Browse through brief employment and labor law updates from around the globe. Contact a Littler attorney for more information or view our global locations.

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EU Approves Directive on Whistleblowing and Internal Channels for Reporting

New Legislation Enacted

Authors: Juan Bonilla, Partner and Jennifer Bel, Attorney at Law - Cuatrecasas

On October 23, 2019, the European Parliament approved the Directive of the European Parliament and of the Council on the protection of persons reporting on breaches of Union law. The Directive, officially published on November 26, 2019, seeks to harmonize rules on the protection of certain individuals (workers, the self-employed, shareholders, and persons belonging to the management body, volunteers, unpaid trainees, or any person working under the supervision and direction of contractors, subcontractors and suppliers, as well as reporting persons whose work-based relationship is yet to begin) that report unlawful activities or abuse of law regarding the following areas: public procurement, financial services, product safety, transport safety, protection of the environment, nuclear safety, food and feed safety, public health, consumer protection, protection of privacy and personal data, financial interests of the European Union, and breaches relating to the internal market. The Directive aims at providing a common, high level of protection to people who acquire the information they report through their work-related activities and who run the risk of work-related retaliation. It suggests establishing both the internal and external channels and procedures for reporting, conditions and measures for the protection of reporting persons, and penalties applicable to individuals or legal persons that hinder reporting or take retaliatory measures against reporting persons. Internal channels are compulsory for companies employing more than 50 employees. The deadline for transposing the Directive is December 17, 2021.

No Entitlement to Rearrange Holiday in Excess of EU Minimums When Sickness Disrupts Holiday

Precedential Decision by Judiciary or Regulatory Agency

Authors: Darren Isaacs, Partner and Ben Smith, Trainee Solicitor - Littler United Kingdom

On November 19, 2019, the European Court of Justice (CJEU) considered the extent of an employee’s right to rearrange “sickness-affected” holiday (i.e., holiday booked that is disrupted by a period of sickness). The employee in this case was entitled to more paid holiday under a local collective bargaining agreement than the EU mandatory minimum amounts. When a period of illness coincided with a pre-booked period of holiday, the employee was prevented by local law from rearranging all of this “sickness-affected” holiday – she could only rearrange two days of the period of holiday as this was all that remained of her EU-mandated minimum holiday. The CJEU upheld the validity of the local law. This decision reaffirms the CJEU’s consistent approach to holiday, which has seen the court focus only on outlining principles that apply to the EU minimum holiday entitlement and permitting member states to differ in how they treat any additional holiday entitlement offered under local law.

Breadth of Employees’ Right to Freedom of Expression within Context of Breach of Confidentiality

Precedential Decision by Judiciary or Regulatory Agency

Authors: Darren Isaacs, Partner and Lisa Rix, Associate - Littler United Kingdom

On November 5, 2019, the European Court of Human Rights (ECtHR) considered whether the right to freedom of expression under Article 10 of the European Convention on Human Rights extended to opinions that were of interest only to certain professions and were not demonstrably of public interest. This arose in the context of the dismissal of an HR professional for breach of his employer’s confidentiality standards when operating a knowledge-sharing website aimed at other HR professionals. Hungarian courts had found this dismissal to be fair. The ECtHR confirmed that the right to freedom of expression extends to such niche opinions. To assess the fairness of a dismissal, courts must properly balance the employee’s right to freedom of expression against the employer’s rights to protect its business interests. Here, relevant factors to consider were the nature of the opinion expressed, the employee’s motives, the extent of any damage caused to the employer, and the severity of the sanction imposed by the employer. Employers should bear in mind the breadth of the right of freedom of expression and ensure that they consider the above four factors when deciding on sanctions for employees who breach confidentiality.

Covert Surveillance Did Not Violate Privacy Rights, European Court of Human Rights Holds

Precedential Decision by Judiciary or Regulatory Agency

Authors: Darren Isaacs, Partner and Dónall Breen, Associate - Littler United Kingdom

On October 17, 2019, the European Court of Human Rights (ECtHR) considered whether the use of hidden cameras to monitor suspected workplace theft by a number of supermarket cashiers violated their privacy rights under Article 8 of the European Convention on Human Rights. The case was appealed from Spain, where the courts had decided that the monitoring was lawful because it was a proportionate intrusion of privacy (the test to be satisfied under EU law). The ECtHR agreed, concluding that the fact that the employer had not informed the employees in advance was merely one factor, which was not determinative in assessing the proportionality of the act. In view of the employees’ limited expectation of privacy on a shop floor, the limited duration of the monitoring, the small number of people who were allowed to see the footage, and the fact that telling staff about the cameras could have jeopardized the prospect of catching the thieves, the ECtHR agreed with the Spanish courts that the employer had not acted unlawfully.

Launching of the European Labor Authority (ELA)

New Regulation or Official Guidance

Author: Tina Reissmann, Partner - Labora Legal

The free movement for workers is a tenet of the EU and the single market. To ensure compliance and cooperation between Member States regarding the regulation of fair labor mobility and social security systems, the Council and the Parliament has approved the establishment of the European Labor Authority (ELA). The ELA will support Member States, businesses and citizens by facilitating information and services about rights and obligations; facilitate cooperation between Member States in the enforcement of EU law; mediate in cross-border disputes; and support cooperation between Member States in addressing the issue of undeclared work. The goal is to promote fair mobility and social security coordination. With the goals of simplifying the life of national authorities and fighting undeclared work, the ELA is expected to help save costs and raise earnings at the national level.