Is there a role for ADR in employment disputes?

The Global Pound Conference (GPC) Series is a unique and ambitious initiative to inform how civil and commercial disputes are resolved in the 21st century, collating views from over 4000 people at 28 conferences spanning 24 countries worldwide. Herbert Smith Freehills teamed up with PwC, IMI (International Mediation Institute) to identify key insights emerging from the extensive voting data, summarised in the ground-breaking Global Pound Conference report. The report identifies a strong preference amongst potential litigants for a flexible dispute resolution approach and a focus on collaboration over representation, with in-house counsel being the most likely agents of change. These themes certainly chime with a recent but growing interest in ADR in the employment sphere: the desire for efficiency in time and cost is acute, given the low value of many employment claims, and the potential for confidential resolution and in some cases a desire to preserve a valued individual relationship makes ADR an obvious option.

In the article here, the Herbert Smith Freehills employment team consider the relevance of the GPC data in the context of employment disputes in the key jurisdictions of Australia, France, Germany, Spain and the UK. We discuss the availability – and pros and cons – of various ADR methods for employment issues in those jurisdictions. One of our London partners, Peter Frost, and Paul Goulding QC of Blackstone Chambers co-chaired various reports on this issue by the Employment Lawyers Association’s Arbitration and ADR Group, and the article also reflects on those findings. Continue reading

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Filed under Employment-related claims- procedure and form, Jurisdiction: Australia, Jurisdiction: France, Jurisdiction: Germany, Jurisdiction: Spain, Jurisdiction: UK

Global Pound Conference report published

The Global Pound Conference series – a unique and ambitious initiative to inform how civil and commercial disputes are resolved in the 21st century – brought together over 4000 dispute resolution stakeholders, at 28 conferences spanning 24 countries worldwide. Continue reading

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Australia: What employers need to know about upcoming changes to long service leave in Victoria

Victoria introduces new Long Service Leave Act 2018 (Act)

In our previous post here, we discussed the proposed changes to existing long service leave entitlements for Victorian employees.

Since then, minor amendments to the Bill were introduced and on 8 May 2018 the Victorian Parliament passed the Long Service Leave Bill 2017 (Vic). The Bill received Royal Assent on 15 May 2018 and the Act will commence by 1 November 2018. Continue reading

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Filed under Jurisdiction: Australia, Terms of employment contracts, Working hours (including holiday, sick leave, overtime, rest breaks), Workplace flexibility and family-friendly rights

Australia: Key employment tax changes announced in the Federal Budget

Greenwoods + Herbert Smith Freehills have highlighted the above key changes employers should be aware of following the Federal Budget announcement in May 2018. Continue reading

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Filed under Jurisdiction: Australia, Remuneration (including bonus and incentive plans)

Hong Kong: Warning on Potentially Anti-Competitive Employment Practices

The Hong Kong Competition Commission (the “Commission“) recently released an advisory bulletin indicating that it has encountered a number of situations where businesses have engaged in employment-related practices which may give rise to competition concerns. Our employment and competition teams consider the key issues identified in the advisory bulletin and suggest strategies which organisations may adopt to minimize the risk of competition concerns arising.

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Filed under Jurisdiction: Asia, Remuneration (including bonus and incentive plans)

Australia: Latest Data on Enterprise Bargaining Wages Trends – December 2017 quarter

The ‘Trends in Federal Enterprise Bargaining’ report for October-December 2017 was released by the Department of Jobs and Small Business in the first week of May 2018.

If you have enterprise agreement negotiations coming up in 2018, this data may be useful for benchmarking.

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Filed under Industrial/workplace relations, collective bargaining, works councils, Jurisdiction: Australia

UK: no direct discrimination in failure to enhance shared parental leave pay to match maternity pay; indirect discrimination claim to be reheard

Many employers who enhance maternity pay have chosen not to mirror this for shared parental leave, pending clarity as to whether this could be direct or indirect sex discrimination. The EAT has now given its first rulings on the issue. In Capita v Ali, the EAT ruled that a failure to mirror enhanced maternity pay was not direct discrimination, at least where the enhancement is only for the first part of maternity leave (at least the first 14 weeks, possibly 26 weeks). In its view, the purpose of this part of maternity leave is to protect the health and wellbeing of the mother during pregnancy and following childbirth, and therefore this leave is not comparable to shared parental leave, the purpose of which is to care for the child. Continue reading

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Filed under Jurisdiction: UK, Workplace culture, diversity and discrimination (including bullying and harassment), Workplace flexibility and family-friendly rights

UK: Supreme Court implies term that notice only starts to run once employee has received and had an opportunity to read it

The Supreme Court has ruled that, in the absence of an express contractual provision to the contrary, notice of dismissal by post starts to run when the letter comes to the attention of the employee and they have either read it or had a reasonable opportunity of doing so.

Employers should ensure that the employment contract specifies when notice is deemed to be given or, if it does not, that they hand over notice in person to the individual if the date on which notice is given is critical. The Supreme Court upheld the Court of Appeal in Newcastle upon Tyne NHS Foundation Trust v Haywood ruling that, where an employment contract was silent on when notice was deemed to be given, notice sent by letter to the individual’s house while she was on holiday did not take effect until her personal receipt of the letter on her return home and she had had a reasonable opportunity to read it. As a result, her termination date was pushed back to after her 50th birthday, entitling her to a much more generous pension.

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Filed under Jurisdiction: UK, Termination of employment

UK: employers should update template termination agreements in light of April tax changes and developments on NDAs

The tax treatment of payments for termination of employment has changed for terminations taking place on or after 6 April (see our earlier blog post here). The effect of the changes is to fully tax as earnings such part of a termination payment as is deemed to be in respect of unworked notice (the post-employment notice pay or “PENP”); the balance can then benefit from the £30,000 tax exemption. PENP is calculated using ‘basic pay’, which includes pay that would have been received had it not been salary sacrificed, but excludes overtime pay, bonuses, commission, allowances, benefits in kind etc. HMRC has now updated its Employment Income Manual to confirm that the calculation must be done even where the employment is terminated without notice by making a contractual payment in lieu; in the rare cases where the statutory PENP exceeds the contractual payment, the excess will be fully taxed. Although not expressly covered by the Manual, the HMRC may well take the view that the PENP calculation should also be applied in cases where compensation is paid following termination without notice for alleged gross misconduct or constructive dismissal.

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Filed under Jurisdiction: UK, Termination of employment, Workplace culture, diversity and discrimination (including bullying and harassment)

EU: Commission publishes draft whistleblowing directive

The European Commission has published a new draft directive to strengthen whistleblower protection across the EU.  The proposal is to provide EU-wide protection for blowing the whistle on breaches of specified types of EU legislation (for example, legislation on financial services, public health and safety, data protection and competition rules), although Member States are encouraged to go beyond this minimum standard and establish comprehensive frameworks for whistleblower protection.

All companies with more than 50 employees or with an annual turnover of over €10 million will have to set up an internal procedure to handle whistleblowers’ reports, including from non-employees such as NEDs, shareholders, the self-employed and volunteers.

The proposal will need agreement from both the European Parliament and the Council; in the meantime, the Commission has invited feedback on the proposal via its Have Your Say website.

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Filed under Jurisdiction: France, Jurisdiction: Germany, Jurisdiction: Spain, Jurisdiction: UK, Whistleblowing