EU Data Protection Reforms Unveiled
By Ellen Temperton of Lewis Silkin (the UK member of Ius Laboris)
The European Commission has published proposals for a comprehensive reform of the 1995 EU Data Protection Directive.
The main aim is to remove inconsistencies created by the 27 EU member states having implemented the Directive in divergent ways and the consequent burdens for business. The proposals also attempt to reflect the rapid advances in technology since the Directive first came into effect.
The changes include a mandatory obligation to report data security breaches promptly and, where feasible, within 24 hours. At present, very few member states have compulsory rules requiring infringements to be notified. In addition, substantial powers to levy fines are proposed - between 0.5 and 2% of an organisation's global annual turnover.
Continue Reading...Harassing One's Superior Is a Felony
By Jean-Benoît Cottin
According to article L. 1152-1 of the French Labour Code, "Employees shall not be subjected to repeated actions constituting moral harassment, which intentionally or unintentionally result in the deterioration of their working conditions and are likely to violate their rights and dignity, impair their physical or mental health, or jeopardize their professional future". Article 222-33-2 of the French Labour Code sanctions, under similar circumstances, moral harassment, by a penalty of one year's imprisonment and a EUR 15.000 fine. The provisions concerned do not provide any details as to the perpetrator involved.
The Criminal Chamber of the French Supreme Court recently ruled (Cass. crim., December 6, 2011, n°10-82266) that the perpetrator may be convicted even if the individual concerned is actually the subordinate of the victim (so-called "ascending harassment"). In this case, the employee of a social service had been harassing his superior, denigrating his work and repeatedly disseminating contemptuous information about the victim, portraying him as being professionally incompetent. This went on for several years and, as a result, the victim committed suicide.
New Directive Requires Single Work and Residence Permit for Non-EU Workers
By Sophie Maes of Claeys & Engels (the Belgium member of Ius Laboris)
An important new European Directive designed to facilitate migration of non-EU citizens was approved in December and has been officially published.
The legislation imposes significant obligations on EU member states in two respects:
- a single procedure for non-EU migrants to apply for a combined work and residence permit; and
- equal rights for third-country nationals working legally within the EU.
The Directive applies to all member states apart from Denmark, the United Kingdom and Ireland (which are specifically excluded).
Continue Reading...Italian Labour Reform: What Will the New Year Bring?
By Valeria Morosini of Toffoletto De Luca Tamajo e Soci (the Italy member of Ius Laboris)
On the 27th December 2011, a new law that will greatly reform certain aspects of Italian labour law was published in the Italian official gazette. The law will enter into force at the beginning of the new year and will bring major changes to company tax deductions and pensions.
Starting in January 2012, companies will receive tax deductions as a reward for employing workers under the age of 35 and female employees; these two groups make up the largest percentage of unemployed persons in Italy. However, the biggest change will come in the area of pension reform.
Continue Reading...The Use of Geolocation Is Restricted
An employer who wishes to use a geolocation device must make a declaration to the CNIL (Commission nationale de l'informatique et des libertés), which is responsible for ensuring that information technology remains at the service of citizens and does not jeopardize human identity or breach human rights, privacy or individual or public liberties. The CNIL will also verify that the principles relating to the protection of personal data are respected.
The declaration may be made online. Only after the employer receives confirmation from CNIL that the declaration was received may the employer implement a system with geolocation devices.
A decision of the Supreme Court of 3 November 2011 points out that a system monitoring employee activity such as geolocation can not legally (CA Versailles, 17th ch., 17 September 2010, No. 09/02316, Messaoudi C / SA Sogeres) be used by the employer for any other purposes than those declared to the CNIL, and must be brought to the attention of the employees.
Moreover, geolocation limits the personal freedom of employees and this must be justified, in accordance with Article L. 1121-1 of the French Labour Code. According to the Supreme Court there is no such justification for controlling the hours of work of an employee who is free to organize his work. Furthermore, the employee in the case in question had not been informed that the device would be used for such purpose. The court ruled that this illegal use is sufficient to justify a notification by the employee of a breach of the employment contract by the employer (assimilated to unfair dismissal).
Supreme Court Ruling Limits Recovery of Breach of Contract Damages
By Hazel Oliver
The UK's Supreme Court has handed down a major judgment (PDF) on damages for breach of an employment contract in the joined cases of Edwards v Chesterfield Royal Hospitals NHS Trust and Botham v Ministry of Defence. Both cases concerned whether a dismissed employee can claim damages arising from breach of a contractual disciplinary procedure.
Background
In the case of Johnson v Unisys Ltd [2001] IRLR 279, the House of Lords (predecessor of the Supreme Court) had ruled that an employee cannot recover compensation for the "manner of dismissal" by means of a breach of contract claim, but must instead bring an unfair dismissal claim in the Employment Tribunal where the statutory limit on compensation would apply. (This is the so-called "Johnson exclusion".) Subsequently, in Eastwood v Magnox Electric plc [2004] IRLR 733, the House of Lords clarified that a claim for an employer's breach of the implied duty of trust and confidence during a disciplinary process could be made where this breach was both prior to and independent of any later dismissal.
Continue Reading...Consultation on Fees in Employment Tribunals
By Hazel Oliver
The UK's Ministry of Justice has issued a public consultation document on the Government's proposals for introducing fees in the Employment Tribunals and the Employment Appeal Tribunal (EAT). This is not a consultation on whether or not to introduce fees, as that has already been decided. Rather, the consultation is about the proposed structure and arrangements for charging fees. There are two alternative proposals for fee structures, Option 1 and Option 2, which are outlined below.
An Employer is Liable for Acts of Harassment Committed by Those Who Exercise De Facto or De Jure Authority Over Employees
The provisions of article L. 1152-1 of the French Labour Code defining and prohibiting bullying do not provide any details as to the perpetrator involved.
In a recent case it was decided that the employer has towards its employees a "safety obligation" and must, therefore, protect their health and safety in the workplace, particularly with regard to bullying. This obligation applies to the employer himself and to all employees. It also applies with respect to the actions of persons who exercise de facto or de jure authority over the employees. The fact that the employer himself commits no personal fault does not exempt him from liability. In this case, a fast food manager was the victim of bullying by a manager of a third company that the employer had a license agreement with (Cass soc. March 1, 2011, n ° 09-69616).
A decision of 19 October 2011 (Cass. soc., October 19, 2011, n°09-68272) rules likewise for a cleaning person hired by the property management company of a building who was bullied by the director of the homeowners' association. An earlier case ruled likewise and considered the employer as being liable for his wife's behaviour towards the employee who she harassed (Cass. soc., May 10 2001, n°99-40059).
Major Employment Law Shake-up Unveiled
The UK Government has announced wide-ranging plans for what it claims to be "the most radical reform to the employment law system for decades". The proposals were set out by the Secretary of State for Business, Dr Vince Cable, in a speech to the EEF manufacturers' organization. Some of the measures had been previously floated but others were novel, including:
- amending the UK's whistleblowing legislation so that complaints by employees about a breach of their own employment contract will no longer constitute a protected disclosure;
- seeking views on introducing compensated no-fault dismissals for "micro employers" with fewer than ten employees;
- simplifying and "slimming down" the processes required to carry out a fair dismissal, including potentially working with the conciliation service Acas to change their Code of Practice on Disciplinary and Grievance Procedures;
- consolidating the myriad regulations relating to the national minimum wage; and
- streamlining the current regulatory regime for the recruitment sector.
Compulsory Dividend Bonus
The law passed on July 28th, 2011 requires all French companies and groups of companies whose holding company is in France, to pay a bonus to employees if they distribute a dividend to their shareholders, which is higher than the average of the dividends of the two previous years. The amount of the bonus is to be negotiated with the unions. If these negotiations are not successful, the employer can unilaterally decide the amount. For 2011, companies had until October 31st, 2011 to come into compliance. The bonus is exempt from social security contributions up to 1200 euros. According to preliminary surveys, the amount proposed by companies is mostly between 150 and 500 euros.