France: Gender Pay Gap

A recent law (law n°2018-771 dated 5 September 2018) has implemented a new obligation for companies of more than 50 employees to publish each year (through their website or by any means as long as their employees are informed of this) specific indicators relating to any potential pay gap or different treatment between men and women which exist within the company in France, and the measures which will be implemented in order to reduce such gap or differences.

This law provides for different types of indicators to identify the pay gap (e.g., differences in pay, pay rises, promotion statistics, etc.) depending on whether companies have more than 1,000 employees, between 251 and 999 employees, and between 50 and 250 employees.

EU: draft guidelines on GDPR extra-territoriality published

On 23 November 2018, the European Data Protection Board published its draft guidelines on Article 3 of the GDPR, being the provision that sets out the territorial scope of Europe’s data protection legislation.

The GDPR seeks (via Article 3) to extend its reach beyond European borders, making non-EU organisations directly subject to its obligations when processing personal data either:

  • in the context of an establishment of a controller or a processor in the EU; or
  • relating to the offer of goods or services to individuals in the EU; or
  • relating to the monitoring of the behaviour of individuals as far as their behaviour takes place in the EU.

The emphasis highlighted above demonstrates the broad drafting of the legislation and potentially extremely wide application of the GDPR to organisations located outside of the EU. This has left many organisations worldwide in a state of uncertainty as to the fundamental application of this important legislation to their activities. Guidance on Article 3 is therefore long overdue.

The draft guidelines published on 23 November 2018 are open for consultation, with interested parties being given until 18 January 2019 to provide comments. However, even in their current draft state, the guidelines give invaluable insight into the European regulators’ view on interpretation of Article 3 and go some way to clarifying key questions regarding the application of the GDPR.

For further details, see our Data Protection Update here.

France: changes to French Works Councils requirements

As a reminder, following the Macron Reforms of 22 September 2017, all companies with 11 or more employees must put in place a Social and Economic Committee (a “CSE”) by 31 December 2019.

This means that:

  • companies with between 11-49 employees who did not previously have an obligation to have a Works Council must now organise elections; and
  • companies with an existing Works Council must organise elections for a CSE

before 31 December 2019. Continue reading

Recruitment and protection of talent: a boardroom issue for pharma

Our article Recruitment and protection of talent: a boardroom issue for pharma is available on our pharma hub here. Technological advancement is key amongst the forces driving change in the pharmaceutical healthcare sectors, with businesses increasingly partnering with non-traditional players such as tech giants, agile biotech start-ups and insurers. In this article we explore how the industry’s increasing focus on tech, including AI, will give rise to a corresponding need to find innovative solutions to attract, retain and incentivise talent experienced in those areas, given the relatively small and highly mobile pool of potential recruits. We also consider the scope for businesses to protect their valuable knowhow and intellectual property from potential threats from ex-employees. Given the critical importance of talent to the pharma industry, we highlight issues that should be factored into strategic decision-making by the board, influencing choices on collaboration, acquisition and business location.

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

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.

EU: Data Use – Protecting a critical resource

Described by some as the “new oil” for the digital economy, there is no doubt that data are now seen as critical for organisations to succeed. Data are a powerful and lucrative fuel for productivity. If not adequately protected, data are vulnerable to leaks that can cause widespread damage, and their true value is only realised once they have been processed and refined. They are, however, an almost infinite resource when compared with the finite supply of oil.

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France: Obligations in relation to private health insurance

An employer must give to each employee (in French) at the commencement of their employment contract an explanatory note (notice d’information) clarifying their rights to private health insurance for health expenses (additional reimbursement coverage including for medical expenses, hospital expenses, pharmacy costs, dental costs, etc) and life assurance coverage (benefits for death, work incapacity or disability) (Law called “Evin” n°89-1009, 31 December 1989, article 12).

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France: The Loi Travail – Briefing 4

This briefing summarises the Macron reforms in relation to the introduction of a new codified right to make collective terminations by agreement (outside of a social plan).

This is a change from the current situation, permitted by case law, where an employer can ask for volunteers for redundancy, but only within the scope of voluntary redundancy plan (plan de departs volontaires), which generally accompanies a social plan.

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