismissed if the employer can demonstrate that there is a reasonable ground for dismissal.
Prior to 1 January 2020, the employment agreement could only be terminated if the criteria of one of the statutory dismissal grounds was fully satisfied. From 1 January 2020, a cumulation of grounds for dismissal will be possible and therefore, an employment agreement may be terminated unilaterally if there is a combination of two grounds or more. However, the subdistrict court recently ruled that a request for dismissal on the basis of a combination of grounds was unsuccessful, as the employer insufficiently explained for which reasons the combination of the grounds would justify the dismissal. Therefore, if none of the alleged statutory dismissal grounds are (expected to be) fully satisfied in itself, the employer must come up with additional reasons as to why a combination of these unsatisfied grounds would nevertheless justify the dismissal.
Temporary Agency Workers Directive
The subdistrict court considered that the Temporary Agency Workers Directive (Directive 2008/104/EC) also prohibits a supplier (i.e. being an employer who supplies its personnel to a third party) from preventing an employee from entering into a fixed term employment agreement with the third party who previously hired the employee from the supplier.
The purpose of this prohibition (as implemented in Dutch law) is to improve the employee's access to permanent employment. Permanent employment does not mean an employment agreement for an indefinite period of time but relates more to the security to work at a fixed location, for a permanent employer and with fixed working conditions.
Spain
Progressive increase of paternity leave
The Royal Decree Law 6/2019 came into force, bringing with it a progressive increase to paternity leave:
- As from 1 January 2020, male employees are entitled to 12 paid weeks of paternity leave. The first 4 weeks are mandatory and must be taken right after childbirth, simultaneously to the mother.
- The Decree has increased paternity leave from eight weeks in 2019 to 12 weeks by 2020 and will increase to 16 weeks by 2021, intending to equalise maternity and paternity leave by 2021.
Who is entitled to apply for this paternity leave? All employed male workers in the public, private and self-employed sectors who have had a biological child or have fostered or adopted one. In addition to this, they must be registered within the social security system and have made at least 180 days of contributions within the seven years preceding the start of the leave, or at least 360 days within the course of their working lives.
How should the leave be enjoyed? Once the four mandatory weeks to be taken immediately after birth have elapsed, the father may take the remaining weeks as he wishes on a cumulative or uninterrupted basis but always in weekly periods and, in any case, no later than the date in which the child has turned 12 months old.
The amount of public paternity benefit borne by the Social Security amounts to 100% of the Social Security regulatory base of the last salary received. Please note that the referred amount does not include luncheon vouchers, transport or other bonuses even if the same have been paid in the last payslip.
Government repeals dismissal due to absenteeism
When the Royal Decree Law 2/2020 came into force on 18 February 2020, termination of employment based on objective grounds for failure to attend work, even when justified, was officially repealed.
The system to calculate such absences was complex and entailed taking into account several metrics such as the percentage of absences within specific reference periods, as well as the total percentage of absence in the workplace.
However, not all absences counted towards these effects, such as the following:
- Absence due to a legal strike for the duration of the strike.
- Absence due to the exercise of activities of legal representation of workers.
- Absence resulting from an accident at work, maternity, risk during pregnancy and lactation, illnesses caused by pregnancy, childbirth or lactation and paternity.
- Leave or vacation.
- Illnesses or accidents of a non-working nature when the leave has been agreed by the official health services and lasts for more than twenty consecutive days.
- Absence resulting from medical treatment of cancer or serious illness.
In any case, from now on (as a result of this change of law) it will not be possible to terminate an employee with a reduced severance package as a result of his/her high degree of absenteeism.
National Court ruling regarding working time
The National Court (Audiencia Nacional) has shed some light in relation to new working time regulation in Spain. The Court has declared that workers must register any breaks to smoke, drink coffee or eat breakfast with the aim of allowing the company to deduct such breaks from the total hours effectively worked (reducing in this way any potential overtime compensation of non-effective working time). This ruling ratifies what some companies have been putting in practice with regards to recording working time.
The ruling also confirms that the time invested in travelling during a business trip does not qualify as working time.
Finally, the ruling states that overtime must be authorised beforehand by the person directly responsible (ie the manager). Therefore, employees are not allowed to work overtime and then claim or seek compensation for such unauthorised overtime afterwards.
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