India’s Parliament has officially passed an increase to maternity leave in India. The new law entitles most mothers to 26 weeks of paid leave.
We last reported that India’s Upper House of Parliament approved the increase in August, 2016. However, India’s lower house held off approving the legislation until last week. The new law provides mothers with the following protections:
- Leave may start up to eight weeks before the expected delivery date.
- The introduction of 12 weeks of paid leave for mothers adopting a child younger than 3 months old, and for women having a child through a surrogate.
- All employers with 50 or more employees must provide a crèche (day nursery), and allow the mother four daily visits to the nursery;
- Allows new mothers and their employer to agree to a period of time for the new mother to work from home after the 26 week leave ends; and
- Employers must inform women of their right to maternity leave at the time of hire.
Nonetheless, the new provisions only apply to a mother’s first two children. The increase to 26 weeks does not apply to mothers with 2 or more children. For those mothers, the leave continues to be 12 weeks.
Still, the increase goes far past the protections in most other countries, and notably exceeds the 12 weeks of unpaid leave provided to parents in the United States under federal law. The law still requires Presidential assent and must be published in the Parliament’s Official Gazette in order to be fully enacted. However, these procedural steps should occur within the next few weeks.
What 2016 lacked in employment law changes, it made up with political surprises (Brexit) and sweeping data protection changes (the GDPR). Due to these dynamic changes and in anticipation of what lies ahead, our UK employment team published the Top Ten Things to Know About the UK Employment Law Landscape in 2017. In this briefing, we highlight recent legal developments, look ahead to what’s coming in 2017 and provide practical steps companies can proactively take to respond to this ever-changing landscape.
An Employment Tribunal in the United Kingdom ruled that a bicycle courier for CitySprint, a delivery firm, was a worker rather than self-employed and therefore entitled to paid leave. This is the most recent decision in a string of UK cases dealing with the “gig economy,” namely, repeated short-term work such as ride-sharing or courier services.
In the most recent case, Margaret Dewhurst worked as a bicycle courier for CitySprint, a company that organized and supplied courier services. Ms. Dewhurst took two days of vacation and brought a claim against CitySprint requesting pay for those two days of leave under the United Kingdom’s Working Time Regulations. Importantly, UK legislation differentiates between individuals who are “self-employed” and workers. While workers are not entitled to the same rights as employees, they have certain rights which are not enjoyed by self-employed independent contractors, including the right to be paid the minimum wage, protections under whistleblowing legislation and the right to receive paid annual leave.
Turning to whether Ms. Dewhurst was a worker or self-employed, the Tribunal noted that she had signed a series of computer-based agreements on her first day, including that she is “a self-employed contractor” and that she is “an independent business….” The agreements were not explained to Ms. Dewhurst. Therefore, the Tribunal discounted these agreements, noting they had likely been “generated by the ‘army of lawyers’” and that they “illustrate[d] the inequality of bargaining power” between Ms. Dewhurst and CitySprint.
The Tribunal instead looked to the “true situation” of the work relationship, ruling that the while the express terms of the contract were a “key piece in the jigsaw,” they were ultimately not dispositive. Ruling that Ms. Dewhurst was a worker rather than a self-employed contractor, the Tribunal focused on her day to day work. Specifically, the Tribunal noted that:
- Ms. Dewhurst tended to work established days and hours;
- Ms. Dewhurst did not work for other businesses;
- Ms. Dewhurst received training about how to perform her courier duties;
- Ms. Dewhurst had to wear a uniform;
- Ms. Dewhurst did not have full control over accepting or declining jobs;
- CitSprint handled billing client; and
- CitySprint allocated the jobs.
The Tribunal concluded by noting that “[o]verall, [couriers] have little autonomy to determine the manner in which their services are performed and no change at all to dictate its terms. In public, in dealings with their controllers and between themselves[,] the couriers regard themselves as part of the CitySprint family, for better and for worse.” Therefore, the Tribunal ruled that Ms. Dewhurst was a worker and entitled to paid leave.
While this decision is technically tied to the facts of the case, its reasoning will likely apply to other workers in the “gig economy” who are part of a strong corporate structure with clear requirements and oversight. In particular, it highlights the potential risk of misclassifying individuals as independent contractors when they are in fact workers. We will continue to monitor the rapidly developing law in this area.
We wrote about the Draft Gender Pay Gap Regulations in the April 2016 edition of A Month in UK Employment Law. In December 2016, the UK Government published a revised version of these Regulations which are expected to come into force on 6 April 2017.
As a reminder, the Regulations require private sector employers in the UK with at least 250 employees to publish certain information about the differences in pay between men and women. It is anticipated that 7,960 employers and around 11 million employees will be affected (34% of the total UK workforce).
A new law, called El Khomri law, passed on August 8th, 2016 in France providing a right to disconnect for employees.
Such right is entered into force on January 1st, 2017
According to the law, it belongs to the employers and the unions to negotiate this new right to determine its modalities of application and of control. Such negotiation should take place in companies having at least 50 employees and should provide for the implementation of mechanisms of regulation regarding the use of the new technologies in order to ensure the compliance with rest times and holidays and the familial and personal life of the employees. Continue Reading
The High Court ruled on December 1, 2016 that Northampton Recruitment Limited was not liable when a manager punched an employee twice in the head after a Christmas party. While the Company was not held liable, the case is a cautionary tale for companies during the holiday season.
In Jeffrey v. The British Council 2016, the Employment Appeal Tribunal (“EAT”) ruled that an employee who had an “exceptional degree of connection” with the United Kingdom could bring claims in the UK even though he had been working outside of the UK for over 20 years. This provides an important exception to the general rule that employees have to be working in the UK to bring employment claims there.
As previously reported on our Privacy Blog, TalkTalk, a major UK telecoms company, has been fined a record breaking £400,000 for a data breach after they were hacked. This fine, given by the ICO (the UK’s data protection authority), followed an in-depth investigation into an attack by hackers on TalkTalk’s systems where hackers obtained the details of 156,959 customers, including their names, addresses, dates of birth, phone numbers and email addresses. The maximum fine the ICO can require companies to pay is £500,000. Read the full post on our Privacy Law Blog.
On July 30, 2016, newly-elected British Prime Minister, Theresa May, wrote an article detailing how her government would lead the charge in combatting modern slavery. As a major proponent of the UK Modern Slavery Act (and one who played a key role in the Act’s passage as former Home Secretary), May pledged to make it her personal mission to help eradicate the “barbaric evil” of slavery and human trafficking, calling it the “great human rights issue of our time.” In doing so, she announced the allocation of £33 million from her aid budget to create a 5-year International Modern Slavery Fund focused on high-risk countries.
The Upper House of India’s Parliament just passed an amendment to India’s Maternity Benefit Act of 1961. The amendment increases maternity leave to 26 weeks of paid leave, a major increase over the current 12 week leave. Continue Reading