Employment Trends Europe - February 2019

Training

  • Employment Essentials [UK] - various developments from 2018 – including in relation to parental leave, whistleblowing, #metoo, modern working practices, business protection, gender pay gap reporting and data privacy

Upcoming events

  • Quarterly webinar - European Employment Law Update - 01 March 2019 09:00 - 09:30
    Covering:
    • An update on recent developments in Employment law across our practices in the UK, France, Germany, Italy, the Netherlands and Spain
    • Hot Topic update: Gender Pay Gaps in Europe

Details of webinars, conferences and telephone conference calls covering developments in employment law are available here.

Belgium

Employee thresholds for social elections in 2020

Amendments are expected in the coming months to the current law on social elections (employee representatives selected to represent employees on Works Councils and Health and Safety Committees).

Expected middle of May 2020, all employers employing at least 50 employees (for the health and safety committee) or on average 100 employees (for the works council) must organise social elections to elect the employee representatives to these consultative bodies.

There are indications that the reference period (that allows employers to calculate the number of employees determining if social elections should commence) will be moved forward by one trimester, ie commencing October 2018 and ending September 2019. This means that the reference period could now be running and that any recruitment or dismissals could have an impact on whether employers must organise social elections.

The same will, in principle, apply to agency workers: the reference period will be moved forward by one trimester, ie will commence 01 April 2019 and end 30 June 2019.

Single Permit

On 03 January 2019, new legislation came into force regarding the employment of non-EU workers coming to Belgium for longer than 90 days. The new procedure is called ‘Single Permit’ with only one combined application process for both a residence and work permit. The new application could now take up to 4.5 months, a significant increase from previously.

Softened "end-of-career" regime

From 01 January 2019, a “softened end-of-career regime” may be agreed between the employer and employee, with the objective of allowing older employees to work longer. This should be by written agreement (with certain mandatory provisions). The employer can grant an indemnity to the employee, providing exemption from social security contributions, to compensate for the loss of remuneration.

Mobility budget

An employer may grant a mobility budget to employees as an alternative or an addition to a company car. The budget is different to the ‘the cash for car’ system, as the employee will be able to keep a company car and combine the budget with options for sustainable transport and/or a cash amount. The provisions are expected to come into force in March 2019.

England

Working Relations, our monthly newsletter, reviews the most important cases and developments affecting employers in the UK.

Recent changes

An overview of changes in employment law in England & Wales over the last 12 months is available here.

France

Gender pay gap: Calculation method is released

New law from 2018 has reinforced gender equality pay monitoring (which has existed voluntarily for some time but has not always applied in practice because the rules were not mandatory).

The government has tried to find pragmatic ways of calculating this gap and a Decree has recently been issued using an index of 5 indicator scoring points. The index must be calculated and published (on the Company’s website) starting with companies of 1,000 employees or more from 01 March 2019, and from September 2019 for companies with 250+ employees, and March 2020 for companies with 50+ employees.

If the index indicates points below what is required on the progressive scale, the company must implement corrective measures. If the result is still not compliant after three years then penalties apply, so it is important to that employers start calculating their index and implementing corrective measures if necessary.

Elections of Comité social et économique (CSE) before year end

All businesses, who have not done so, should elect a CSE (previously the Works Council) before end of 2019.

Germany

Change of case law regarding pre-employment ban for fixed-term employment

Under current law, an employer cannot engage an employee on a fixed-term if at any time in the past an employment relationship has existed with that employee.

The Federal Labour Court formerly took the view that, for the assessment of prior employment, only the last three years would be relevant. If employment existed prior to this period, it could be disregarded. This provided legal certainty, as the assessment of previous employment can be quite difficult for employers, especially, if the employment was long ago, documentation is not available, or if the employee was employed by a predecessor.

However, last year the Federal Constitutional Court decided that the interpretation of the pre-employment ban by the Federal Labour Court was unlawful. The relevant section of the Part-time and Fixed-term Employment Act expressly states that every former employment relationship prohibits the agreement of fixed-term employment.

Exceptions can only be made under very limited conditions, eg if the employee completely changed their profession or their former employment was a long time ago. This will be subject to future case law of the labour courts. If a fixed-term is not permissible, the employment will be regarded as indefinite employment by law.

No expiry of annual leave entitlements without reminder

Last year the European Court of Justice decided that annual leave entitlement of the employee shall not expire if the employee has not been reminded of his remaining holidays in time by the employer. This opinion has now been adapted by the Federal Labour Court.

Employers have to provide their employees with a notification about their remaining annual leave entitlement in a timely manner with reference to the imminent forfeiture. If they fail to do so, annual leave entitlements do not expire. As a result, employees can collect annual leave entitlements for years and can be entitled to compensation in case of termination of the employment.

In this context, it will be interesting to see what a sufficient notification should look like. Relevant case law regarding form and timing of the notification is to be awaited. Moreover, it is currently unclear, if a simple notification is sufficient, or if employers have to actively encourage their employees to take annual leave in order to prevent a carry-over.

Italy

Italian Supreme Court: problematic employees can be transferred

Employee transfers are justifiable only when necessary due to technical, organisational and productive needs. However, a recent Italian Supreme Court decision has put a different spin on this requirement, recognising the lawfulness of employee transfers aimed at resolving discordance in the workplace.

Following the Court’s decision, if an employee causes tension in the workplace or has unresolvable difficulty in relating to colleagues, transferring the employee can be considered to be a business need (but must be adequately evidenced by the employer).

The Court also stressed that employment courts should not judge the merits of the employer’s decision to transfer the employee, nor must the decision necessarily have been inevitable to be justifiable. It is sufficient if the transfer had been one of the reasonable possibilities - from a business perspective - that the employer had available when making its decision.

Netherlands

Additional Leave (Introduction) Act

On 01 January 2019, the Additional Leave (Introduction) Act (Wet invoering extra geboorteverlof) (the Act) came into force. The purpose of this Act is to positively contribute to the relationship between the mother’s partner and her child, as well as strengthen opportunities for women within the labour market.

Under the Act:

  • Paternity leave will be extended from two to five days of paid leave (based on a fulltime employment). This extended paternity leave must be taken within four weeks following the birth.
  • From 01 July 2020, partners will be allowed to take five weeks of additional paternity leave, provided that they have taken their initial days of paternity leave. These weeks must be taken within six months following the birth. During these weeks the employee will receive payment, paid by the government, of up to 70% of his daily wage (which is capped currently at €4,660.59 gross per month). Employers may refuse the additional paternity leave request, on account of compelling business interests, up to two weeks prior to the start of the leave. In that case, the employer and employee will agree on different terms regarding the additional paternity leave.
  • An extension of adoption leave from four to six weeks of unpaid leave. During these weeks the employee can request for a benefit payable by the government, up to 100% of their daily wage (which is capped at currently €4,660.59 gross per month). The entitlement to adoption leave exists during a 26-week period and an employee is entitled to take up the adoption leave from four weeks before the child starts to live with the employee’s family and can request to spread out the adoption leave over the aforementioned period of 26 weeks. An employer can only refuse this request on account of compelling business interests.

Spain

Increase of Spanish minimum wage & social security contributions

The Spanish statutory minimum wage has risen by 22.3% this year and is now fixed at €30 per day or €900 per month, not including the prorated part of extraordinary payments. Therefore, the minimum annual wage is now set at €12,600 (900x14). In addition, the maximum social security contribution level has increased from €3.803,70 in 2018 to €4,070,10 for 2019.

Mandatory retirement

Mandatory retirement clauses had been illegal in Spain until a recent Royal Decree at the end of December 2018 (RD 28/2018) that has foreseen the possibility of establishing these within Collective Bargaining Agreements. It should be noted that to be legal, mandatory retirement must fulfil two requirements:

  • the worker must meet all the requirements laid down by the applicable social security legislation for entitlement to 100% of the ordinary retirement pension, and
  • the mandatory retirement must be linked to coherent employment policy objectives agreed in the collective agreement.

Other elexica articles of interest

This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.