Dear all
Belated happy new year (the Year of the Rooster in China)!
Welcome to the Spring 2017 edition of the newsletter. Many thanks to all of our contributors, and please let me know if you are interested in submitting an article for a future edition.
Helen Colquhoun
Withers
(qualified in Hong Kong, England & Wales, New York)
Friday, February 10, 2017
Canada - Good Grief! Is that my Supervisor on the Picket Line?
By Theodore Goloff, Robinson Sheppard Shapiro
A recent decision of the Tribunal administratif du travail in Quebec could usher in a whole new reality in Quebec labour law: first line supervisors having the right to collective bargaining and the right to strike!
1. Tectonic changes have been occurring in the labour relations in the past twelve months with little or no attention being paid by employers in Quebec. In January 2015, the Supreme Court had reversed the position that it took thirty years ago, and declared that not only was substantive collective bargaining a Charter-protected right, but that the right to strike was equally Charter-protected. Those rights could only be restricted by legislation when there is an overarching and urgent societal interest to do so, provided that the means chosen was the least intrusive that could achieve the goal.
2. These fundamental changes have recently been used by the Tribunal administratif du travail (“TAT”) to produce another tectonic change in one of the pillars of Quebec labour relations - the statutory exclusion of first-line supervisors from any possibility of unionization. Indeed, the December 7, 2016 declaration by the TAT in Association des cadres de la Société des Casinos du Québec et Société des casinos du Québec inc., 2016 QCTAT 6870, that Section 1(l)(1) of the Quebec Labour Code, defining an “employee” as excluding:
“a person who, in the opinion of the Tribunal, is employed as manager, superintendent, foreman or representative of the employer in his relations with his employees…”;
is inoperative, at least in that case, because it denies that employer’s first line supervisors of these fundamental Charter-protected rights as recognized by the Supreme Court, fogs the distinction between management and labour, and will, unless overturned, create rather than settle conflict. While the direct effect of the decision right now only applies to the employers involved, its application will, no doubt, be progressively widened to include all first-line supervisors who do not in fact exercise some degree of substantive managerial authority.
BACKGROUND
3. Traditionally, first-line supervisors were considered representatives of management who could not be placed into situations of divided loyalties or potential conflicts of interest. Since they represented management themselves, they could not and should not be open to any possibility of unionization or collective bargaining, rights that were legislatively created. Until viewed as Charter-protected rights, the state would be free to limit such legislatively created rights exclusively to those to whom they were intended to apply. Given the responsibilities that a union member has towards his fellow union brothers it was felt from the inception of the first labour relations statute in 1941, right through to the latest amendments to the Labour Code in 2015, that allowing supervisors to organize would create impossible conflicts of interest. The landscape and environment has now changed!
WHY EMPLOYERS SHOULD TAKE NOTICE
4. Fundamentally, if this decision is allowed to stand and is widely applied, serious questions will arise as to how small- and medium-size firms can operate efficiently. Think of the impact that decisions that first-line supervisors if they are truly management representatives, make or supposedly make every day, decisions that bind employers. These include evaluation of probationary employees, evaluation of employees to be laid off or let go in the event of downsizing, assignment of overtime, selection of employees for promotion, assignment to and balancing of shifts, evaluation of employees for periodic salary advancement, recognition, documentation and decision regarding conduct requiring discipline, evaluation and effective treatment of employee complaints and grievances quickly and effectively as they arise, and a host of other vital decisions that impact the bottom line. All of these form part of what should be part and parcel of the role of a first-line supervisor. Some have said that such supervisors are the lynchpin between executive-level management and the shop floor. Scripture recognizes the impossibility of having a foot in two opposing camps in the parable “He who is not for me is against me”. In a sense, the exclusion provided by Art. 1(l) of the Labour Code of foremen, supervisors and other representatives of managements in their dealings with employees mirror the parable.
5. This basic tenet of Quebec labour relations has now been thrust aside ostensibly on the basis that unionization collective bargaining and the right to strike, now recognized as fundamental, human rights that are Charter-based and Charter-protected, at least for those that are really and truly “employees”, and not the true persona of the “employer”. How severely operations will be impacted remains to be seen. Much will depend in each case on whether and how effectively and completely first-line supervisors are true management decision makers. In very large organizations, such as la Société des casinos du Québec inc., first-line supervisors have seen their managerial role diluted, with decisions being made further up the line. Constant erosion of even minimally independent authority of first-line supervisors in the name of consolidation of power higher up the line and/or “standardization” in large organizations has blurred the boundaries between who is management and who is labour. The possible impact of the TAT’s decision on such large organizations is far less drastic than on small- and medium-sized employers because they, unlike small organizations, have multiple layers of supervisors. Small- or medium-sized employers simply don’t have that luxury! How successful will unionized supervisors be in protecting management rights and efficient operations without costly additional independent supervision present? Will they themselves, as the supervisors of the Société des Casinos, seek union certification?
EFFECTS ON CONTINUING OPERATIONS DURING A STRIKE
6. Quebec’s “anti-scab” legislation (Sections 109.1 et al. of the Labour Code) provides that management employees hired before notice to bargain are about the only persons who might continue all operations during a lawful strike by unionized employees. Other unionized employees who are not themselves on strike, are allowed to continue working doing only their own jobs. Up to now, persons who were considered as being covered by Section 1(l)(1), as above, could do any and all work in the place and stead of striking employees. If the decision of the TAT is allowed to stand, what little opportunity management may have in carrying on business during a strike might disappear, effectively, only executives could be doing the work of the bargaining unit on strike.
CONCLUSIONS
7. The TAT’s decision was based on the labour relations of a very complex large employer where the true managerial authority of the supervisors involved had been eroded over the years.
8. The problematic effects of the decision might be reduced for an employer to truly empower first-line supervisors with real decisional authority so that their role as the embodiment of the employer is unmistakable. In any case, wouldn’t that lead to effective “hands on” management? Empowering such folks no doubt requires both training and their “buying into” managerial goals and procedures. It requires the confidence of their superiors that they will exercise discretion properly. Take for instance discipline. It’s not sufficient to tell supervisors that they have to document instances of problematic conduct. For them, to truly do so regularly and apply rules of conduct consistently and accurately and fully requires that they understand why all of this is necessary and the process of progressive and constructive discipline. They have to self-identify with the reasonability of all of this and its importance for running the business efficiently. Being a good line operator does not itself equate to being a good supervisor.
9. If employers continue to dilute the responsibilities of first-line supervisors, they can expect results much like in Société des casinos. If they strengthen their supervisors’ authority and training, they will have a fair to middling shot at avoiding seeing these folks unionize, assuming of course that the TAT’s decision withstands the inevitable and likely appeals process.
A recent decision of the Tribunal administratif du travail in Quebec could usher in a whole new reality in Quebec labour law: first line supervisors having the right to collective bargaining and the right to strike!
1. Tectonic changes have been occurring in the labour relations in the past twelve months with little or no attention being paid by employers in Quebec. In January 2015, the Supreme Court had reversed the position that it took thirty years ago, and declared that not only was substantive collective bargaining a Charter-protected right, but that the right to strike was equally Charter-protected. Those rights could only be restricted by legislation when there is an overarching and urgent societal interest to do so, provided that the means chosen was the least intrusive that could achieve the goal.
2. These fundamental changes have recently been used by the Tribunal administratif du travail (“TAT”) to produce another tectonic change in one of the pillars of Quebec labour relations - the statutory exclusion of first-line supervisors from any possibility of unionization. Indeed, the December 7, 2016 declaration by the TAT in Association des cadres de la Société des Casinos du Québec et Société des casinos du Québec inc., 2016 QCTAT 6870, that Section 1(l)(1) of the Quebec Labour Code, defining an “employee” as excluding:
“a person who, in the opinion of the Tribunal, is employed as manager, superintendent, foreman or representative of the employer in his relations with his employees…”;
is inoperative, at least in that case, because it denies that employer’s first line supervisors of these fundamental Charter-protected rights as recognized by the Supreme Court, fogs the distinction between management and labour, and will, unless overturned, create rather than settle conflict. While the direct effect of the decision right now only applies to the employers involved, its application will, no doubt, be progressively widened to include all first-line supervisors who do not in fact exercise some degree of substantive managerial authority.
BACKGROUND
3. Traditionally, first-line supervisors were considered representatives of management who could not be placed into situations of divided loyalties or potential conflicts of interest. Since they represented management themselves, they could not and should not be open to any possibility of unionization or collective bargaining, rights that were legislatively created. Until viewed as Charter-protected rights, the state would be free to limit such legislatively created rights exclusively to those to whom they were intended to apply. Given the responsibilities that a union member has towards his fellow union brothers it was felt from the inception of the first labour relations statute in 1941, right through to the latest amendments to the Labour Code in 2015, that allowing supervisors to organize would create impossible conflicts of interest. The landscape and environment has now changed!
WHY EMPLOYERS SHOULD TAKE NOTICE
4. Fundamentally, if this decision is allowed to stand and is widely applied, serious questions will arise as to how small- and medium-size firms can operate efficiently. Think of the impact that decisions that first-line supervisors if they are truly management representatives, make or supposedly make every day, decisions that bind employers. These include evaluation of probationary employees, evaluation of employees to be laid off or let go in the event of downsizing, assignment of overtime, selection of employees for promotion, assignment to and balancing of shifts, evaluation of employees for periodic salary advancement, recognition, documentation and decision regarding conduct requiring discipline, evaluation and effective treatment of employee complaints and grievances quickly and effectively as they arise, and a host of other vital decisions that impact the bottom line. All of these form part of what should be part and parcel of the role of a first-line supervisor. Some have said that such supervisors are the lynchpin between executive-level management and the shop floor. Scripture recognizes the impossibility of having a foot in two opposing camps in the parable “He who is not for me is against me”. In a sense, the exclusion provided by Art. 1(l) of the Labour Code of foremen, supervisors and other representatives of managements in their dealings with employees mirror the parable.
5. This basic tenet of Quebec labour relations has now been thrust aside ostensibly on the basis that unionization collective bargaining and the right to strike, now recognized as fundamental, human rights that are Charter-based and Charter-protected, at least for those that are really and truly “employees”, and not the true persona of the “employer”. How severely operations will be impacted remains to be seen. Much will depend in each case on whether and how effectively and completely first-line supervisors are true management decision makers. In very large organizations, such as la Société des casinos du Québec inc., first-line supervisors have seen their managerial role diluted, with decisions being made further up the line. Constant erosion of even minimally independent authority of first-line supervisors in the name of consolidation of power higher up the line and/or “standardization” in large organizations has blurred the boundaries between who is management and who is labour. The possible impact of the TAT’s decision on such large organizations is far less drastic than on small- and medium-sized employers because they, unlike small organizations, have multiple layers of supervisors. Small- or medium-sized employers simply don’t have that luxury! How successful will unionized supervisors be in protecting management rights and efficient operations without costly additional independent supervision present? Will they themselves, as the supervisors of the Société des Casinos, seek union certification?
EFFECTS ON CONTINUING OPERATIONS DURING A STRIKE
6. Quebec’s “anti-scab” legislation (Sections 109.1 et al. of the Labour Code) provides that management employees hired before notice to bargain are about the only persons who might continue all operations during a lawful strike by unionized employees. Other unionized employees who are not themselves on strike, are allowed to continue working doing only their own jobs. Up to now, persons who were considered as being covered by Section 1(l)(1), as above, could do any and all work in the place and stead of striking employees. If the decision of the TAT is allowed to stand, what little opportunity management may have in carrying on business during a strike might disappear, effectively, only executives could be doing the work of the bargaining unit on strike.
CONCLUSIONS
7. The TAT’s decision was based on the labour relations of a very complex large employer where the true managerial authority of the supervisors involved had been eroded over the years.
8. The problematic effects of the decision might be reduced for an employer to truly empower first-line supervisors with real decisional authority so that their role as the embodiment of the employer is unmistakable. In any case, wouldn’t that lead to effective “hands on” management? Empowering such folks no doubt requires both training and their “buying into” managerial goals and procedures. It requires the confidence of their superiors that they will exercise discretion properly. Take for instance discipline. It’s not sufficient to tell supervisors that they have to document instances of problematic conduct. For them, to truly do so regularly and apply rules of conduct consistently and accurately and fully requires that they understand why all of this is necessary and the process of progressive and constructive discipline. They have to self-identify with the reasonability of all of this and its importance for running the business efficiently. Being a good line operator does not itself equate to being a good supervisor.
9. If employers continue to dilute the responsibilities of first-line supervisors, they can expect results much like in Société des casinos. If they strengthen their supervisors’ authority and training, they will have a fair to middling shot at avoiding seeing these folks unionize, assuming of course that the TAT’s decision withstands the inevitable and likely appeals process.
France - The French Employee's 'Right to Disconnect'
By Roselyn Sands and Nicolas Etcheparre, EY Société d’avocats
As usual, French labor and employment law continues to be at the heart of French legislative activity with numerous changes in the past months. Yet one topic has attracted the most media attention and has been one of the most recent trending subjects: the “right to disconnect” from mobile devices outside of working hours.
This new “right to disconnect” is applicable since January 1, 2017. Essentially, it requires employers and employee unions to engage in collective bargaining to negotiate the conditions under which employees will be entitled to disconnect from their mobile devices outside of working.
The main purpose of this law is to ensure that working hours are complied with, and to protect the health and safety of employees, by allowing them to actually rest in between work days, on weekends and during holidays.
What is the right to disconnect?
One of the main issues brought by this law is that it does not specify what needs to be understood as the right to “disconnect”. When asked to provide a specific definition the Government explained that the right to disconnect was, for instance, “the right for an employee to not answer emails outside of working hours”, and that in fact, this new right would “allow companies to manage this issue and adapt to new and more modern way of working”.
French legal doctrine has defined this right as the right for employees “to not always be reachable, for uninterrupted periods of time, for professional reasons. This right entitles employees to be temporarily disconnected from the digital tools that allow them to be reachable for professional reasons (e.g. smartphones, emails, internet)”
To ensure that this new right is complied with, employers will have to implement measures allowing employees to be disconnected outside of working hours. Such measures could include technical limitations, such as smartphones that no longer receive emails after working hours, or managerial seminars, aiming to empower employees to not feel pressured to answer work related requests outside of working hours.
Therefore, the right to disconnect needs to be understood as an obligation which is shared by both the employer, who needs to ensure that employees are afforded the right to disconnect, and by the employees, who must make use of the right they are afforded.
New obligations for employees: the “must dos”
This new right appears in two different sections of the French labor code.
It appears first as a subject that must be discussed by employers on a yearly basis with the employee unions elected in the company during the “Négociation Annuelle Obligatoire” (Yearly Mandatory Negotiation).
The law specifies that the employer and the unions must discuss, in good faith, the conditions under which this new right will be afforded to employees and what measures will be taken to ensure that it is complied with. If both parties cannot find an agreement, employers must implement a unilateral plan aiming to train and sensitize employees to “reasonable use of digital tools”.
The new law does not provide for a specific sanction if no agreement is reached and no plan is implemented. However, in cases where employees make claims for unpaid and unreported overtime related to their working after hours through digital tools, judges will be more likely to penalize an employer who has failed to implement such a plan.
The right to disconnect appears second in the section related to employees working under a fixed number of days scheme (managers and above types) as they are the employees most likely to suffer from “hyper-connectivity”.
Under the new law, the fixed number of days scheme must now specify the conditions under which employees will be entitled to disconnect from their work. Failure to do would render the scheme null, and such employees would therefore be considered to work only 35 hours per week, with overtime pay for each additional hour worked.
Some food for thought on “nice-to-haves” best practices
There is no “one shoe fits all” solution regarding this new obligation/right. The manner in which employees are entitled to benefit from their right to disconnect will depend on several factors, such as the type, size and international exposure of the company. Good practices on this matter would therefore require a two stepped approach.
First companies should run an internal diagnostic on the following issues that should be treated by a potential plan:
- Does the company already have a policy on the use of digital tools? Has a plan already been implemented?
- How are employees equipped (e.g. smartphone and / or laptop, Bring Your Own Device (BYOD))?
- Do employees have a large autonomy in working time? Do they use their holidays or do they end the year with untaken holidays?
- Does the company have special data protection needs (e.g. confidentiality, industrial secrets)?
- Can the company cease all activity / electronic communications over a certain period of time? Are employees required to be constantly reachable?
- Is the company’s activity oriented towards countries whose time zone is very different?
Then, based on this initial diagnostic, employers may consider three approaches.
- Radical and unilateral actions,: closing of email servers, blocking of emails during certain periods (nights and weekends for example);
- Driving policy: internal regulations, policies enacted in the company authorizing employees not to respond to solicitations during certain periods
- Culture change actions: trainings of employees, managers, good practices (e.g. avoid replying to all the recipients of an e-mail when it is not obligatory, affix a specific mention in the subject of the mail when the Response may be postponed).
Conclusion
Although the right to disconnect seems like a strange topic for legislation, all the media has taken interest in this and appear to agree that it is a novel and very important measure to protect employees.
This right to disconnect must be viewed as a means to lead a necessary dialogue on digital tools as they continue to invade employees’ lives and blur the line between working time and non-working time.
Non-compliance with this legislation exposes companies to wage and hour risks, in particular with regards to overtime, but also to health and safety risks, in particular in cases where employees can prove that due to excessive connectivity they suffer from undue stress and emotional complications.
As usual, French labor and employment law continues to be at the heart of French legislative activity with numerous changes in the past months. Yet one topic has attracted the most media attention and has been one of the most recent trending subjects: the “right to disconnect” from mobile devices outside of working hours.
This new “right to disconnect” is applicable since January 1, 2017. Essentially, it requires employers and employee unions to engage in collective bargaining to negotiate the conditions under which employees will be entitled to disconnect from their mobile devices outside of working.
The main purpose of this law is to ensure that working hours are complied with, and to protect the health and safety of employees, by allowing them to actually rest in between work days, on weekends and during holidays.
What is the right to disconnect?
One of the main issues brought by this law is that it does not specify what needs to be understood as the right to “disconnect”. When asked to provide a specific definition the Government explained that the right to disconnect was, for instance, “the right for an employee to not answer emails outside of working hours”, and that in fact, this new right would “allow companies to manage this issue and adapt to new and more modern way of working”.
French legal doctrine has defined this right as the right for employees “to not always be reachable, for uninterrupted periods of time, for professional reasons. This right entitles employees to be temporarily disconnected from the digital tools that allow them to be reachable for professional reasons (e.g. smartphones, emails, internet)”
To ensure that this new right is complied with, employers will have to implement measures allowing employees to be disconnected outside of working hours. Such measures could include technical limitations, such as smartphones that no longer receive emails after working hours, or managerial seminars, aiming to empower employees to not feel pressured to answer work related requests outside of working hours.
Therefore, the right to disconnect needs to be understood as an obligation which is shared by both the employer, who needs to ensure that employees are afforded the right to disconnect, and by the employees, who must make use of the right they are afforded.
New obligations for employees: the “must dos”
This new right appears in two different sections of the French labor code.
It appears first as a subject that must be discussed by employers on a yearly basis with the employee unions elected in the company during the “Négociation Annuelle Obligatoire” (Yearly Mandatory Negotiation).
The law specifies that the employer and the unions must discuss, in good faith, the conditions under which this new right will be afforded to employees and what measures will be taken to ensure that it is complied with. If both parties cannot find an agreement, employers must implement a unilateral plan aiming to train and sensitize employees to “reasonable use of digital tools”.
The new law does not provide for a specific sanction if no agreement is reached and no plan is implemented. However, in cases where employees make claims for unpaid and unreported overtime related to their working after hours through digital tools, judges will be more likely to penalize an employer who has failed to implement such a plan.
The right to disconnect appears second in the section related to employees working under a fixed number of days scheme (managers and above types) as they are the employees most likely to suffer from “hyper-connectivity”.
Under the new law, the fixed number of days scheme must now specify the conditions under which employees will be entitled to disconnect from their work. Failure to do would render the scheme null, and such employees would therefore be considered to work only 35 hours per week, with overtime pay for each additional hour worked.
Some food for thought on “nice-to-haves” best practices
There is no “one shoe fits all” solution regarding this new obligation/right. The manner in which employees are entitled to benefit from their right to disconnect will depend on several factors, such as the type, size and international exposure of the company. Good practices on this matter would therefore require a two stepped approach.
First companies should run an internal diagnostic on the following issues that should be treated by a potential plan:
- Does the company already have a policy on the use of digital tools? Has a plan already been implemented?
- How are employees equipped (e.g. smartphone and / or laptop, Bring Your Own Device (BYOD))?
- Do employees have a large autonomy in working time? Do they use their holidays or do they end the year with untaken holidays?
- Does the company have special data protection needs (e.g. confidentiality, industrial secrets)?
- Can the company cease all activity / electronic communications over a certain period of time? Are employees required to be constantly reachable?
- Is the company’s activity oriented towards countries whose time zone is very different?
Then, based on this initial diagnostic, employers may consider three approaches.
- Radical and unilateral actions,: closing of email servers, blocking of emails during certain periods (nights and weekends for example);
- Driving policy: internal regulations, policies enacted in the company authorizing employees not to respond to solicitations during certain periods
- Culture change actions: trainings of employees, managers, good practices (e.g. avoid replying to all the recipients of an e-mail when it is not obligatory, affix a specific mention in the subject of the mail when the Response may be postponed).
Conclusion
Although the right to disconnect seems like a strange topic for legislation, all the media has taken interest in this and appear to agree that it is a novel and very important measure to protect employees.
This right to disconnect must be viewed as a means to lead a necessary dialogue on digital tools as they continue to invade employees’ lives and blur the line between working time and non-working time.
Non-compliance with this legislation exposes companies to wage and hour risks, in particular with regards to overtime, but also to health and safety risks, in particular in cases where employees can prove that due to excessive connectivity they suffer from undue stress and emotional complications.
Ireland - Recent Developments in Whistleblowing Law
BY DEIRDRE LYNCH, SENIOR ASSOCIATE, BYRNEWALLACE, DUBLIN, IRELAND
“The world is a dangerous place, not because of those who do evil, but
because of those who look on and do nothing.” - Albert Einstein
Ireland recently introduced significant statutory protections for workers who make protected disclosures in relation to perceived wrongdoing in the workplace. One of the protections available is protection from penalisation for making a protected disclosure. The concept of penalisation is defined very broadly in Irish law as “any act or omission that affects a worker to the worker’s detriment” and includes suspension, lay-off, dismissal, loss of opportunity for promotion, intimidation, harassment and a range of other forms of unfair treatment. A complaint of penalisation may be made to the relevant adjudicatory body within six months of the relevant act. A maximum of five years' gross remuneration may be awarded as compensation for penalisation, with a potential reduction of up to 25% where an investigation of a relevant wrongdoing was not the sole or main motivation for making the disclosure.
An interesting decision was delivered by the Irish Labour Court late last year in the case of Aidan & Henrietta McGrath Partnership v Anna Monaghan. The case illustrates the circumstances in which an employer may be found to have penalised an employee for making a protected disclosure.
Here, the complainant, Anna Monaghan, was employed by a nursing home as a care assistant from 17 August 2010 to 5 December 2014. Her daughter also worked as a care assistant in the same nursing home. Ms Monaghan claimed that she made a “protected disclosure”, as defined, in the legislation and that she was penalised for doing so, in the form of two periods of suspension, one paid and one unpaid.
By way of factual background, on 30 March 2014, Ms Monaghan raised a number of issues with the matron of the nursing home, including difficulties with a named supervisor regarding her daughter’s working hours and concerns regarding the treatment of patients. She requested a meeting of care staff to discuss these matters which the matron agreed to. However, before this meeting could take place, Ms Monaghan organised a meeting of care assistants, without the matron’s knowledge, during which Ms Monaghan notified her colleagues that she had disclosed her concerns to the relevant regulatory body.
In April 2014 Ms Monaghan was called to an appraisal meeting during which the issues she had raised with the matron were discussed as well as her concerns regarding the care of residents and alleged abuse by a supervisor. Following this meeting, she was asked to commit her concerns to writing, which she did by letter dated 5 May 2016. In accordance with the required protocol for receipt of complaints, the nursing home informed the regulator of the concerns raised and of the fact that they were being investigated. The named supervisor who was alleged to have abused patients was suspended.
Following the investigation, a draft report issued which held that the allegations were unfounded. It was also noted that several staff members had alleged that Ms Monaghan was motivated by malice in making her complaints. The draft report stated that Ms Monaghan should be suspended and that the allegations of malice should be dealt with in a separate investigation. Ms Monaghan was suspended with pay.
In August 2014, all employees of the nursing home were requested to complete regulatory forms. Ms Monaghan failed to complete the necessary forms and she was issued with two reminder letters. By November 2014, Ms Monaghan had still not completed the forms and as such, was placed on suspension pending the outcome of a disciplinary meeting to be held on 14 November. It is not clear from the judgment what unfolded after this, but the judgment does state that Ms Monaghan’s employment ended on 5 December 2014.
Ms Monaghan claimed that she was subjected to penalisation in the form of intimidation, bullying, alienation, harassment, victimisation and suspension following the making of protected disclosures.
The Labour Court was satisfied that the Complainant made a protected disclosure during the appraisal meeting in April 2014 when she raised her concerns in relation to patient safety. The Court further noted that under Irish legislation the motivation for making a disclosure is irrelevant to whether the disclosure is a protected disclosure.
In view of the paucity of decided case law on what constitutes penalisation in this area, the Court considered case law from health and safety legislation which protects individuals from being penalised for raising health and safety concerns. The Court noted that in order to make out a complaint of penalisation it is necessary for a complainant to establish that the penalisation of which he or she complains was imposed “for” having made a protected disclosure. “Thus the penalisation must have been incurred because of, or in retaliation for, the making of a protected disclosure. This suggests that where there is more than one causal factor in the chain of events leading to the penalisation complained of the making of the protected disclosure must be an operative cause in the sense that “but for” the Complainant having made the protected disclosure he or she would not have suffered the penalisation. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the action in question.”
The Court held that there was insufficient evidence to support Ms Monaghan’s complaints that she was intimidated, bullied, alienated, harassed or victimised for making a protected disclosure. The Court then reviewed the two periods of suspension to assess whether penalisation had taken place.
In respect of the first period of suspension, the Court had to consider whether or not Ms Monaghan would have been placed on suspension then had it not been for the protected disclosure made to her employer in April. It looked at the motives which influenced the employer in suspending the employee at that time and found that the suspension was influenced by the complaints made by the employee prior to and in the course of the investigation. It was also influenced by what it termed the “undue haste which the suspension was effected without giving the Complainant an opportunity to comment on the report (having been invited to do so) and before the final report was issued”.
In relation to the second period of suspension, the Court found that this was wholly unrelated to the protected disclosure made and that in suspending her, the employer was not motivated by Ms Monaghan having made the protected disclosure. Rather this suspension was directly related to her continued failure to furnish the employer with various signed forms.
The Court awarded Ms. Monaghan €17,500 compensation as a result of the detriment suffered for having made a protected disclosure.
This case serves to remind employers that the workplace is a “dangerous place” at times; however, that said, it also makes clear that employees who blow the whistle on wrongdoing do not thereby immunise themselves from being subjected to investigation/disciplinary action for reasons unrelated to the making of the disclosure, albeit that it will be essential for employers to exercise caution in relation to any such action to reduce the risk of a successful claim of penalisation.
“The world is a dangerous place, not because of those who do evil, but
because of those who look on and do nothing.” - Albert Einstein
Ireland recently introduced significant statutory protections for workers who make protected disclosures in relation to perceived wrongdoing in the workplace. One of the protections available is protection from penalisation for making a protected disclosure. The concept of penalisation is defined very broadly in Irish law as “any act or omission that affects a worker to the worker’s detriment” and includes suspension, lay-off, dismissal, loss of opportunity for promotion, intimidation, harassment and a range of other forms of unfair treatment. A complaint of penalisation may be made to the relevant adjudicatory body within six months of the relevant act. A maximum of five years' gross remuneration may be awarded as compensation for penalisation, with a potential reduction of up to 25% where an investigation of a relevant wrongdoing was not the sole or main motivation for making the disclosure.
An interesting decision was delivered by the Irish Labour Court late last year in the case of Aidan & Henrietta McGrath Partnership v Anna Monaghan. The case illustrates the circumstances in which an employer may be found to have penalised an employee for making a protected disclosure.
Here, the complainant, Anna Monaghan, was employed by a nursing home as a care assistant from 17 August 2010 to 5 December 2014. Her daughter also worked as a care assistant in the same nursing home. Ms Monaghan claimed that she made a “protected disclosure”, as defined, in the legislation and that she was penalised for doing so, in the form of two periods of suspension, one paid and one unpaid.
By way of factual background, on 30 March 2014, Ms Monaghan raised a number of issues with the matron of the nursing home, including difficulties with a named supervisor regarding her daughter’s working hours and concerns regarding the treatment of patients. She requested a meeting of care staff to discuss these matters which the matron agreed to. However, before this meeting could take place, Ms Monaghan organised a meeting of care assistants, without the matron’s knowledge, during which Ms Monaghan notified her colleagues that she had disclosed her concerns to the relevant regulatory body.
In April 2014 Ms Monaghan was called to an appraisal meeting during which the issues she had raised with the matron were discussed as well as her concerns regarding the care of residents and alleged abuse by a supervisor. Following this meeting, she was asked to commit her concerns to writing, which she did by letter dated 5 May 2016. In accordance with the required protocol for receipt of complaints, the nursing home informed the regulator of the concerns raised and of the fact that they were being investigated. The named supervisor who was alleged to have abused patients was suspended.
Following the investigation, a draft report issued which held that the allegations were unfounded. It was also noted that several staff members had alleged that Ms Monaghan was motivated by malice in making her complaints. The draft report stated that Ms Monaghan should be suspended and that the allegations of malice should be dealt with in a separate investigation. Ms Monaghan was suspended with pay.
In August 2014, all employees of the nursing home were requested to complete regulatory forms. Ms Monaghan failed to complete the necessary forms and she was issued with two reminder letters. By November 2014, Ms Monaghan had still not completed the forms and as such, was placed on suspension pending the outcome of a disciplinary meeting to be held on 14 November. It is not clear from the judgment what unfolded after this, but the judgment does state that Ms Monaghan’s employment ended on 5 December 2014.
Ms Monaghan claimed that she was subjected to penalisation in the form of intimidation, bullying, alienation, harassment, victimisation and suspension following the making of protected disclosures.
The Labour Court was satisfied that the Complainant made a protected disclosure during the appraisal meeting in April 2014 when she raised her concerns in relation to patient safety. The Court further noted that under Irish legislation the motivation for making a disclosure is irrelevant to whether the disclosure is a protected disclosure.
In view of the paucity of decided case law on what constitutes penalisation in this area, the Court considered case law from health and safety legislation which protects individuals from being penalised for raising health and safety concerns. The Court noted that in order to make out a complaint of penalisation it is necessary for a complainant to establish that the penalisation of which he or she complains was imposed “for” having made a protected disclosure. “Thus the penalisation must have been incurred because of, or in retaliation for, the making of a protected disclosure. This suggests that where there is more than one causal factor in the chain of events leading to the penalisation complained of the making of the protected disclosure must be an operative cause in the sense that “but for” the Complainant having made the protected disclosure he or she would not have suffered the penalisation. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the action in question.”
The Court held that there was insufficient evidence to support Ms Monaghan’s complaints that she was intimidated, bullied, alienated, harassed or victimised for making a protected disclosure. The Court then reviewed the two periods of suspension to assess whether penalisation had taken place.
In respect of the first period of suspension, the Court had to consider whether or not Ms Monaghan would have been placed on suspension then had it not been for the protected disclosure made to her employer in April. It looked at the motives which influenced the employer in suspending the employee at that time and found that the suspension was influenced by the complaints made by the employee prior to and in the course of the investigation. It was also influenced by what it termed the “undue haste which the suspension was effected without giving the Complainant an opportunity to comment on the report (having been invited to do so) and before the final report was issued”.
In relation to the second period of suspension, the Court found that this was wholly unrelated to the protected disclosure made and that in suspending her, the employer was not motivated by Ms Monaghan having made the protected disclosure. Rather this suspension was directly related to her continued failure to furnish the employer with various signed forms.
The Court awarded Ms. Monaghan €17,500 compensation as a result of the detriment suffered for having made a protected disclosure.
This case serves to remind employers that the workplace is a “dangerous place” at times; however, that said, it also makes clear that employees who blow the whistle on wrongdoing do not thereby immunise themselves from being subjected to investigation/disciplinary action for reasons unrelated to the making of the disclosure, albeit that it will be essential for employers to exercise caution in relation to any such action to reduce the risk of a successful claim of penalisation.
Netherlands - Independent Contractor Status
By Dennis G. Veldhuizen, CLINT Lawyers & Mediators, Amsterdam, the Netherlands
DBA Act
On 1 May 2016 the Act on Deregulation Assessment Labour Relationships (in Dutch the ‘Wet deregulering beoordeling arbeidsrelaties’, the ´DBA Act´) came into force. This also meant the end of the good-old VAR declaration. The VAR-declaration (which was issued by the Dutch Tax Authorities) indemnified companies that hired self employed freelancers from any potential claims by the Dutch Tax Authorities for wages and social security premiums, should it (later) appear the relationship factually qualified as employment agreement. Before 1 May 2016, if a VAR-declaration had been issued and the relationship nonetheless qualified as employment agreement, no additional tax assessment would be imposed on the company in relation to that freelancer.
Independent contractor?
Whether or not the relationship between the company and the freelancer qualifies as employment agreement depends mainly on whether the following three factors are present: (i) labour, (ii) wages and (iii) authority:
• An employee should personally perform activities and substitution is only possible with the permission of the employer, whereas the freelancer does not have to personally perform labour;
• Employees receives wages for the activities performed, whereas the freelancer receives a (management) fee;
• The contact with a freelancer is aimed at bringing about a result and the contractor bears the responsibility in this respect;
• A relationship of authority exists between the employee and employer, whereas a client has a limited right to give instructions to the freelancer. In fact only to the extent it regards the execution of the freelancer’s assignment.
DBA Act in practice
The purpose of the DBA Act is to minimize the chances of ‘pseudo’ independent contractorship and as such to provide better protection to the self-employed. The DBA Act would also increase legal security, as the differences between employees and independent contractors are now much more defined.
Clients and freelancers have to make use of three types of so-called ‘model contracts’ prior to engagement. These have been drawn up and issued by the Dutch Tax Authorities:
• A general model contract: this model contract covers most business relationship where employment is not involved;
• A sector or profession specific model contract: meant for everyone working according to certain sectoral or professional standards or conditions;
• An individual model contract: a specific model contract that can be used by everyone working in the same sector or profession for which that model contract was drawn up specifically.
Once the model contract is approved by the Dutch Tax Authorities, both parties are assured that there is no requirement to withhold taxes by the client. However, if the Dutch Tax Authorities judge at a later stage that the relation is one of employment rather than independent contracting, both client and contractor will be held liable to withhold payroll taxes and social security contributions with retroactive effect.
The Dutch senate introduced a transitional period of one year, until 1 May 2017. During the transitional period, the Dutch Tax Authorities will not actively enforce the DBA Act, but will mainly focus on providing information.
Uncertainty
Already before its entry date, the DBA Act led to uncertainty for both self employed contractors and their clients. Many self-employed became reluctant to take on new engagements and some of them are even considering ceasing their activities because of the uncertainty the DBA Act has caused. The same applies to clients: they are also reluctant to hire a self-employed contractor because of the risk of corrective tax assessments.
The view on the manner in which the tax authorities are handling this is not so positive either: according to the media there is substantial delay in the procedure to approve the model contracts: it takes the tax authorities eleven weeks instead of the promised six weeks to assess whether a model contract meets the fiscal requirements. In addition, it seems that the tax authorities are fairly critical in their judgments: by 1 August 2016 about 370 model contracts had been approved and over 1,000 model contracts had been declined. Self-employed contractors and clients do not know on which grounds the tax authorities have declined the model contracts, since it often lacks clear justification.
Last summer, the giant Dutch temp agency Randstad performed in-depth research on the topic and concluded that under the DBA Act a labour relationship is more often qualified as an employment relationship than it did under the VAR. One of the main reasons for this is the fact that in the model contract a detailed description of the work activities is required: this was not the case under the VAR and as such leads to a more strict qualification. Additionally, the contracts of self-employed contractors with one primary client will in most cases be qualified as having an employment relationship.
On 19 September 2016, the Dutch State Secretary of Finance, Mr. Wiebes, confirmed that the ‘obvious’ independent contractor should not worry. The abolition of the VAR-declaration should not have any consequences for this group. Mr. Wiebes confirmed that it is not the intention of the Dutch Tax Authorities to punish well meaning entrepreneurs who just fall outside the scope of law. However, entrepreneurs who are considered to abuse the system would become subject to tax assessments and risk high penalties.
Will the DBA Act survive?
The mass criticism of the DBA Act did not stop. On the recommendation of a special committee (the Boot Committee), which performed a study of the consequences of the act, the die was finally cast on 18 November 2016: Mr Wiebes decided to postpone the implementation of the DBA Act until 1 January 2018.
This means that in principle, the Dutch Tax Authorities will not enforce the DBA Act during the extended implementation period, provided that the client or its contractor in question is deemed to be ‘well-intentioned’. A party is deemed to be well-intentioned if it is familiar with the DBA Act and in any event attempts to operate in accordance with the model contracts issued by the Dutch Tax Authorities. After January 2018 the Dutch Tax Authorities will furthermore issue warnings before imposing additional tax assessments and fines for breach of the act.
The situation is different for ‘ill-intentioned parties’. As from 1 May 2017, the original end date of the implementation period of the DBA Act, the Dutch Tax Authorities will indeed take enforcement measures against such parties. It may furthermore do so retroactively to 1 May 2016. A client or contractor is ill intentioned if he intentionally creates sham arrangements and benefits or intends to benefit financially from such arrangements.
One thing is clear: it is important to be classified as ‘well-intentioned’ by the Dutch Tax Authorities. State Secretary Wiebes confirmed on 24 November 2016 that all the ill-intentioned parties are ‘old known friends’ of the Dutch Tax Authorities. Mr. Wiebes also stated that a very small number is involved, of definitely no more than ten. Those ill-intentioned parties primarily operate at the lower end of the market. That significantly reduces the risk for other parties of being classified as ill-intentioned, even though a wait-and-see approach is ill-advised.
Next few months
The Dutch government itself obviously still has a great deal of work to do in the coming period. On the recommendation of the Boot Committee, the terms ’employer-employee relationship’ and ‘substitution allowed’ will be modernised. State Secretary Wiebes has furthermore clarified that the implementation period will not end until those terms have been redefined, even if that takes longer than January 2018. The system of model contracts will furthermore be clarified or may even be cancelled.
Practice
So while the pressure is off the self-employment sector to some extent, it remains unclear how the DBA Act will ultimately be applied as of 2018. For principals, it is important to continue to use (approved) model contracts in practice. A wait-and-see approach is definitely not an option. The VAR has been abolished and will not be reintroduced.
DBA Act
On 1 May 2016 the Act on Deregulation Assessment Labour Relationships (in Dutch the ‘Wet deregulering beoordeling arbeidsrelaties’, the ´DBA Act´) came into force. This also meant the end of the good-old VAR declaration. The VAR-declaration (which was issued by the Dutch Tax Authorities) indemnified companies that hired self employed freelancers from any potential claims by the Dutch Tax Authorities for wages and social security premiums, should it (later) appear the relationship factually qualified as employment agreement. Before 1 May 2016, if a VAR-declaration had been issued and the relationship nonetheless qualified as employment agreement, no additional tax assessment would be imposed on the company in relation to that freelancer.
Independent contractor?
Whether or not the relationship between the company and the freelancer qualifies as employment agreement depends mainly on whether the following three factors are present: (i) labour, (ii) wages and (iii) authority:
• An employee should personally perform activities and substitution is only possible with the permission of the employer, whereas the freelancer does not have to personally perform labour;
• Employees receives wages for the activities performed, whereas the freelancer receives a (management) fee;
• The contact with a freelancer is aimed at bringing about a result and the contractor bears the responsibility in this respect;
• A relationship of authority exists between the employee and employer, whereas a client has a limited right to give instructions to the freelancer. In fact only to the extent it regards the execution of the freelancer’s assignment.
DBA Act in practice
The purpose of the DBA Act is to minimize the chances of ‘pseudo’ independent contractorship and as such to provide better protection to the self-employed. The DBA Act would also increase legal security, as the differences between employees and independent contractors are now much more defined.
Clients and freelancers have to make use of three types of so-called ‘model contracts’ prior to engagement. These have been drawn up and issued by the Dutch Tax Authorities:
• A general model contract: this model contract covers most business relationship where employment is not involved;
• A sector or profession specific model contract: meant for everyone working according to certain sectoral or professional standards or conditions;
• An individual model contract: a specific model contract that can be used by everyone working in the same sector or profession for which that model contract was drawn up specifically.
Once the model contract is approved by the Dutch Tax Authorities, both parties are assured that there is no requirement to withhold taxes by the client. However, if the Dutch Tax Authorities judge at a later stage that the relation is one of employment rather than independent contracting, both client and contractor will be held liable to withhold payroll taxes and social security contributions with retroactive effect.
The Dutch senate introduced a transitional period of one year, until 1 May 2017. During the transitional period, the Dutch Tax Authorities will not actively enforce the DBA Act, but will mainly focus on providing information.
Uncertainty
Already before its entry date, the DBA Act led to uncertainty for both self employed contractors and their clients. Many self-employed became reluctant to take on new engagements and some of them are even considering ceasing their activities because of the uncertainty the DBA Act has caused. The same applies to clients: they are also reluctant to hire a self-employed contractor because of the risk of corrective tax assessments.
The view on the manner in which the tax authorities are handling this is not so positive either: according to the media there is substantial delay in the procedure to approve the model contracts: it takes the tax authorities eleven weeks instead of the promised six weeks to assess whether a model contract meets the fiscal requirements. In addition, it seems that the tax authorities are fairly critical in their judgments: by 1 August 2016 about 370 model contracts had been approved and over 1,000 model contracts had been declined. Self-employed contractors and clients do not know on which grounds the tax authorities have declined the model contracts, since it often lacks clear justification.
Last summer, the giant Dutch temp agency Randstad performed in-depth research on the topic and concluded that under the DBA Act a labour relationship is more often qualified as an employment relationship than it did under the VAR. One of the main reasons for this is the fact that in the model contract a detailed description of the work activities is required: this was not the case under the VAR and as such leads to a more strict qualification. Additionally, the contracts of self-employed contractors with one primary client will in most cases be qualified as having an employment relationship.
On 19 September 2016, the Dutch State Secretary of Finance, Mr. Wiebes, confirmed that the ‘obvious’ independent contractor should not worry. The abolition of the VAR-declaration should not have any consequences for this group. Mr. Wiebes confirmed that it is not the intention of the Dutch Tax Authorities to punish well meaning entrepreneurs who just fall outside the scope of law. However, entrepreneurs who are considered to abuse the system would become subject to tax assessments and risk high penalties.
Will the DBA Act survive?
The mass criticism of the DBA Act did not stop. On the recommendation of a special committee (the Boot Committee), which performed a study of the consequences of the act, the die was finally cast on 18 November 2016: Mr Wiebes decided to postpone the implementation of the DBA Act until 1 January 2018.
This means that in principle, the Dutch Tax Authorities will not enforce the DBA Act during the extended implementation period, provided that the client or its contractor in question is deemed to be ‘well-intentioned’. A party is deemed to be well-intentioned if it is familiar with the DBA Act and in any event attempts to operate in accordance with the model contracts issued by the Dutch Tax Authorities. After January 2018 the Dutch Tax Authorities will furthermore issue warnings before imposing additional tax assessments and fines for breach of the act.
The situation is different for ‘ill-intentioned parties’. As from 1 May 2017, the original end date of the implementation period of the DBA Act, the Dutch Tax Authorities will indeed take enforcement measures against such parties. It may furthermore do so retroactively to 1 May 2016. A client or contractor is ill intentioned if he intentionally creates sham arrangements and benefits or intends to benefit financially from such arrangements.
One thing is clear: it is important to be classified as ‘well-intentioned’ by the Dutch Tax Authorities. State Secretary Wiebes confirmed on 24 November 2016 that all the ill-intentioned parties are ‘old known friends’ of the Dutch Tax Authorities. Mr. Wiebes also stated that a very small number is involved, of definitely no more than ten. Those ill-intentioned parties primarily operate at the lower end of the market. That significantly reduces the risk for other parties of being classified as ill-intentioned, even though a wait-and-see approach is ill-advised.
Next few months
The Dutch government itself obviously still has a great deal of work to do in the coming period. On the recommendation of the Boot Committee, the terms ’employer-employee relationship’ and ‘substitution allowed’ will be modernised. State Secretary Wiebes has furthermore clarified that the implementation period will not end until those terms have been redefined, even if that takes longer than January 2018. The system of model contracts will furthermore be clarified or may even be cancelled.
Practice
So while the pressure is off the self-employment sector to some extent, it remains unclear how the DBA Act will ultimately be applied as of 2018. For principals, it is important to continue to use (approved) model contracts in practice. A wait-and-see approach is definitely not an option. The VAR has been abolished and will not be reintroduced.
UAE - The Importance of Employment Contracts
By Jack Fletcher, Associate, Rebecca Ford, Partner and Sara Khoja, Partner, Clyde & Co LLP
HR practitioners may be contemplating their "New Year To Do List". The start of the year is a good time to look at company contracts and policies and consider whether these need updating.
Whilst many employers in the UAE will be required to issue standard form contracts (either those by the Ministry of Human Resources and Emiratization, or by a free zone authority), it remains common for companies to also require their staff to sign company-issued contracts.
In this article we set out five key areas which employers in the UAE may wish to address in their company contracts to supplement any standard-form contract.
1 Duties, Obligations and Standards of Conduct and Performance
It is significantly harder to deal with conduct or performance issues if the employee can legitimately argue that they were never informed what was expected of them. In particular, in the event of a dispute, the UAE courts will take into account written terms. Employers are therefore encouraged to expressly set out an employee's duties and obligations in the contract in full.
2 Confidentiality
The duty of confidentiality features in a number of pieces of legislation relevant to the employment relationship, including the Labour Law, the Civil Code and the Penal Code. However, it is still important to highlight to the employee at the outset (i.e. in the contract) what exactly the employer considers to amount to confidential information.
3 Bonus/Commission Arrangements
Many disputes arise out of bonus or commission schemes that are not supported by clear contractual wording. Rules around how/when an employee qualifies for such payments, and in what circumstances any such payments with be withheld or even clawed back, are vital.
4 Termination
Most contractual disputes in an employment context arise following its termination. The contract therefore needs to be clear about what is and what isn't payable following its termination (or after notice to terminate employment has been given). This is particularly so in the UAE where employees often enjoy a range of benefits e.g. housing or flight allowances.
5 Post termination Restrictions
Under Article 127 of the Labour Law, restrictive covenants can be imposed on an employee if they are "limited with respect to the place, time and nature of work to the extent as is necessary to safeguard the lawful interest of business". This means they must be tailored to the specific employee and be reasonable and proportionate, otherwise they will not be enforceable.
HR practitioners may be contemplating their "New Year To Do List". The start of the year is a good time to look at company contracts and policies and consider whether these need updating.
Whilst many employers in the UAE will be required to issue standard form contracts (either those by the Ministry of Human Resources and Emiratization, or by a free zone authority), it remains common for companies to also require their staff to sign company-issued contracts.
In this article we set out five key areas which employers in the UAE may wish to address in their company contracts to supplement any standard-form contract.
1 Duties, Obligations and Standards of Conduct and Performance
It is significantly harder to deal with conduct or performance issues if the employee can legitimately argue that they were never informed what was expected of them. In particular, in the event of a dispute, the UAE courts will take into account written terms. Employers are therefore encouraged to expressly set out an employee's duties and obligations in the contract in full.
2 Confidentiality
The duty of confidentiality features in a number of pieces of legislation relevant to the employment relationship, including the Labour Law, the Civil Code and the Penal Code. However, it is still important to highlight to the employee at the outset (i.e. in the contract) what exactly the employer considers to amount to confidential information.
3 Bonus/Commission Arrangements
Many disputes arise out of bonus or commission schemes that are not supported by clear contractual wording. Rules around how/when an employee qualifies for such payments, and in what circumstances any such payments with be withheld or even clawed back, are vital.
4 Termination
Most contractual disputes in an employment context arise following its termination. The contract therefore needs to be clear about what is and what isn't payable following its termination (or after notice to terminate employment has been given). This is particularly so in the UAE where employees often enjoy a range of benefits e.g. housing or flight allowances.
5 Post termination Restrictions
Under Article 127 of the Labour Law, restrictive covenants can be imposed on an employee if they are "limited with respect to the place, time and nature of work to the extent as is necessary to safeguard the lawful interest of business". This means they must be tailored to the specific employee and be reasonable and proportionate, otherwise they will not be enforceable.
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