On April 1 2017, the reform of the German Act on Temporary Agency Work (Arbeitnehmerüberlassungsgesetz) came into force bringing major changes for agencies and their clients. Agencies and their customers have to revisit work processes and agreements. The same is true for the use of external staff based on service or work contracts (e.g., facility management, IT services) The time to act is now, since not all changes are subject to transition periods. In fact, material changes already came into force on April 1,2017, the violation of which may result in severe sanctions up to criminal penalties.
As we reported last summer, Germany’s Financial Supervisory Authority (BaFin) set up a centralized platform for receiving whistleblower complaints of alleged violations of supervisory provisions within the financial sector.
Beginning this year, the BaFin implemented a new electronic system, allowing whistleblowers to submit their reports. The system guarantees the informants absolute anonymity, while on the other hand enabling the BaFin to make contact regarding possible inquiries. Thereby, although taking place on anonymous basis, the newly installed communication channel is expected to give BaFin the opportunity to verify the truth value of the submitted information by posing further questions, e.g. regarding the background of the complaint. READ MORE
The German Federal Labor Court (Bundesarbeitsgericht – BAG) has ruled that when an employer provides Facebook users access to publish posts on the company’s Facebook page that relate to the behavior or performance of individual employees, that process is subject to negotiation and co-determination of the works council.
The ruling is of particular significance especially for companies with an existing works council in Germany that operate a Facebook page or a page on a similar social network with a commenting function for users.
On October 21, 2016, the German Parliament adopted the draft law regarding the reform of the German Act on Temporary Agency Work (Arbeitnehmerüberlassungsgesetz – AÜG). The reform will come into force as planned on April 1, 2017 and will bring material changes for both, agencies and their customers, the host businesses.
A legislative change that entered into force on October 1, 2016, affects multinationals with employees working in Germany. In order to comply with these recent changes, companies doing business in Germany should now double-check and, where necessary, adjust their standard employment contracts.
Just in time for the 10th anniversary of the German General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz – AGG) the European Court of Justice (ECJ) has clarified that European anti-discrimination law does not protect mock applicants, i.e. applicants who are not interested in being hired, but solely apply in order to bring claims on the grounds of discrimination. The judgment will make it easier for companies in Europe to reject such discrimination claims in the future.
Last week, Germany’s Financial Supervisory Authority (BaFin) unveiled a centralized platform for receiving whistleblower complaints, including anonymous complaints, of alleged violations of supervisory provisions within the financial sector. The move appears to represent a shift in German ideology toward a more favorable view of anonymous reporting, which for many years was discouraged in Germany and more broadly in the EU due to the risk of “organized systems of denouncement.” Under the new program, whistleblowers may submit reports in writing (on paper or electronically), by phone (with or without recording the conversation), or verbally. BaFin’s press release announcing the program states that it will make the anonymity of whistleblowers a “top priority,” and that it will not pass on the identity of whistleblowers to third parties. The program is “aimed at person with a special knowledge of a company’s internal affairs – for example because they are employed there or have some other contractual relationship or relationship of trust with the company.”
BaFin was required to implement this new platform due to an amendment to the German Act on Financial Services Supervision. Notably, the Act only applies to the financial services sector, not including external accountants, tax consultants and attorneys. It provides that employees working in the financial services sector may not be held liable for reporting potential or actual breaches of law under either employment law or criminal law, unless the report was false or grossly negligent.
The French government has presented before Parliament the “El Khomri” bill which, if passed, should modify a significant part of the employment law framework in France.
Among various provisions, the bill mentions the right, for the employees, to disconnect.
Indeed article 25 of the bill states that the employer has to regulate the employees’ use of digital tools in order to protect their private and family life as well as resting periods.
More specifically, it is provided that the terms and conditions related to the right to disconnect are part of the topics which must be discussed on an annual basis between the employer and the employees’ representatives, during the mandatory negotiations related to the quality of work life. The purpose of it is to ensure the respect of rest time provisions and minimum leave.
This does not entail an absolute obligation to stop all email exchanges during weekends or out of working hours. Instead, it should help employers defining new rules within the company in order to achieve a good work/private life balance.
We set out below our best guess on where this leaves employees, management and HR in the UK.
Firstly as we have all heard repeatedly today, nothing is going to change immediately and that is the same for employment law. It will be years before any changes are made and for the time being, everything remains the same and critically, no one has to leave.
Much of our employment law is just that – employment law driven solely by the UK. We then have laws that have been enacted into UK law as a result of European directives – so those laws are the ones that may, at some point in the future, be targeted. Our guess at Orrick is that changes where they happen will be focused on consultation rights, holiday pay and working time. Worker involvement has never had the same traction in the UK that it has with our European counterparts and the UK has always viewed employee consultation with a degree of skepticism. For this reason, we think it may eventually be a focus for change.
On June 1, 2016, the draft law regarding the reform of the German Act on the Supply of Temporary Employees (Arbeitnehmerüberlassungsgesetz – AÜG) has been adopted by the Federal Cabinet. The German Bundestag will address the draft law after the summer break. However, material changes to the draft are not expected to be made during the parliamentary process. If the time schedule will be observed, the reform will come into force as planned on January 1, 2017.
The new law will bring material changes for both, employment agencies and their customers, the host businesses.