Is it Lawful to Dismiss a Chief Accountant When Changing the Owner of the Company Assets?
In its recent ruling of May 27, 2010, the Constitutional Court of the Russian Federation stipulated that it is lawful to dismiss the chief accountant in case the owner of the company assets is changed.
This ruling has been issued by the Constitutional Court in view of consideration of Mrs. Bachalova's appeal regarding violation of her constitutional rights by part 1 of article 75 and paragraph 4 of part 1 of article 81of the Russian Labor Code.
Continue Reading...Recent Developments Regarding Mandatory Retirement Ages in the UK
Removal of Default Retirement Age for Employees
Age discrimination legislation in the UK currently permits employers to retire employees at the age of 65 or older (the default retirement age or "DRA"). The new UK government has announced that it is proposing to phase out the DRA from April 2011, with such retirements ceasing completely on 1 October 2011. After 1 October 2011, employers wanting to retain a retirement age will need to demonstrate that it is "objectively justified" - in other words that it is a proportionate means of achieving a legitimate aim or aims. The proposals are subject to a consultation that will run from 29 July 2010 until 21 October 2010.
Continue Reading...Huge Increase in Employment Tribunal Claims
The latest annual statistics (PDF) published by the UK's Tribunals Service have revealed a very significant increase in claims received by Employment Tribunals, which are now at their highest ever level. The number of claims in 2009-10 rose to 236,100, representing a 56% increase on the number of claims lodged in 2008-9. However, the report suggests that this is largely attributable to a rise in the number of multiple claims (i.e. arising out of the same or similar circumstances).
A Criminal Conviction Does Not Necessarily Justify a Sanction for a Disciplinary Fault
French courts have ruled that a failing linked to an employee's private life cannot be grounds for a disciplinary sanction by their employer. For example, a court decided that the fact that an ambulance driver couldn't be reached on his professional mobile phone outside his working hours was not a fault, even when such failing took place in the context of an emergency.
Continue Reading...How to Resist the Illegal Actions of Employees at Dismissal
The last few years of the economic growth in Russia encouraged employers to hire more and more employees. But the world financial crisis has significantly changed the situation. Many employers have needed to dismiss employees because of the global cutback of economic activity. Employees at dismissal frequently perform illegal acts in order to avoid dismissal or in order to be dismissed on attractive terms. Continue reading ALRUD's article How to Resist the Illegal Actions of Employees at Dismissal (pdf) for some examples of illegal actions of employees at dismissal in Russia and discourse on the ways employers in Russia can resist these illegal actions and protect themselves.
ALRUD's discussion first appeared in Executive View's "Labour & Employment 2009 Digital Guide."
Golden Parachutes
The problem of "golden parachutes" is very interesting and complicated, especially in connection with labour relations in Russia. At the time of the world financial crisis this problem becomes more crucial than ever before. Due to the lack of financial resources in the market, employers rarely conclude agreements with the clause of golden parachutes and even if they do so the amount of the parachutes is significantly less than before the crisis.
Golden parachutes are also of great interest now because some large judicial trials concerning these provisions occurred recently. Continue reading ALRUD's Golden Parachutes in Russia (pdf) for a discussion of these judicial trials along with a description of the main provisions of golden parachutes.
ALRUD's discussion first appeared in Executive View's "Labour & Employment 2009 Digital Guide."
Employment Newsnotes (Issue 49, Summer 2010)
Employment Newsnotes (PDF) is an occasional publication by
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The forthcoming World Cup - issues for employers
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Prospects for employment law under the
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New
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Immigration - proposal for an annual limit on non-EU economic migrants
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Dangers for employers from professional networking websites (e.g. LinkedIn)
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Constructive dismissal - the Court of Appeal has ruled that an employer cannot 'cure' its breach of contract
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The current debate over reform of the
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Tougher sanctions for breach of data protection laws introduced last April
Employer's Second Thoughts are Permitted in an Unjustified Dismissal
In a dispute recently litigated in Spain, the employer acknowledged that the discharge of the employee was unjustified and thus sought to pay severance. An indemnity package was offered, but the employee never accepted it. In turn, the employee filed suit alleging the amount to be paid should be higher, in conformity with seniority he had accrued. Eventually, the Madrid Superior Court confirmed the court of first instance's ruling by granting the employee's lawsuit.
The issue that truly came into play was that, after such decision, in conformity with Section 56.2 of the Workers' Statute Act, employers are--within five working days after the ruling being notified--legally entitled to pay proper severance or reinstate the employee in his last position with equal rights. In this regard, the Spanish Supreme Court has examined whether an employer's first stance to terminate an employee is binding, or whether a choice between severance payment or reinstatement is still possible.
Continue Reading...Arbitrator Awards Employee $500,000 for "Bad Faith" Termination
A labour arbitrator has awarded a unionized employee more than $500,000 for loss of income, mental suffering, and punitive damages after her employer acted in bad faith when it terminated her employment on the basis that she was malingering when she stayed off work an extra week to recover from surgery.
Continue Reading...Validity of Dismissals in Simplified Share Companies (SAS) in Debate
According to several recent Appeal court decisions, a dismissal of an employee of an SAS company ("Société par actions simplifiée") is void unless the signatory of the notification of dismissal is the president of the company or a duly empowered officer whose power of attorney has been declared to the commercial registry and published on the company's commercial registry extract ("Kbis").
These decisions were based on company law provisions which specify that an SAS is represented towards third parties by its president, whose powers can also be exercised by another officer, subject to provisions to this effect in the bylaws of the company and an appropriate filing with the Commercial Registry.
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