Our September update considers recent key developments in UK employment law, including a case on calculating holiday pay for irregular workers and a Supreme Court decision on non-party access to court documents. We also outline other points of note, including developments relating to non-disclosure agreements and gender pay gap reporting.

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In 2019, discrimination is rarely overt or deliberate.  As a society we have come a long way from the ‘No Blacks, No Dogs, No Irish’ signs of decades past.  But conscious intent is not necessary for unlawful discrimination to occur.  We all have unconscious biases based on stereotypes and prejudices.  We may not always realise our biases, but we do need to be aware that biases related to protected characteristics such as age, sex and gender can give rise to unlawful treatment.

In the UK, under the Equality Act 2010, direct discrimination occurs where “because of a protected characteristic, A treats B less favourably than A treats or would treat others”.  In a discrimination claim, it falls to the Tribunal to consider the reason why the claimant was treated less favourably.  In other words, what was the conscious or subconscious reason for the treatment?  This requires the Tribunal to undertake an enquiry into the mental processes of the alleged discriminator.

As a reminder, the burden of proof lies initially with the claimant, and then shifts to the employer where the claimant shows a ‘prima facie’ case of discrimination.  If the claimant can establish a sufficient difference in treatment then there is likely to be a prima facie case of discrimination.  The alleged discriminator will then need to show a cogent reason for its actions.  Where there is no overt evidence of discrimination, the Employment Tribunal is entitled to draw inferences from the surrounding facts in order to conclude that unlawful

The German Federal Labor Court (BAG) recently held, that employers are not prevented from using grounds which failed to justify a termination in order to file for a subsidiary motion to end employment.

Under German dismissal law, employees can only be dismissed on socially justified grounds. If an employee brings a claim relating to their dismissal and the Court finds that the employer cannot demonstrate a satisfactory socially justified reason, the dismissal will be invalid meaning the employer will have to re-employ them and they will be awarded back pay. However German dismissal law also provides for a remedy to allow employers to file a motion to end employment with employees during wrongful dismissal proceedings. Where the courts find that employment was not effectively terminated by the dismissal, but the employer cannot reasonably be expected to continue employing the plaintiff, the Court shall upon the employer’s motion dissolve the employment relationship. As a result the employer may be ordered by the court to make an appropriate severance payment (Sec. 9 KSchG/ Wrongful Dismissal Act).

Until now, German courts held that employers may only justify such a motion on grounds which were not already considered in the wrongful dismissal proceedings, for example the termination itself has irreparably damaged the relationship between the parties. Now the BAG held, that employees who have been dishonest in the wrongful dismissal proceedings are not entitled to this protection.

In the case in question, the employee was employed at a company manufacturing battery cells under extreme

Forty-five years after the law “for professional equality,” the wage gap between women and men persists. In order to overcome this, the law “for the freedom to choose one’s professional future” imposes new measures on companies. The French law “for the freedom to choose one’s professional future” was definitively adopted on 1 August 2018 by the French Parliament and approved on 4 September by the Constitutional Council (Decision No. 2018-769 DC of 4 September 2018); it was published in the Journal Officiel on 6 September 2018.

The overriding principle is that all employers must have as an objective the removal of the pay gap between women and men (new article L. 1142-7 of the Labor Code). Further, while there is no penalty for non-compliance with this principle in itself, certain provisions of the law are mandatory and subject to sanctions if not respected.

Of particular note are provisions that apply to companies with at least 50 employees:

• The employer must annually publish indicators relating to pay gaps and the actions implemented to remove them (the terms and methodology of this annual publication will be defined by decree) (new Article L. 1142-8 of the Labor Code). In the absence of publication, a financial penalty may be applied under conditions determined by decree (yet to be published).
• If the results obtained by the company are below the indicators defined by the decree, catching-up financial measures must be considered (Article L. 2242-1 of the Labor Code). If no agreement is reached, these
  

The French law “for the freedom to choose one’s professional future” definitively adopted on 1 August 2018 by the French Parliament and approved on 4 September by the Constitutional Council (Decision No. 2018-769 DC of 4 September 2018) was published in the Journal Officiel on 6 September 2018. The law strengthens the fight against sexual harassment and sexist behavior in companies.

Under the new law, by 1 January 2019 at the latest, certain employers will be required to take measures to combat sexual harassment and sexist behavior in the workplace:

• The obligation to appoint the following points of contact:

(i) A point of contact in companies with at least 250 employees, responsible for guiding, informing and supporting employees in the fight against sexual harassment and sexist behavior (new article L. 1153-5-1 of the French Labor Code). The objective is to enable victims of such acts to identify a contact person within the company.

(ii) A point of contact nominated by a company’s Social and Economic Committee (Comité social et économique) from among its members, regardless of the number of employees, for a period ending with the term of office of the elected members of the Committee (Article L. 2314-1 of the amended French Labor Code).

• The reinforcement of the obligation to post the civil and criminal consequences of sexual harassment and the contact details of the authorities and competent services in workplaces and on the premises where the hiring is done. The list of these services will
  

Derived from EU Directive 2001/23/EG, the German law on Transfer of Business (“TUPE”) protects employees in a business transfer situation. As a starting point, TUPE transfers the employment of affected employees from one employer to another on their existing terms and conditions. However, a potential  impact of recent decisions by the German Federal Labor Court on TUPE is that, even many years after restructurings and – supposedly – concluded transfers of business transactions, employees may claim ongoing employment with their original employer (”transferor”) if it is held that no transfer of business actually occurred.

The case law in this area has continued to develop based on rulings by the Federal Labor Court/ (“BAG”). Recently the BAG rendered two decisions (BAGE 8 AZR 265/15 and BAGE 8 AZR 309/16) with far reaching consequences for companies doing business in Germany.

How long after a “transfer” will the Courts intervene?

In the most recent decision (BAGE 8 AZR 309/16), an employee filed suit with the local labor courts against his original employer four years after his employment was (allegedly) transferred from his old employer to a newly established sister company (“transferee”). The original employer transferor and the new sister company had informed the employee about his transfer of employment and the employee had never contested it. To the contrary the new sister company kept the employee on its pay role, paid his salary and contributed to German social security over all the four years. When insolvency was filed at the level of the

Welcome to the third post in our ‘GDPR HR Issues’ blog series. Drawing on key insights from across Bryan Cave Leighton Paisner’s global Employment & Labor team, the series highlights key GDPR issues affecting employers.

This blog focuses on new obligations imposed by the GDPR to notify the relevant supervisory data protection authority (“DPA”) and those individuals whose data have been violated, when an employer becomes aware of a violation affecting personal data that it processes (a “data breach”).

If an employer discovers that the personal data it holds concerning its employees is, for example, accidentally accessed by a third party without authorization, what practical steps should it take to manage such a breach?

A personal data breach occurs when a breach of security affects the personal data’s confidentiality (unauthorized disclosure or access to the data), integrity (data is involuntarily or unlawfully modified or destroyed) or availability (loss of data). Data breaches can be accidental or deliberate.

• Take immediate action to mitigate the breach (for example restore access authorizations where there has been a security failure and take such other IT security measures as necessary);
• Set up a crisis team. This should include the Data Protection Officer (the “DPO”) if the company has one (or if not, a person responsible for data privacy in the organization) as well as people from HR, Legal, IT and any other
  

The “Große Koalition” (the Grand Coalition) recently concluded a variety of legislative projects which will result in additional headaches, administrative hurdles, thresholds and new deadlines for HR professionals and employment experts. Traditionally, labor and employment laws in Germany have tended to be employee friendly. Now it appears that the few remaining employer-friendly laws enacted in the early 1980s to improve overall employment in Germany will also be reversed.

One area subject to challenge is time restricted employment. Until now, German employers could use time restricted employment even without substantive reasons for up to two years. This concept, known by the somewhat technical German term “sachgrundlose Befristung”, became extremely popular due to wide coverage which extended outside the legal press.

Federal Constitutional Court narrows use of time restricted employment contract

In June 2018, the Federal Constitutional Court in Germany (“Bundesverfassungsgericht”) overruled a 2011 judgment of the Federal Labor Court (“Bundesarbeitsgericht”). The Federal Labor Court had ruled that the employer could conclude unfounded time restricted employment contracts provided the employee had not been previously employed by the employer within a three year period. This ruling went beyond the law itself which does not provide for a concrete threshold period but rather prohibits an unfounded time restricted employment contract if the employee was “previously employed” with the same employer.

The Federal Constitutional Court has rejected this approach, holding that setting a three year threshold period is not the role of the judicative power but must be laid down by legislation. Therefore, the three

Under German law, employees generally apply for holiday during the holiday year so that their claims can be fulfilled. If they fail to do so, their entitlement lapses at the end of the year. When employees leave their firms, they cannot claim compensation for unused holiday. A recent Advocate-General’s opinion has now thrown doubt on this practice.

This area has been under scrutiny, as several Regional Labour Courts have granted employee claims for compensation in the form of a substitute holiday (or compensation) specifically in cases where the employee has not applied for holiday during the year. Up to now, the question of whether the employee is also entitled to compensation after failing to submit the appropriate holiday request was unresolved because the German Federal Holiday Act does not contain a corresponding provision.

Two cases on this issue presented by the Federal Labour Court and by the Higher Administrative Court of Berlin-Brandenburg (Case Nos.: C-619/16 and C-684/16) are currently being considered by the European Court of Justice (ECJ). In one, an employee sued a former employer for damages for untaken holiday although the employee had not applied for leave during the relevant calendar year. The claim was upheld by the Regional Labour Court. However, on appeal the German Federal Labour Court had its doubts and asked the ECJ to consider whether a holiday request is required before an employee is entitled to be compensated for untaken holiday at the end of the period under consideration.

Advocate-General Yves Bot presented his

Welcome to the 2nd post in our ‘GDPR HR Issues’ blog series. Drawing on key insights from across Bryan Cave Leighton Paisner’s global Employment & Labor team, the series highlights key GDPR issues affecting employers.

With the General Data Protection Regulation (‘GDPR’) coming into effect today, employers with EU-based staff need to ensure that they properly comply with the new regime. Failure to do so can result in significant fines and disruption to your business.

This blog focuses on the changes made by GDPR to a fundamental data protection right – an employee’s right to find out what information their employer holds on them by making a data subject access request (‘DSAR’).