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.

Another important change would be a requirement for employers to obtain individuals' explicit consent for their personal data to be processed, rather than being able to rely on assumed or implied consent.

Outside the sphere of employment, there would be increased protection for online privacy rights, purported easier access to personal data and rules about data portability between service providers.

These proposals will need to be approved by the EU member states and ratified by the European Parliament before they can come into effect. This process may take two years, possibly more, and the proposals could be watered down or rejected during that time. If the proposed amendments do make it through those hoops, there will be a further period of time for member states to implement them into their national legal systems. So there's no need for employers to panic or amend their policies just yet.

For further details of the European Commission's proposals, click here.

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.

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).

The obligation on member states to have a single work/residence permit procedure will have major ramifications for countries that currently require non-EU workers to obtain two separate documents (e.g., Belgium). Decisions will need to be taken within four months of the application date and the permit must be delivered according to a uniform European model.

Yet the Directive's impact should not be overstated. Member states will retain the power to determine the conditions and the number of permits granted. Moreover, some important categories of legal migrants are excluded from the Directive's scope - including intra-corporate transferees, posted workers, long-term residents, refugees and seasonal workers.

Since some EU member states already apply a combined application procedure, the extent of the Directive's implications will vary from country to country.

Right to equal treatment

Third-country nationals who obtain a single permit will in future benefit from a common set of rights that are granted to EU employees. These include working conditions (e.g., salary, dismissal, safety and wellbeing at work), tax benefits, social security and public housing.

Member states will, however, have opportunities to restrict the application of equal treatment. They could, for example, decide to restrict access to public housing or make access to higher education dependent on language proficiency and/or payment of tuition fees.

Member states have until 25 December 2013 to transpose the Directive's requirements into their legal systems. Employers, migrants and advisers would be well advised to watch out for changes to national immigration laws and procedures during the two-year implementation period.

Directive 2011/98/EU of 13 December 2011, Official Journal of the European Union 23.12.2011 - available here (PDF).

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.

• Starting from January 2012, all pensions will be calculated on contributions, and not the current earnings-based system;
• Retirement age in 2012 will rise to 62 or 63.5 years, dependent on employment status, and will progressively rise to 66 in 2018.

The new Government led by president Mario Monti, presented this law with the purpose of safeguarding the Italian market. Considering the state of financial affairs across the European Union, it could be likely that other Member States will follow the trend.

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).

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.

Mr Edwards was dismissed from his role as a consultant orthopaedic surgeon on grounds of gross personal and professional misconduct. He made a High Court claim for breach of his employment contract based on loss of reputation, alleging that his employer had failed to comply with a contractual disciplinary procedure. This included an allegation that the disciplinary panel had not been properly constituted and he would not have been dismissed if the panel had correctly included a clinician of the same discipline. Somewhat controversially, on appeal, the Court of Appeal had held that it was possible to bring a claim for breach of an express contractual procedure in these circumstances.

Mr Botham was also dismissed for gross misconduct, from his role as a youth community worker. He similarly brought a High Court claim for damages for breach of express terms of his employment contract, in this case failure to follow the provisions of a contractual Disciplinary Code. This had caused him a loss of reputation and inability to work in his chosen field. His claim was dismissed by the High Court on the basis that the "Johnson exclusion" applied, but his appeal was then allowed by consent in the Court of Appeal, following the decision in Edwards.

The Supreme Court's Ruling

By a narrow majority decision, the Supreme Court allowed the employers' appeals in both cases and held that employees cannot claim damages for loss resulting from breach of an express term in their employment contract where this relates to the manner of dismissal. In accordance with Eastwood v Magnox, contractual damages can only be claimed where the loss founding the cause of action both "precedes and is independent of" the dismissal process.

Lord Dyson gave the leading judgment, with which Lords Mance and Walker agreed. They held that these cases fell within the "Johnson exclusion" and so were prohibited by the principle that an employee is not entitled to claim contractual damages for the manner of a dismissal. This was the case even though the claims were based on breach of an express contractual term, rather than breach of trust and confidence. Parliament had specified a statutory scheme of unfair dismissal placing deliberate limitations on the right to make a claim, including time limits for bringing claims, qualifying service requirements, and a cap on compensation. Parliament had also linked failure to comply with disciplinary procedures with the outcome of unfair dismissal claims. This meant that even express terms about disciplinary procedures were not ordinary contractual terms, but were intended to operate to protect employees from unfair dismissal.

In Mr Edwards' case, his dismissal flowed from the disciplinary panel's findings, which in turn flowed from its improper constitution. The claim did not arise from anything said or done before the dismissal. Similarly, Mr Botham's loss of reputation was caused by the dismissal itself. Therefore, in both cases the procedural breaches formed part of the dismissal process, and so fell within the Johnson exclusion.

The Other Opinions

Lord Phillips also allowed both appeals, but for a different reason. He considered that both claims were prevented because they were effectively claims for "stigma" damages. These could not be awarded in respect of wrongful dismissal (following Addis v Gramaphone Co Ltd [1909] AC 488) and similarly should not be allowed for failure to follow a disciplinary procedure.

Lords Kerr and Wilson both distinguished between the two cases. They agreed with allowing the appeal in Botham, on the basis that this claim arose solely from the fact of dismissal. However, they would not have allowed the appeal in Edwards, finding that he had established a cause of action before dismissal. The adverse findings against him by the improperly constituted panel had caused the dismissal. However, independently of the dismissal, these findings also damaged his reputation. Therefore, he had a cause of action for damage to reputation before the dismissal occurred, which fell outside the Johnson exclusion.

Lady Hale dissented altogether, finding that unfair dismissal law did not mean that Parliament intended to limit employees' contractual rights, and the Johnson exclusion only applied to cases involving breach of the implied term of trust and confidence.

Practical Implications

Although the seven Supreme Court judges gave a variety of opinions, it is clear that the basis of the Court of Appeal's decision in Edwards has been overturned. The "Johnson exclusion", which prevents contractual claims for the manner of dismissal, applies irrespective of whether the claim is based on breach of an implied term or an express contractual term.

The majority decisions will come as a relief to employers, because they seem to close off the possibility of an employee making a High Court claim for career-long loss arising from breach of a contractual disciplinary procedure - at least where the procedure has led to the dismissal.

However, the remaining grey area concerns the circumstances in which an individual claim falls within the Johnson exclusion, or can be shown to be independent of the dismissal. This is a question of fact, and will depend on whether the procedural breach forms part of the dismissal process. Examples of matters potentially independent of the dismissal are claims for loss caused by a suspension, or psychiatric injury caused by pre-dismissal treatment.

In his majority judgment, Lord Dyson recognised that this can lead to "unsatisfactory and anomalous" results - including the fact that an employer may be better off dismissing an employee than suspending him. The room for disagreement on the facts of a particular situation is also shown by the dissenting judgments of Lords Kerr and Wilson in the Edwards case, where they appear to apply the same test as the majority but come to a different conclusion.

Future claims by employees are likely to focus on the effect on their reputation or health of contractual breaches early on in a disciplinary process, in an attempt to show that this damage is independent of any later dismissal. For employers with a contractual disciplinary process, it will be advisable to move through the process as quickly as possible and make a clear link between any disciplinary findings and the decision to dismiss.

Lord Dyson's judgment also expressly notes that it is still open to an employee to seek an injunction and/or declaration if an employer starts a disciplinary process in breach of express contractual terms. This is despite the fact that contractual damages might not be available for any resulting dismissal. This decision may well result in such applications becoming more common, particularly for employees where damage to professional reputation caused by a flawed disciplinary process may have a significant impact on future employment prospects.

Photo credit: RTimages

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.

The key features of the first option are as follows:

• Fees would initially be set to recover a proportion of the cost of providing the service.
• The fee payable would vary depending on the nature of the claim made, the stage reached in the proceedings, and (for multiple claims) the number of people in the claim.
• Fees would be payable in respect of two stages: (1) the issue of the claim; (2) before the hearing. However, both the issue fee and hearing fee would be payable by the claimant when the claim is made.
• The fee level payable would depend upon the claim type, allocated into three levels: Level 1 (sums due on termination); Level 2 (unfair dismissal); and Level 3 (discrimination/equal pay/whistleblowing).

The fees for issuing a claim would be: Level 1 £150; Level 2 £200; and Level 3 £250. The fees for proceeding to a hearing would be: Level 1 £250; Level 2 £1,000; and Level 3 £1,250.

Option 2

The key features of the second option are as follows:

• Fees would only be charged at the issue of claim stage.
• The level of fees would vary depending on the nature of the claim made and the value of the claim, and (for multiples) the number of people in the claim.
• If the claimant seeks an award over £30,000, a higher fee would be payable (Level 4), irrespective of the nature of the claim.
• Where a claimant seeks an award less of than £30,000, the Tribunal would be prohibited from making an award above that threshold if the claim was successful.
• The fee for Level 4 claims would be initially set to recover the full cost of providing the service, with other fees set below full cost recovery.

The fees would be: Level 1 £200; Level 2 £500; Level 3 £600; and Level 4 (£30,000 or over) £1,750.

Under both Option 1 and Option 2, a remission system would apply for those who need to access an Employment Tribunal but cannot afford to pay the fee. Full remission could be sought based on receipt of specific benefits or gross threshold income, or partial remission based on monthly disposable income.

Also under both options, the Tribunal would have the power to order that the unsuccessful party reimburse the fees paid by the successful party.

The consultation document also proposes fees for making various types of application to a Tribunal, payable by the party making the application. For example, an application to review a Tribunal decision would cost £100 (Level 1) or £350 (other levels).

Fees in the EAT

The document proposes a fee of £400 for issuing an appeal to the EAT and a further fee of £1,200 for proceeding to hearing.

The consultation will be open until 6 March 2012. The timing of the introduction of fees will depend on which option is chosen. For Option 1, implementation is proposed in the 2013/14 financial year. For Option 2, because of the requirement for legislation preventing a Tribunal awarding a sum in excess of £30,000 where the appropriate fee has not been paid, full implementation is proposed by the 2014/15 financial year.

Photo cerdit: Ericsphotography

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).

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.

In addition, some significant changes in relation to Employment Tribunals were rather hidden away in the notes to the Department for Business, Innovation and Skills press release, including judges sitting alone without wing members to hear unfair dismissal cases from April 2012.

The Government has also published its formal response to the Resolving Workplace Disputes consultation that took place earlier this year. Amongst other things, the response reveals that the Government is committed to:

• increasing the qualifying period for unfair dismissal to two years from April 2012 (as previously announced);
• publishing a consultation on options for the introduction of Employment Tribunal fees;
• introducing compulsory conciliation of all employment disputes by Acas before an Employment Tribunal claim can be brought;
• consulting on "protected conversations", which would allow employers to have discussions with staff about retirement or poor performance that could not subsequently be relied on in tribunal proceedings;
• giving Employment Tribunal judges the power to levy a financial penalty on employers found to have breached employment rights;
• consulting on simplifying compromise agreements - to be renamed "settlement agreements";
• developing a "rapid resolution" scheme to offer a quicker and cheaper alternative to Employment Tribunals for simple cases; and
• commissioning a fundamental, independent review of the Employment Tribunal Rules of Procedure (PDF), to address concerns that tribunals have become complex, inefficient, and are no longer fit for purpose.

Dr Cable claimed that the various measures taken as a whole would "retain key protections for employees, but also fundamentally improve the way employers take people on, manage disputes and let people go". Whilst he emphasized that the package was "emphatically not an attempt to give businesses an easy ride at the expense of their staff", the response from British trade unions has been predictably scathing.

Photo credit: Janusz B

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.

Because the law contains no express exception, and courts have not weigned in on the issue, there is a diversity of opinions whether the above described general principle on monitoring employees' private e-mails must apply to monitoring of e-mails kept on the computer of the company. Most common opinions are the following:

• There is an opinion that the general principle must apply to these situations and monitoring employees' private e-mails even if they are sent from the corporate e-mail address may be considered as an infringement of Russian law;
• Another opinion is that the employer can monitor the contents of its computers provided that the employer: (i) properly informed employees that its computers can be used only for business purposes and that use of corporate e-mail for private purposes is prohibited; (ii) properly informed employees that the employer monitors or can monitor employees' e-mails, including private e-mails. "Properly inform" in this context would mean that this information is included either in the employment contract or in the internal rules, and that the employees familiarized themselves with the information, providing written acknowledgment of their receipt and understanding thereof.

In practice, employers in Russia often apply the following legal instruments to be able to have unrestricted access to a corporate mailbox:

• Obtain employees' written consent to the e-mail monitoring that covers consent for review of personal correspondence of the employee which is on his/her computer;
• Prohibit use of corporate e-mail for private purposes as described above; and
• Inform employees about monitoring.

Nevertheless, the safest approach still remains to avoid reviewing employees' private correspondence.

Summarizing the above, we can conclude that there is no universal approach that should be followed. Each company-employer should create and adhere to its own approach that will help to balance employees' right to privacy against the rights and legitimate interests of the employers.

On April 11th, the law prohibiting the wearing of any face covering in public spaces entered into force. Though not a special rule for Islamic veils, it obviously applies to such. This prohibition does not apply to workplaces since companies should be regarded as private places, except when freely open to the public (e.g. shops). However, French labour law does not oblige employers to take steps to accommodate an employee's religious beliefs. On the contrary, an employer may restrict the exercising of religious freedom at work on two grounds:

• abuse of freedom of expression / thought, notably through insults, defamation, proselytism;
• objective, relevant and justified criteria revolving around health and safety issues or around contacts with clients in some circumstances.

There is a consensus that the workplace should be regarded as a "neutral" place. Only 2% of discrimination claims (and not only work-related issues) to the former French Equal Opportunities and Anti-Discrimination Commission (Halde) were based on religion.

Therefore, case law on that matter is pretty limited (there is, for example, no Supreme Court ruling), but most cases have been resolved in favour of the employer. As a recent example, a veiled woman working in a crèche (nursery) who had been dismissed for gross misconduct when she refused to work without wearing her veil, saw her employer's decision upheld by the judge (Court of Appeal of Versailles, October 27th , 2011, # 10/05642).

In this case, a number of deliverymen of a Spanish company sought to secure recognition of their social security protection. Therefore, they set up a trade union. They also brought several sets of proceedings against the company. In one of these proceedings, two independent deliverymen testified in favour of the company. The trade union reacted to this with a publication in its newsletter of a cartoon of a sexual nature featuring the two witnesses and the HR manager (the newsletter being distributed among the workers and posted in the company). Inside the newsletter, articles criticized the fact that those independent deliverymen had testified in favour of the company. Moreover, the language used was offensive. As a consequence, the company decided to dismiss for serious cause the trade union representatives who had distributed the newsletter.

The ECHR took the view that the right to freedom of expression indeed exists but that it is necessary to make a distinction between criticism and insults. In the case at hand the national court adequately determined the offensive character of the expressions. The national court also took the view that the dismissals were not disproportionate in view of the circumstances of the case. Moreover, in a professional environment, certain actions, such as the indecent assault of individuals, may have such a disruptive effect that serious sanctions are justified. As a consequence, the ECHR took the view that that there is no disproportion between the breach of the union activists' right to freedom of expression and the dismissal.

Spouses and "registered partners" of such non-EEA employees, as well as their children can obtain a residence permit by following a family reunification procedure, which could up until now take up to nine months.

The three main changes that have been made are:

• the foreign employee (non-EEA national) must have an income (which may not originate from public social security assistance) that is at least 120% of the Belgian minimum living standard income. This percentage was introduced to avoid abuses;
• this employee must have adequate housingthat meets basic safety- health- and living quality conditions;
• the notion "durable and stable relationship" (referring to "registered partners") is now expressly legally defined. Such relation is only proven if (i) the partners can prove that for at least one year they have lived legally together in Belgium or elsewhere, (ii) if they prove that they have known each other and have had regular contact for at least two years (instead of one year under the old legislation), or, (iii) if they have a common child.

With regard to the duration of the procedure, the decision on the residence permit must be taken within six months after filing the request.

The UK Government has confirmed that it will be increasing the qualifying period for claiming unfair dismissal from one to two years and introducing fees for bringing employment tribunal claims.

These were two of the most significant proposals contained in a consultation document on reforming employment tribunals and the resolution of workplace disputes, published by the Department for Business, Innovation & Skills (BIS) last January. At the Conservative Party conference on 3 October 2011, the Chancellor of the Exchequer, George Osborne, announced that both reforms are to be implemented. This pre-empted the Government's formal response to the consultation, which is expected shortly.

A BIS press release published on the same day revealed that the change to the unfair dismissal qualifying period will take effect on 6 April 2012, but gave no information as to what the transitional arrangements for existing employees would be.

The stated purpose of the reform is to encourage employers to take on new employees, with the Government estimating that the number of unfair dismissal claims will drop by around 2,000 a year. But the change is hugely controversial, with predictions that it will merely have the effect of encouraging more discrimination and whistleblowing claims, which apply from "day one" - i.e. there is no qualifying period.

Trade unions are naturally vehemently opposed to the change but even some employer organisations are questioning the merits, including the Chartered Institute of Personnel and Development.

Fees for Employment Tribunal Claims

The Chancellor's speech on 3 October also included a commitment "to introduce for the first time ever a fee for taking a case to a tribunal that litigants only get back if they win". As yet, there are no official details of how this will work and it seems that a consultation on fees will be launched later in the autumn. According to the BBC, the projected implementation date is April 2013.

There is serious opposition to this proposal too, primarily on the basis that fees are likely to have the unfortunate effect of deterring genuine claims as well as spurious and weak ones. It has also been suggested that it will merely ratchet up the cost of settling cases, with claimants expecting to recoup any fee from their employer.

There have been unconfirmed media reports that the fee for issuing a tribunal claim will be £250, with a further fee of £1,000 payable by the claimant when the hearing is listed (and even higher fees if the claim exceeds £30,000). No source is given for these figures and the Government's forthcoming consultation will reveal whether or not they are genuine.

It does at least seem clear that any fee will be recoverable by the claimant if successful, but will that mean that the tribunal will make a refund or order the employer to pay it? If the latter, this would chime with another proposal in the January 2011 BIS consultation paper - imposing financial penalties on employers found to have breached their legal obligations.

Photo cerdit: Ericsphotography

How old should airline pilots be before they're made to retire?  That was the central question in a case brought by German pilots against the airline Lufthansa which has just been considered by the European Court of Justice (ECJ).

A collective agreement to which Lufthansa had signed up included a blanket prohibition on pilots working after they had reached the age of 60.  Three pilots, whose employment contracts automatically terminated on their 60th birthday, didn't feel ready to hang up their captain's hats.  They claimed the rule amounted to unlawful age discrimination.

In light of that, the ECJ concluded that a complete ban on pilots working beyond the age of 60 was a disproportionate requirement.  It went beyond what was really needed to ensure air traffic safety and protect public health and security.

The ECJ did accept that possessing particular physical capabilities is a genuine requirement for acting as a pilot and such capabilities diminish with age.  But the judgment makes clear that any difference in treatment on grounds of age must be justified as being necessary and proportionate.

Flying Lessons

This case has obvious implications for the aviation sector.  But more generally, it highlights the developing obligation under age discrimination laws for organisations to justify compulsory retirement ages.  They need be in a position to provide cogent, objective reasons for adopting particular ages for particular jobs.  Conducting a comprehensive audit of retirement policies and procedures is strongly advisable.

Employers who try to wing it could be heading for a crash landing... in court.

Prigge and others v Deutsche Lufthansa AG (C-447/09), 13 September 2011 - judgment available here

For a practical discussion of the main compliance issues from an employment perspective and guidance as to where U.S. organizations, used to complying with the Foreign Corrupt Practices Act and the patchwork of U.S. anti-bribery laws, should focus their attention, continue reading U.K. Bribery Act "On-Line" as of July 1 - U.S. Employer Impact, by Philip Berkowitz and David Goldman of Littler Mendelson and Ellen Temperton of Lewis Silkin.

Photo credit: MBPhoto, Inc.