Employment & Benefits updates

Chile

Contributed by Porzio Rios Garcia
Conversation recorded by concealed voice recorder accepted as valid evidence
  • Chile
  • May 16 2018

Evidence used in employment cases must be obtained in a lawful manner and in accordance with fundamental rights, such as due process. However, a recent Supreme Court decision has fostered debate about the protection of fundamental rights within the context of an employment relationship. The court found that a conversation recorded without consent by a concealed voice recorder at a meeting could be considered valid evidence and did not violate the fundamental rights of the individuals recorded.

Supreme Court casts doubt on non-unionised employees' right to collective bargaining
  • Chile
  • May 02 2018

The right to collective bargaining for non-unionised employees is a contentious issue following the recent labour reform. The Supreme Court recently decided on constitutional protective action, finding that the Labour Inspectorate need not register a collective agreement with a non-union employee group. Although this has not rendered such agreements illegal, it has increased the uncertainty around them and may discourage them in future.


Cyprus

Contributed by George Z Georgiou & Associates LLC
New legislation for pregnant women and new mothers in workplace
  • Cyprus
  • June 06 2018

Parliament recently introduced new legislation that aims to promote and support breastfeeding in the workplace and enhance the legal protection for working pregnant women and new mothers. One law established the minister of health as the competent authority for the promotion and protection of breastfeeding, while another extended the period during which pregnant women are protected against dismissal and established the right for working mothers to breastfeed or pump and store milk in the workplace.

New definitions of employee 'undeclared work' and 'undeclared earnings' introduced
  • Cyprus
  • February 21 2018

The Social Insurance (Amendment) Law was revised in June 2017 to introduce definitions of 'undeclared work' and 'undeclared earnings'. 'Undeclared work' is defined as the insurable employment of an employee or a self-employed person which has not been declared to the Ministry of Labour, Welfare and Social Insurances, while 'undeclared earnings' are defined as the insurable earnings for which an employer has not submitted a statement of earnings and contributions within the required deadline.

Recent changes to employment law – an overview
  • Cyprus
  • December 06 2017

A number of new employment-related laws have been adopted in 2017, including the long-awaited Protection of Paternity Law and the Protection of Maternity (Amendment) Law, which introduced the concept of surrogacy. Amendments to existing laws regarding redundancy and smoking in the workplace have also been made.

Parliament votes to introduce Protection of Paternity Law
  • Cyprus
  • October 11 2017

Parliament recently voted to introduce the Protection of Paternity Law. The law came into force on August 1 2017 and gives fathers in Cyprus the right to two consecutive weeks' paid paternity leave. The law has introduced statutory family-friendly rights to Cyprus for the first time, giving employers the opportunity to incentivise and support parents in their workforce.

Court of Appeal overturns Industrial Disputes Tribunal decision
  • Cyprus
  • August 16 2017

The Court of Appeal recently overturned a decision of the Industrial Disputes Tribunal, stating that an employee's termination was not unlawful, but rather due to redundancy in accordance with the Termination of Employment Law. The employee had been served with a notice of termination which stated that her position would be abolished due to changes in the methods of production and modernisation of the organisation.


Denmark

Ministry of Employment liable for replacement holiday damages
  • Denmark
  • March 08 2017

In a recent decision, the Supreme Court considered whether the Ministry of Employment was liable for damages regarding replacement holiday. The court found that the Danish authorities had set aside EU law and were liable for damages. However, as the employee's holiday had taken place in 2010 – before the Holiday Act should have been amended – the employee was not entitled to compensation.

Revisions tabled in 2016/2017 legislative programme
  • Denmark
  • December 14 2016

The government recently presented its legislative programme for the parliamentary year 2016/2017. The programme contains a number of upcoming proposals for amendments within the area of employment and labour law, including proposed amendments to the Holiday Act, the Childbirth Act, the Public Servants Act, the Working Environment Act and the Vocational Training Act.

Relocation and dismissal of disabled employee in flexible job not contrary to Anti-discrimination Act
  • Denmark
  • September 21 2016

A recent Board of Equal Treatment case involved a municipality's alleged discrimination against a disabled employee who was relocated to another flexible job with a reduced salary and later dismissed on the grounds of improving efficiency. The board found that the employee had accepted employment in a new flexible role and that the salary reduction was not an expression of discrimination, but rather a question of applying new rules for flexible jobs.

Senior employee entitled to bonus
  • Denmark
  • July 20 2016

The Maritime and Commercial Court considered whether a senior employee's claim for a bonus payment under a bonus plan constituted 'salary' as defined in Section 17a of the Salaried Employees Act. The court attached significance to the contents of the bonus plan, the purpose of Section 17a and the wish to counter the risk of circumvention. Consequently, the senior employee was entitled to a direct proportional share of the agreed bonus.


European Union

Contributed by Allen & Overy LLP
Transfer of Undertakings: Contracting out of Services
  • European Union
  • December 10 2003

The decisive factor in determining whether the Acquired Rights Directive results in a 'relevant transfer' of employees on a contracting-out is whether there is a stable economic entity which retains its identity. In considering whether an entity retains its identity, a distinction is made between 'asset-reliant' and 'labour-intensive' entities.

Pensions Directive Now in Effect
  • European Union
  • December 10 2003

The EU Pensions Directive, first proposed over 10 years ago, finally came into effect in September 2003. The directive aims to pave the way for pension schemes to operate, and be managed, across EU borders - an attractive proposition to multinational companies due to the potential for cost savings and simplified administration.

Social Partner Text on 'Socially Intelligent' Restructuring
  • European Union
  • October 29 2003

In June 2003 the EU-level social partners agreed a joint text on socially intelligent restructuring, which provides companies with a set of guidelines to follow in order to ensure successful change management. Key recommendations include good-quality, timely and open communications, and developing workers' skills and qualifications.

Working Time: ECJ Rules on Status of On-Call Working
  • European Union
  • October 29 2003

The European Court of Justice has ruled that all on-call duty performed by a doctor required to be present in a hospital constitutes 'working time' for the purposes of the Working Time Directive. This will be the case even where the doctor sleeps at the hospital when his services are not required, and periods of sleep or inactivity do not amount to rest periods.

Commission Consultation on Data Protection in the Workplace
  • European Union
  • October 15 2003

The European Commission is planning a draft directive on data protection in the workplace in 2004 or 2005. Its proposals include a general European framework on the processing of medical data, and limits on the use of data resulting from drug and genetic testing.


France

Contributed by Coblence & Associés
Overview of new rules on employees' elected representation
  • France
  • April 04 2018

The new majority in Parliament has announced, and in some cases already enacted, many changes. Among them, those dealing with employees' representatives are important, as they reshape a significant part of the Labour Code. While these changes are not expected to radically alter industrial relations in the workplace immediately, some of the major modifications and their general characteristics are worth highlighting.

Burden of proof in sexual harassment cases: towards a presumption of guilt?
  • France
  • February 28 2018

Since the Harvey Weinstein case, French society has been shaken by a social media movement in which #balancetonporc ("denounce your pig") has prompted a frenzy of reactions, from women revealing incidents that they had previously kept to themselves to false accusations and endless debate regarding what is considered as offensive. The recent spotlight on this issue provides an opportunity to describe the system in place for cases of sexual harassment in the workplace.

New definition of 'redundancy'
  • France
  • January 03 2018

Since 2016 the government has modified the law on economic dismissal on several points. Under French labour law, any economic dismissal must be justified by actual and serious grounds. Among other recent changes, the introduction of the El Khomri Law has clarified the definition of 'economic motivation' to take into account the Court of Cassation's case law and added two new reasons to the list of economic grounds under the Labour Code.

New compensation rules applicable in case of unfair dismissal
  • France
  • October 25 2017

The new government has upheld its promise to reform French labour law and enacted five ministerial orders, one of which is dedicated to the so-called 'visibility and securing of working relationships'. In particular, a damages scale, which will be mandatory for the judge and parties, will be introduced to provide security and clarity regarding the consequences of potential litigation. This scale, through the predictability that it provides, is meant to remove uncertainty and allow the creation of jobs.