Header graphic for print

International Labor and Employment Law

EU Advocate General Holds that Certain Forms of Indirect Religious Discrimination Could be Justified

flag for European Unionflag for United StatesPosted in Belgium, Discrimination, European Union, Terminations, United States

On May 31, 2016, the Advocate General (“AG”) of the European Court of Justice issued its opinion in a case relating to a Muslim employee wearing a headscarf at work. In the case, Samira Achbita v. G4S Secure Solutions NV, Case C-157/15, the AG stated that a neutral policy prohibiting employees from wearing visible religious symbols was not direct discrimination under Article 2(2)(a) of Directive 2000/78 EC, the EU Directive that addresses discrimination in the workplace. Furthermore, the AG indicated that such a policy may not constitute indirect discrimination either, and therefore not be illegal, provided it is based on a legitimate and proportional policy requiring religious or ideological neutrality in the workplace. This decision, while not binding, stands in stark contrast to the law on the subject in the United States, where just in 2015 the Supreme Court held that failing to hire an applicant because she wore a headscarf constituted discrimination.

In Achbita v. G4S, the plaintiff, Samira Achbita, was an employee of a global security firm. Achbita is Muslim, and for over three years followed a company policy that banned wearing any visible religious, political or philosophical symbols. In April 2006, she announced to the company that she intended to wear a headscarf during working hours for religious reasons. In June 2006 her employment was terminated for violating company policy. She sued the company in a Belgian labor court for wrongful dismissal on the grounds of direct religious discrimination. After winding its way through the courts, in 2015 the Belgium Court of Cassation (the court of last resort) certified a question to the European Court of Justice to determine whether prohibiting a Muslim employee from wearing a headscarf in the workplace constitutes direct discrimination under EU Directive 2000/78 EC.

The AG held that the policy was not direct religious discrimination because it was not based on stereotypes or prejudices against one religion in particular as compared to other religions. The AG did rule, however, that a policy banning religious garb could constitute indirect religious discrimination if it was not justified by a legitimate aim. Quoting the EU Directive, the AG held that a genuine and determining occupational requirement is a legitimate aim, but that a rule enforcing that requirement must be proportionate. The AG first ruled that a public neutrality rule was a legitimate aim, since it was “essential” to avoid the impression that customers may associate the Company with the religious beliefs expressed by an employee’s dress. The ruling also noted the rule could qualify as an “occupational requirement” in order to maintain “brand image.”

Turning to whether the ban was a proportionate means of achieving the legitimate aim, the AG made two key rulings. First, the AG held that a total ban on religious garb was necessary to achieve a policy of neutrality. Second, the AG determined that the rule would not create an undue prejudice to religious employees, since, “While an employee cannot ‘leave’ his sex, skin colour, ethnicity, sexual orientation, age or disability ‘at the door’ upon entering his employer’s premises, he may be expected to moderate the exercise of his religion in the workplace, be this in relation to religious practices, religiously motivated behaviour or (as in the present case) his clothing.” Therefore, the AG ruled that an employee may be required to have a “measure of restraint” in his or her religious expression at work, and the level of restraint required depends on the circumstances of the case. In particular, the AG indicated that courts should assess the following factors when determining how to strike a “fair balance between the conflicting interest[s]:”

  • The size and conspicuousness of the religious symbol;
  • The nature of the employee’s activity;
  • The context in which the employee must perform his or her activities;
  • The nationality of the company.

Finally, the AG also ruled that employees wearing visible signs of their religious beliefs may be “prejudicial to the rights and freedoms of others” by having an impact on coworkers and customers, and it may affect the Company’s business.

As noted above, this ruling is not binding, and it remains to be seen whether its reasoning is followed by the Court of Justice of the European Union (“CJEU”) and becomes binding precedent for the EU. (A case dealing with the same question, Bougnaoui v. Micropole Univers, C-188/15, currently is pending before the CJEU.) Still, the decision stands in stark contrast to the law in the United States, and multinational employers should be aware of the greater protections afforded religious garb in the United States.

In the United States, under Title VII of the Civil Rights Act of 1964, an employer must accommodate an employee’s religious garb even if it violates a workplace policy, unless the accommodation would be an undue hardship on the company. A major case on the topic, EEOC v. Abercrombie & Fitch Stores, was decided last year. The case turned on whether the failure to hire a Muslim applicant because she wore a headscarf that would have violated a workplace policy constituted religious discrimination under Title VII. (For a full review of the decision, please see here). The Supreme Court, in an 8-1 decision, held that to make out a religious discrimination claim, the plaintiff, “need only show that his need for [a religious] accommodation was a motivating factor in [an] employer’s decision,” even if the employer did not have actual knowledge of the applicant or employee’s religion or need for an accommodation. This stands in stark contrast to the reasoning by the AG in Achbita v. G4S, under which Abercrombie’s workplace policy would likely have been a valid reason to not hire an applicant who would need a religious accommodation.

Employers operating in both the United States and the European Union should be aware of the different standards applied to religious garb and expression in the workplace. We will continue to monitor whether the AG’s opinion is adopted on a wider scale in the European Union, but if this decision stands, it will herald a widening gulf between the conception of religious discrimination, and protections for religious expression in the workplace, between the United States and Europe.

Brexit & The Consequences for UK Employment Law

flag for European Unionflag for United KingdomPosted in European Union, United Kingdom

On 23 June 2016 the people of Britain voted in favour of leaving the European Union – the so-called “Brexit.” The result has created uncertainty and speculation as to the implications of Brexit and what happens next.

Employment law has often been cited as an area where European legislation dominates with the implication that departing the EU will radically change UK employment law. Although exiting the EU will have implications for UK employment law, we consider that much that is in place will remain, not just in the short-term but in the medium and long-term too.

In connection with these concerns, we have outlined the potential impact of Brexit on UK employment law in our Client Alert, available here.

UK Tribunal Defines Some Limits on Employee Privacy Protections and Expands Anti-Discrimination Rights

flag for European Unionflag for United KingdomPosted in Discrimination, European Union, Privacy, United Kingdom

Employee’s Privacy Rights

European courts continue to grapple with the limits on employee protections under Article 8 of the European Convention of Human Rights.  Article 8 protects a person’s right to respect for their private and family life, and our blog has actively tracked developments on the subject (to review prior rulings, see here, here, and here). The UK’s Employment Appeal Tribunal (EAT) recently further defined the limits of an employee’s expectations of privacy in the workplace when it held that an employee had no reasonable expectation of privacy in emails and photographs from his personal phone that had been passed to the police.

In the case, Garamukanwa v Solent NHS Trust, UKEAT/0245/15/DA, an employee of a hospital, Mr. Garamukanwa, had been in a relationship with a nurse (a fellow employee) that ended. He believed that she left him for another nurse at the hospital, and sent emails to both individuals. An anonymous individual then reported their relationship to a manager, an anonymous Facebook account was set up under the nurse’s name, and anonymous malicious emails were sent to the hospital’s management regarding the nurse. In light of these anonymous actions, the nurse felt threatened, and she complained to the police. Mr. Garamukanwa was suspended pending an investigation, but the police decided to not take any action. In the course of the investigation, however, the police passed all relevant evidence to the employer, including emails and photographs from Mr. Garamukanwa’s personal iPhone. The hospital subsequently terminated his employment.

On appeal, Mr. Garamukanwa argued that his employer could not use the information gathered by the police from his iPhone as a basis for his termination, because it violated his Article 8 rights. The EAT rejected this argument. Importantly, the EAT ruled that the employer’s termination of Mr. Garamukanwa based on the emails and photographs did not even engage Article 8, let alone violate its provisions. Significantly, the EAT held that because the emails were sent to the work addresses of the recipients, dealt with work-related matters, and affected the work of the nurse and other recipients, Mr. Garamukanwa did not have a reasonable expectation of privacy under Article 8. The EAT found it relevant that the company did not rely on any other personal materials from Mr. Garamukanwa outside of what the police provided to them when deciding to terminate him.

This decision provides clarification for companies investigating misconduct. Importantly, even if the employee is using a private device to harass co-workers, if the actions are not solely personal and are connected with work-related matters and the workplace, the employer may be able to rely upon those communications, even if they contain some personal material, as grounds for termination.

Disability Discrimination Protections

Multi-national employers should also be aware of a recent expansion of disability discrimination protections under the UK’s Equality Act 2010. The act prohibits treating an employee unfavorably because of something arising from the employee’s disability unless the unfavorable treatment is a proportionate means of achieving a legitimate purpose. The case, Risby -v- London Borough of Waltham Forest, UKEAT/0318/15/DM, centered on a training course for employees at a location that did not have wheelchair access. One of the employees, who is paraplegic, was extremely upset about the decision, and shouted, swore and made a racist comment toward a junior colleague. The employee was immediately dismissed. The EAT overturned his dismissal, however, holding that he was terminated because of his disability. The EAT reasoned that while his short temper was a personality trait, the employee would not have been angered by the decision to hold the workshop in a venue without wheelchair access if he had not been paraplegic, and therefore his disability was an “effective cause” of his conduct.

This is a broad reading of the Equality Act of 2010, and expands the types of conduct that are protected as ‘caused’ by a disability. Employers operating in both the US and the UK should be particularly aware that this differs markedly from the protections available to US employees under the Americans with Disabilities Act (ADA). While the ADA protects from discrimination against disabilities, the regulations are clear that, “[t]he definition of an impairment…does not include common personality traits such as poor judgment or a quick temper where these are not symptoms of a mental or psychological disorder.” Nonetheless, employers in the UK should be vigilant when terminating an employee with a disability to ensure that the termination is not based on conduct that may be related to a disability.

New Law Imposes Additional Requirements on NGOs Operating in China

flag for ChinaPosted in China

Until recently, there have been few formal regulations regarding the operation of foreign non-governmental organizations (NGOs) in China. While the Chinese government has expressed skepticism and, at times, hostility toward foreign NGOs, many NGOs – including many prominent U.S. based organizations – currently operate in China. Based on new legislation in China, however, the status of the more than 7,000 foreign NGOs operating in China – in addition to many other organizations wanting to expand into the country – now remains in question.

In late April 2016, the People’s Republic of China passed the Foreign Non-Governmental Organizations Management Law (the “Foreign NGO Law”), which provides considerable restrictions on the operations of NGOs in China. This article highlights a few of the key changes that NGOs should be aware of in light of the Foreign NGO Law, which will take effect on January 1, 2017.

NGOs Required to Register:

Under the Foreign NGO Law, all NGOs currently operating in China – as well as those who wish to operate in China – will be required to register with the government and partner with a Chinese entity. The foreign NGO must register either (1) a representative office if it plans to engage in long-term activities in China, or (2) a temporary event or activity in China. In either case, such registrations will be subject to review and approval by the local police department and Public Security Bureau (PSB).

Previously, foreign NGOs were overseen not by the PSB, but by the Ministry of Civil Affairs. The Ministry is considered by many to be less powerful within the government than the PSB, so this change may indicate that NGO registration is being taken more seriously by the Chinese government.

Eligibility to Register:

Under the new law, foreign NGOs that have a political or religious background are not permitted to register. Entities that have expressed criticism of the Chinese government may also be subjected to heightened scrutiny. Similarly, it is anticipated that NGOs focused on advocacy or preparatory work will be subject to a high level of scrutiny before registration.

The PSB will look to the NGO’s history when determining whether it should be permitted to register. A foreign NGO will be expected to have operated successfully for at least two years in its home country before attempting to register in China.

Requirements After Registration:

After the NGO has been accepted for registration by the PSB, the NGO must apply to another government department to obtain a “supervisor” for the work. The other departments (e.g., Health and Education) typically are controlled by the PSB, and may be reluctant to agree to supervise the work as doing so puts the other department at risk of incurring the wrath of the PSB.

Once registered, the foreign NGOs are not permitted to engage in fundraising or political activity. If the NGO is suspected of activity viewed as harmful to the Chinese government –including “spreading rumors” or obtaining state secrets – it may be shut down and penalized by the government, including by confiscation of properties or income, warnings, and potentially criminal detention of employees.

Penalties for Failing to Register:

An unregistered foreign NGO may not engage in any activity in China directly or indirectly, and may not authorize or fund any Chinese entity or individual to engage in activity on behalf of the unregistered NGO. If an entity violates the law by engaging in activity in China without having registered, the entity and those acting on its behalf may be subjected to penalties including: confiscation of illegal properties or income, warnings, and/or criminal detention up to 10 days.

More Information To Come:

Implementing rules, which may provide more guidance regarding enforcement, may be released by the State Council of the Ministry of Public Security to supplement the Foreign NGO law between now and the effective date of January 1, 2017. We will provide more information on this topic as it becomes available.

German Labor Court Allows Review of Employee’s Browsing History

flag for European Unionflag for GermanyPosted in European Union, Germany, Privacy, Terminations

European courts continue to clarify the right of employers to review their employees’ emails. As we discussed previously, the European Court of Human Rights and the National Labor Relations Board of the U.S. have recognized that employers have the right to monitor their employees’ internet communications in order to ensure productivity during work. (To review the holdings by the ECHR and NLRB, please click here and here, respectively.)

Shortly after the ECHR opinion, the German Regional Labor Court in Berlin-Brandenburg held that an employer was entitled to check an employee’s internet use without consent and that the employee’s excessive personal use of the internet during company time justified immediate termination. In the case, the employee had a work computer that, according to company policy, was only allowed to be used for work-related purposes. The employer was told that the employee often used his computer for non-work activities, such as surfing the internet. The employer first checked and saw that the employee’s volume of data for his internet usage was surprisingly high, and then decided to actively monitor the employee’s internet use for 30 days. Over that month, which would constitute approximately 160 working hours, the employee logged almost 40 hours of private internet usage. The employer immediately terminated the employee for good cause. The employee challenged the termination on the grounds that his browsing history could not be monitored without consent, and that therefore the browsing history should be excluded from trial. The Regional Labor Court ruled for the employer on each claim. The court held that:

  1. The employee’s actions were a valid reason for an immediate good cause termination.
  2. Under the Federal Data Protection Act, the employer was allowed to gather the information from the employee’s computer even without consent, and the browsing history was therefore admissible. The court held that data can be gathered when it relates to the working relationship, and that consent was not necessary because it would not have altered the nature of the review and there was no other way for the employer to monitor this misuse of company time.
  3. Finally, the court ruled that the employer was not a service provider under the more stringent German Telecommunications Act. This is important because it allowed the company to access the data following only the less restrictive provisions of the Data Protection Act.

Notably, the employee has appealed this decision to the national German labor court, which may decide whether employers are service providers under the stricter Telecommunications Act. This would limit the ability of German employers to monitor internet usage.

The decision is consistent with the decision of the ECHR in Barbulescu: that employers are allowed to monitor employee use of work computers to ensure productivity during working-hours. The decision also affirms prior German labor court rulings that have held that extensive unauthorized private use of the internet can justify termination. Employers should be aware that this case is currently under review, and that the national court’s decision may impose stricter monitoring and consent requirements on employers.

However, the decision illustrates a promising uniformity across jurisdictions. Namely, there is a growing acceptance of the right of employers to monitor employees’ use of company computers when used to ensure productivity, provided that the company’s policies and rules clearly detail the employer’s right to monitor internet usage on company equipment.

Trade Secrets Directive

flag for European UnionPosted in European Union, Whistleblowing

The protection afforded to trade secrets is disparate across the EU. In order to protect trade secrets as potential drivers for economic growth and jobs and to create a level-playing field within Europe, the European Parliament has now approved the Trade Secrets Directive.

This Directive aims to provide a minimum, uniform level of protection in respect of undisclosed know-how and business information (trade secrets) against unlawful acquisition, use and disclosure. The intent is for this protection work in parallel with the existing uniform EU law protecting intellectual property.

The Directive provides a minimum standard framework, with common definitions, procedures and sanctions. Higher levels of protection are permitted. Accordingly, countries which already enjoy higher levels of protection (e.g. UK and Germany) will not necessarily need to take any steps to implement the requirements. Nonetheless, decisions of the ECJ interpreting the Directive may well have a bearing on the existing national law of Member States in relation to trade secrets.

The following is a list of the notable aspects of the Directive:

Recitals 27(a) – Post termination restrictions

There are no requirements to harmonise the laws in relation to post-termination restrictions, including non-compete clauses.

Article 1.2a – Subject matter and scope

The Directive does not seek to limit an employee’s use of their experience and skills honestly acquired through the normal course of their employment. This means that what amounts to a trade secret must be above and beyond something that is mere skill and experience. Additional restrictions cannot be put on employees to reduce their mobility because of the Directive.

Article 2 – Definition of “trade secret”

Under the Directive, a “trade secret” is information that (i) “is secret in the sense that it is not….generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question; (ii) has “commercial value because it is secret”; and (iii) “has been subject to reasonable steps under the circumstances, by the person in control of the information, to keep it secret” (emphasis added).

This broad definition reflects the wording of article 39(2) of international TRIPS Agreement (Trade-Related Aspects of Intellectual Property Rights), an agreement administered by the World Trade Organisation. It is also similar to the definition of trade secrets under the U.S. Uniform Trade Secrets Act.

This will be a definition that is ripe for judicial interpretation by the ECJ, especially those parts emphasised in italics.

Article 4(b) – Exception for whistleblowers

One exception to the general prohibition against disclosing trade secrets is for whistleblowers. Article 4(b) explicitly permits the disclosure of trade secrets by whistleblowers, where such disclosure involves raising “misconduct, wrongdoing or illegal activity, provided that the [whistleblower] acted for the purpose of protecting the general public interest”. We anticipate that the scope of this exception will be an area of controversy.

Article 9 – Provisional and precautionary measures

This gives judicial authorities the power to take certain interim actions and precautionary measures against an alleged infringer before a decision has been made. These would include: the cessation or prohibition of the use or disclosure of the trade secret on a provisional basis; a prohibition on producing, offering or placing on the market or using infringing goods or importing or exporting infringing goods; and seizing or delivering up suspected infringing goods. The Article is silent on other interim measures that judicial authorities may have the power to do e.g. search orders, freezing orders and pre-action disclosure.

Article 11 – Injunction and corrective measures

Once the case has been decided, the Directive gives judicial authorities to  grant final remedies in addition to or as an alternative to an award of damages, such as orders prohibiting the use or disclosure of the trade secret; prohibiting the production, offering or placing on the market or use of the infringing goods, or importing or exporting or storing infringing goods; adopting appropriate corrective measures with regard to the infringing goods; and destroying or delivering up of relevant documents, objects, materials, electronic files. These remedies will be familiar to UK lawyers.

Article 13 – Damages

This gives judicial authorities the power to award damages for misuse of trade secrets. Interestingly, the legislation expressly provides Member States with the option of limiting the liability for damages of employees where the misuse was unintentional.

Next Steps

The European Parliament has formally approved the Directive. It will now need to be endorsed by the Council of the European Union, which we expect to occur in May. Member States will then have two years to ensure that the national law is in accordance with the Directive, or implement it.

 

 

Further Insights: How the Recent Barbulescu Decision Impacts Employers in Europe and the United States

flag for European Unionflag for United StatesPosted in European Union, Privacy, Terminations, United States

Last month, we blogged about the much discussed ECHR Barbulescu opinion. (To review the implications of the case, please click here.) As a follow up, we wanted to provide further insights to multi-national employers about how this European decision compares to the position in the United States.

Purple Communications, Inc.: the United States’ approach to Email Monitoring

In the U.S., an employee’s freedom of expression, even when using an employer-provided email, has been closely guarded in recent years by the National Labor Relations Board (“NLRB”) under Section 7 of the National Labor Relations Act. Section 7 protects any employee when they engage in “concerted activities for…mutual aid or protection.” The NLRB has made clear that certain company policies that seek to limit social media and electronic communications could infringe on these rights, or “chill” concerted activities, and are therefore prohibited (for a full review of prohibited social media policies, see here, here, or here).

In December 2014, the NLRB encountered a similar policy to the one in Barbulescu. The case, Purple Communications, Inc., asked the Board to decide whether a newly introduced policy that required company electronic systems and equipment to “be used for business purposes only” violated Section 7. The Board held that introducing a blanket prohibition against employees using company electronic systems and equipment for private purposes violated Section 7.  The Board held that introducing such a blanket prohibition would chill the rights of employees to engage in concerted activities. Importantly, this decision was limited to employees who already had access to an employer’s email for business purposes, and noted that employee use can still be subject to “reasonable” restrictions (e.g., prohibiting work-time use of equipment for personal purposes, or sending oversized attachments).  The decision did not address the issue of whether a new policy which imposed a blanket ban on using company electronic systems and equipment would violate Section 7. The Board also noted (similarly to Barbulescu) that employers are permitted to monitor employee use of company electronic systems to ensure productivity during work-time, so long as the monitoring is not used to impede protected activity.  (You can read more analysis about the NLRB’s Purple Communications, Inc. decision here.)

Accordingly, based on Purple Communications and Barbulescu, employers in both the United States and Europe have the right to monitor an employee’s communications on company electronic systems and equipment to ensure that the employee is using work-time productively. However, in order to do so, employers should make it explicit to employees that they may monitor these systems for that purpose as part of their electronic communications and social media policies. A failure to have an express written policy creates a significant risk that any such monitoring would be unlawful: in Barbulescu, the absence of such a policy may well have led to a different decision that would have prohibited the review of personal material; the implication from  Purple Communications and other decisions under the NLRB is that absent a clear policy which sets out the scope and purpose of any monitoring, it will be far more difficult for a company to satisfy the NLRB that the monitoring does not violate Section 7.

Ontario’s Sexual Harassment Protections Passed

flag for CanadaPosted in Canada, Discrimination

Ontario’s Sexual Violence and Harassment Action Plan Act was passed and received Royal Assent on March 8, 2016. The Act will go into effect in six months on September 8, 2016. The Act creates new duties for employers to prevent and investigate sexual harassment in the workplace. To fully review the changes coming in the next six months, see our blog post from last month (here). Employers should be aware of these new requirements and should reach out to counsel to ensure that they are in compliance.

Termination for Offensive Social Media Posts May Be a “Reasonable Response” in the UK

flag for United KingdomPosted in Code of Conducts, Terminations, United Kingdom

The UK Employment Appeal Tribunal (EAT) recently considered two unfair dismissal cases in which an employer terminated an employee for inappropriately posting on personal Twitter or Facebook accounts. In both cases the EAT overturned the tribunal judge’s ruling for the employee; remanding one case for failure to apply the reasonable responses test and declaring the termination in the other case to be a fair and lawful response to the employee’s action.

It is well established in the UK that a dismissal will be deemed unfair unless the employer’s action falls within the “band of reasonable responses.” Simply, for a termination not to be unfair, the tribunal must decide if the action was within the range of reasonable responses that a reasonable employer may have taken in the same situation.

In the first case, Game Retail Limited v. Laws (UKEAT0188/14/DA, 3 November 2014), the employer terminated the employee for making numerous offensive tweets on his personal Twitter account.  The employee, Mr. Laws, was a loss and prevention officer in charge of monitoring fraud at numerous Game stores across the country.  In furtherance of his position, Mr. Laws began to follow a number of these stores on Twitter through his personal Twitter account.  Despite the fact that Mr. Laws did not identify himself as a Game employee, he was aware that many of the Game store managers knew of his role within the company and became followers of his Twitter account.  His account was also publicly available for anyone who chose to follow him on Twitter.

One of the Game store managers reported that Mr. Laws was posting offensive and derogatory tweets about numerous groups including dentists, Newcastle fans, and the disabled. Accordingly, Game dismissed Mr. Laws for gross misconduct.  Mr. Laws alleged unfair dismissal, and the Employment Tribunal concurred.  However the EAT disagreed, ruling the tribunal judge substituted his own views of reasonableness into the reasonable response test.  The EAT also noted the tribunal judge failed to take the public nature of the Twitter account into consideration.  In remanding the case to a new tribunal, the EAT made clear that employees’ right to freedom of expression must be balanced with the employer’s desire to remove or reduce reputational risk from its employees’ social media communications.

In the second case, British Waterways Board v. Smith (UKEATS0014/15/SM, 3 August 2015), Mr. Smith was dismissed for gross misconduct relating to offensive and derogatory Facebook posts about his employer.  British Waterways had a policy prohibiting employees in Mr. Smith’s position from drinking while they were on standby.  It also had a social media policy prohibiting postings which may embarrass the company.  Violating both of those provisions, Mr. Smith posted numerous offensive comments on Facebook ranging from the fact that he was drinking while on standby to his severe distaste for his employer and fellow employees.  British Waterways terminated Mr. Smith two years later upon discovering these Facebook posts.

Similar to Game Retail Limited, the Employment Tribunal found that Mr. Smith had been unfairly dismissed.  However, the EAT overturned the decision finding that the tribunal substituted its own views for the reasonable views of the employer.  The EAT held that British Waterways was clearly within the band of reasonable responses when it decided to terminate Mr. Smith.

These decisions should provide UK employers with some reassurance that terminating an employee for offensive social media postings is not unfair (and therefore lawful), depending on the facts of the case. Indeed, the British Waterways Board decision indicates that termination may still be reasonable despite the offensive postings occurring many years in the past.  The Game Retail Limited decision also demonstrates that an employee does not have to identify herself as a company employee in order for the postings to be considered damaging to the company’s reputation.

UK employers should continue to enact detailed social media policies and effectively communicate these policies to employees. The violation of a sensible social media policy will only enhance the likelihood that a termination decision based on that violation will be found within the band of reasonable responses.

Germany Adopts EU’s Pension Directive, and May Place Burdens on Employers’ Use of Temporary Workers

flag for GermanyPosted in Germany

Pension Law

On December 18, 2015, the German legislature approved a law that adopted the pension provisions of the EU Mobility Directive. The Directive was passed to enhance worker mobility between EU countries by requiring stronger pension protections, yet some EU member countries have yet to adopt the pension provisions of the Directive. The new German law adopts two major provisions for employers:

  1. Pensions will now fully vest in three years instead of five years, and employees can participate in the plan starting at age 21 instead of age 25.
  2. The value of a vested pension for former employees (inactive plan members) must now be adjusted to remain commensurate with the vested rights of active members.

These new requirements make it easier for employees to transfer jobs and move between EU countries by protecting pensions after moving to a job in Germany. However, the law now provides fully vested pensions to employees as young as age 24, and the required adjustments to final-pay pension plans may significantly increase an employer’s pension expenses. The law will go into effect on January 1, 2018.

Temporary Employees

The German cabinet also is considering a law that would provide further protections to temporary employees. The law would make 18 months the maximum length for temporary employment. If the position continues past 18 months, an employment relationship with the hiring business is presumed. While the law would create a bright line at 18 months, the time period is subject to deviations through a collective agreement. The law also would require equal pay for temporary employees after the ninth month, and would prohibit the employment of temporary employees as strike breakers. If approved this year, the law would go into effect on January 1, 2017.