EC Boardroom Gender Diversity Proposals Back Away from Mandatory Quotas

By Madeleine Jephcott

DiversityBoardroom.jpgThe European Commission has published a scaled back proposal to increase the number of women on boards, setting a minimum objective of a 40% presence of female non-executive directors in publicly listed companies by 2020.

There is a powerful business case for addressing lack of female representation in top jobs, the reasons for which are varied and largely intractable. International interest in boardroom gender diversity has grown significantly in recent times and in October the EU Justice Commissioner signalled her intention to introduce decisive legislative action on mandatory gender quotas for corporate boards.

Reportedly, the plan was to force Europe's listed companies to reserve at least 40% of board seats for women by 2020 or face fines or other sanctions. However, stiff opposition from a number of EU member states effectively derailed those plans and the Commission has now published watered down proposals.

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Proposals on Shared Parental Leave and Flexible Working Unveiled

By Madeleine Jephcott

Family with a Baby.jpgThe UK Government has set out its plans for a new system of shared, flexible parental leave to be introduced in 2015 and confirmed that it will be extending the right to request flexible working to all employees from 2014.

These proposals originated from the Department for Business Innovation & Skills May 2011 Consultation on Modern Workplaces, which contained a number of proposals aimed at creating more flexible and family-friendly workplaces.

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"Employee-Shareholder" Status to be Introduced

By Richard Lister

StockCertificate.jpgThe UK Government is pressing ahead with plans for a new type of employment contract for "employee shareholders", with a view to implementing the scheme in April 2013.

The proposal, first announced by the Chancellor George Osborne in October, originally referred to "employee owner" status. In essence, the idea is that employees would give up certain employment rights, such as unfair dismissal and statutory redundancy pay, in return for between £2,000 and £50,000 of shares in the company which would be exempt from capital gains tax (CGT). Employers could determine the type of shares offered, including whether they carry voting rights or the right to receive dividends.

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UK Dismissal Protection for Employees with Extreme Political Views Inadequate

By Richard Lister

The European Court of Human Rights (ECHR) has ruled that the UK Government must take measures to protect employees from dismissal on grounds of their political opinions or affiliations, including extreme opinions that others might find offensive or shocking (Redfearn v United Kingdom [2012] ECHR 1878).

There have been various cases over the last couple of years about the types of belief that fall within the definition of a "philosophical belief" for the purposes of discrimination law, as now contained in the Equality Act 2010. However, this case concerned an employee who was dismissed for his membership of a particular political party.

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Working as a Student after Completion of Studies?

An employee is considered a student when he/she is no longer subject to an obligation of full-time compulsory attendance at school but continues to follow a full-time education or part-time education (under certain conditions).

The question arose whether a student who graduated in June who made clear he/she did not want to pursue his/her studies, e.g., by registering as a jobseeker, could still be employed under an agreement for student employment, with a solidarity contribution, until 30 September of the year in which he/she graduated.

The NSSO concluded that, under this scenario, employment cannot, under any circumstances, be used as a disguised probation period under an ordinary employment agreement

Nothing changes for graduates pursuing further study: they continue to be considered as students.

For more information on student employment, we refer to our Newsletter of 23 January 2012.

Action points

  • There is no need to worry about plans to engage a recently graduated student under a student employment agreement during the summer.
  • Remain cautious if the objective is to engage the student under an ordinary employment agreement as of October.

The Unemployment with Company Allowance Regime: The Most Recent Adjustments

One of the action points of the Di Rupo I government was to tighten access to the unemployment with company allowance regime. At the end of December 2011, the age and career conditions specified in the Royal Decree of 3 May 2007 were adjusted (cfr. our newsletter of 13 January 2012).

As a consequence, the regime of unemployment with company allowance as of 58 years for employees with professions involving heavy work was ended with effect as from 1 January 2015. This led to strong protests from the social partners, after which the competent Minister De Coninck announced he would take their comments into account. With the Royal Decree of 20 September 2012, the "old" regime has been restored. Therefore, it remains possible for employees with such professions, aged 58 years or older and a career of at least 35 years to benefit from the unemployment with company allowance regime, as was previously the case.

In addition, the Royal Decree of 20 September 2012 fixes the right of access to unemployment with company allowance as of 60 years or within the scope of a long career, enabling an employee who meets the age and career conditions to keep his/her right to unemployment with company allowance. In the event the age and career conditions have meanwhile become stricter, he/she will still be able to benefit from the unemployment with company allowance regime under the previously applicable, more favourable age and career conditions.

An employee who wishes to benefit from his/her acquired rights can ask the Director of the unemployment office to determine whether he/she meets the age and career conditions.

Action points

  • Examine the age and career conditions for unemployment with company allowance, even if there is no longer a collective bargaining agreement applicable at the end of the employment contract of the employee.
  • When dismissing employees with professions involving heavy work, keep in mind the fact that unemployment with company allowance remains possible.

Liability of Directors of Belgian Companies to the Social Security in a European Context

The fourth subparagraph of Article 3(1) of Royal Decree No 38, such as interpreted by the Constitutional Court, provides that any person designated as director of a company liable to Belgian tax, which does not manage the company from Belgium, is irrebutably presumed to pursue in Belgium a professional activity.

Questioned by the Labour Court of Brussels, the European Court of Justice decided on 27 September that, for the company director who manages a Belgian company from another Member State, the non-rebuttable nature of the presumption that they pursue their activity in Belgium is contrary to European Law.

Indeed, the Court considers that the "location of exercise" of the professional activity must receive a uniform definition and be understood as referring to "the place where, in practical terms, the person concerned carries out the actions connected with that activity".

Therefore, persons designated as directors of a Belgian company can now prove that they pursue their activity from another Member State, and be exempt from liability under the Belgian social security regime for self-employed persons because of such activity.

In addition, this decision might have an impact on the qualification of the director's activity, and even on the determination of the State of liability, since it is for the State within which the activity is in practical terms pursued to determine whether it constitutes an employed or self-employed activity.

Action point

Determine the State within which the company director's activity is in practical terms pursued, as well as the qualification given by such State's legislation to the activity of the director (employed or self-employed activity), and its eventual impact on the determination of the State of liability.

Constitutional Court Retains the Current Level of Protection Offered to Employee Representatives

The Belgian Constitutional Court considers that the protection against dismissal afforded to (candidate) employee representatives in the Works Council and/or the Committee for Prevention and Protection at Work does not violate the principle of equality.

The Labour Tribunal of Huy had asked the Constitution Court whether the restriction of grounds for dismissal (principally serious cause and economic or technical reasons) and the draconian compensation for dismissal (up to eight years of salary) did not violate the principle of equality compared to those of other protected workers such as union representatives or prevention advisors.

In its judgement of 10 October 2012, the Constitutional Court ruled that the specific protection regime laid down in the Act of 19 March 1991 is justifiable.

The Constitutional Court ruled that this regime rests upon a legitimate distinction with respect to a union representative, since the regime for union representatives is not set down by law but by a collective bargaining agreement closed at national level no. 5 and since union representatives are appointed in a fundamentally different way than are (candidate) employee representatives.

With regard to a prevention advisor, the Constitutional Court ruled that, unlike an employee representative, such individual is not elected by all the employees and does not represent the entire staff taking into account his/her independence.

Action point

Ensure that no decision to dismiss a protected employee can be considered without full regard being systematically paid to the requisite legal/sectorial protection enjoyed by such individual.

Fight Against the Gender Wage Gap: Measures to Be Taken Within the Company

The Act of 22 April 2012 aimed at fighting against the gender wage gap, published in the Belgian Official Gazette on 28 August, introduces several new requirements with practical implications for companies.

In all companies that must file annual accounts, wage data contained in the annual social report will from now on have to be broken down by workers' gender.

Moreover, in all companies normally employing more than 50 workers, an analysis to determine if the company has a neutral remuneration policy with respect to gender will have to be undertaken every two years. An analysis report, including the wage data broken down by gender, should be provided to the members of the Works Council (WC) or Committee for Prevention and Protection at Work (CPPW) with the annual information. On this basis, the WC (or CPPW) will assess the need to establish an action plan.

Finally, within the same companies, the employer may appoint, on the proposal of the WC (or CPPW), a mediator charged with (i) assisting in the implementation of those new measures and in the drafting of the action plan, if any, and/or (ii) hearing those workers who claim to be victims of unequal treatment in order to find an informal solution with management. A Royal Decree will specify the powers of and skills required from the mediator, as well as its ethical rules.

Action points

  • Break down wage data by gender in the next annual social report.
  • Within companies with more than 50 workers, establish an analysis report concerning the structure of worker's remuneration every two years.

Highly-Skilled Employees Now Eligible for the European Blue Card in Belgium

By Sophie Maes of Claeys & Engels (the Belgium member of Ius Laboris)

BelgiumValiseII.jpgOn Monday, 10 September 2012, Belgium began issuing the "European Blue Cards" which allow certain highly-skilled non-EEA employees to work and reside in Belgium.

This new "unique" residence permit transposes the European Blue Card Directive into Belgian legislation and exempts certain highly-skilled, non-EEA employees from obtaining a Belgian work permit. However, during the first two years of employment, the Belgian employer will still need to obtain a provisional work permit from the competent regional government. Thereafter, the European Blue Card will be delivered if all residency conditions are fulfilled. The Card will initially be issued for an initial term of 13 months, but can be renewed.

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