Across the world, the closure of offices during the pandemic accelerated the expansion and popularity of remote working, making this arrangement an overnight reality for millions. As it becomes clear that working patterns and preferences have changed for good, many jurisdictions have or are putting in place legislation and guidance to manage a more permanent transition to remote or hybrid working arrangements.

During mandatory lockdowns, the decision whether to permit homeworking was largely taken out of employers’ hands. Over the past year, however, many countries have been grappling with the extent to which the employer can control flexible and remote working, and how to deal with the practicalities and costs of these arrangements.

In France, the Court of Cassation (the Supreme Court) ruled that an employee could not unilaterally decide to work offsite – the employer’s consent was required. In Greece, whether or not a remote working arrangement requires the employer’s consent depends on the type of work and arrangement in question, with the newly amended Labour Law defining different categories of remote working. Prior to the pandemic, Greece had one of the lowest levels of remote working in the EU. Now the practicalities of this working arrangement, including the employer’s obligation to subsidise associated costs, are comprehensively addressed in law.

July 2021 saw Spain pass the Remote Work Act, applicable when at least 30% of an individual’s work is done remotely. Under this legislation employers must ensure various matters are covered in a written remote working agreement, provide all necessary materials, and compensate the employee for expenses relating to remote working.

Luxembourg has introduced legislation requiring companies with 150 or more employees to secure agreement between the employer and staff delegation if a company-wide remote working agreement is to be changed. This now forms one of only 8 matters for which such an agreement is needed.

Recognising the dangers of blurring home and work, revised regulations in Norway (in force from July of this year) have strengthened the need for compliance with the terms of homeworking agreements, through the introduction of oversight by the Labor Inspection Authority. Similarly, in Poland, remote working looks set to be permanently incorporated into the Polish Labour Code from August. These changes will govern when remote working is permitted, and what associated costs will be borne by the employer.

In Ireland, flexible and remote working has been a focus for both the courts and legislature. A case heard by the Workplace Relations Commission clarified that, while there is no general right to work from home, employers will be expected to consider remote working requests thoroughly, and to have strong reasonable grounds for refusing to facilitate them. The absence of a legislative framework for handling such a request is set to change, with the publication of the Right to Request Remote Working Bill earlier this year. This will give employees with 6 months’ service the right to request remote working. This is subject to the employer’s agreement, but refusal must be based on one of the reasons listed in the legislation. The Bill has come under a lot of criticism so it’s likely to be significantly amended before it is finalised. Flexible working requests from parents or carers will soon be backed up by law as a result of a new Bill to enable those with caring responsibilities to request flexible working arrangements for a set period of time. This is to implement the EU Work-Life Balance Directive. Separate proposals to allow all employees to make flexible working requests are also in place.

The upcoming changes in Ireland echo new laws introduced earlier this year in Portugal. Now a request for a remote working arrangement made by an employee with a child up to the age of 8 cannot be refused, provided certain conditions are met; a request from someone with children up to the age of 3 cannot be refused in any circumstances. In other cases, a refusal needs to be in writing, stating the reasons. In terms of expenses, it’s again down to the employer to cover the cost of equipment and energy costs, an increasingly significant consideration for households across Europe.

Remote working requests in the Netherlands may also acquire more legal clout. Here the aptly named “Work Where You Want” Bill would amend existing flexible working legislation and require an employer to grant a request for remote working unless it can demonstrate compelling business reasons not to do so.

In the UK there are no specific legislative changes to address hybrid or remote working, and any such requests would need to be accommodated within the existing flexible working regime. Limited reforms to this legislation, including the right to make a flexible working request from day 1 of employment are under consideration. Germany also has yet to introduce any legislative changes, but the Federal Ministry of Labour is drafting a law that would provide for an entitlement to remote working.

In South America, legislation was introduced in Argentina in March 2021 to regulate remote working. Amongst other things, the parties now need a written remote working agreement, and the employer must bear the cost of equipment and expenses. In Brazil, under revised legislation, disabled employees and those with young children should be prioritised for hybrid and remote working arrangements. New legislation is also expected to be approved shortly which will result in collective agreements applicable to the company’s office applying equally to remote workers and provide confirmation that remote workers in the telecommunications industry are not exempt from working hour requirements.

A shift to remote working was a significant change to working culture in Japan. Although not legally enforceable, in March 2021 guidelines were introduced to help promote positive and effective remote working schemes, balancing appropriate management control against positive working patterns for employees.

Finally, remote working literally opens up a world of possibilities. An increasingly common, and also challenging, issue is that of employees who wish to work from “home”, either on a temporary or permanent basis, from an overseas country. One recent example of a potential host country seeking to facilitate this was the introduction of a remote working visa in the UAE in April 2021. This allows foreign nationals to live and work in the UAE, while remaining employed in their home country. Unlike Employment Residence Permits, this does not require local company sponsorship. Meanwhile in Italy, as of April 2022, non-EU nationals who carry out a “highly qualified” job remotely are able to enter the country without a work permit and obtain a residence permit for one year, provided they have adequate health insurance and comply with Italian tax and social security provisions.

Harassment

In the wake of the #MeToo movement, many jurisdictions implemented or improved harassment protections and that trend is still evident across the world. In Denmark the government and social partners have entered into a wide-ranging agreement on sexual harassment to foster change. Consisting of 17 initiatives, it is a mixture of statutory change, new codes and policies, and information gathering. Also in Denmark a significant recent High Court case held an employer liable for failing to prevent an employee’s sexual harassment of a colleague, underlining the importance of employers taking preventative measures.

The Norwegian government is consulting about implementing ILO Convention no. 190 to eliminate violence and harassment in the workplace. It also proposes a new gender equality policy, a duty for employers to have workplace harassment and sexual harassment policies and to clarify the duty on safety representatives to safeguard the working environment of employees.

Greece is also obliging employers to implement policies or provisions on dealing with harassment in the workplace and France has recently seen an extension of the definition of sexual harassment in its Labour Code, requiring companies to update their internal regulations.

Ireland has implemented a new code of practice on sexual harassment. It does not create new obligations but promotes best practice, such as recommending employers adopt and publish policies to ensure harassment-free workplaces and deal effectively with complaints. It encourages training for employees on preventing sexual harassment. It also highlights the position of vulnerable workers who may need additional measures. Ireland has also adopted a new code of practice on preventing workplace bullying. It is more onerous on employers and is more emphatic about recommending mediation to employees as a potential route to resolve issues. Failure to abide by the code is not illegal but can be used in evidence before the Workplace Relations Commission.

The UK government also committed to introducing a new proactive duty on employers to prevent sexual harassment, whilst also considering new laws which would make employers liable if third parties harass their employees and the possibility of extending the time limit in which to bring discrimination claims. No legislation, however, is being introduced to parliament at the moment.

In Texas, a new law means employers must take “immediate and appropriate corrective action” to remedy workplace sexual harassment that they know or should have known about. Employers of all sizes are affected, and individual employees can also be liable.

In September 2021, Australia updated its workplace sexual harassment laws to adopt some (but not all) of the recommendations in the Australian Human Rights Commission’s Respect@Work report. Among other things, the reforms clarify that sexual harassment is prohibited under the Sex Discrimination Act, expand coverage to ensure paid and unpaid workers are protected, extend the time limit for making a complaint from 6 to 24 months, make victimisation a potentially criminal offence and give new powers to the Fair Work Commission to make “stop sexual harassment orders”. Since then, the new Labour government elected on 21 May 2022 has promised to implement all the outstanding recommendations from the Respect@Work report. These include enacting a positive duty upon employers to take reasonable and proportionate measures to eliminate sexual harassment, sex discrimination and victimisation and providing the Australia Human Rights Commission with a broad enquiry function to enquire into systemic unlawful discrimination.

The South African code of good practice on the prevention and elimination of harassment in the workplace came into effect in March 2022, replacing a previous version. The new code is much more far-reaching, encompassing all forms of harassment in the workplace including sexual, racial, ethnic or social origin harassment. If the employer has not taken all reasonably practicable steps to ensure harassment does not occur, it may be vicariously liable for the conduct.

South Korea is expanding its protections. Under the current law, employees can file sex discrimination or sexual harassment complaints with the labour office, which can investigate, make orders and issue fines. From May 2022, employees will also be able to take complaints to the Labor Relations Commission and available remedies will include damages. In October 2021 South Korea also introduced new employer obligations and penalties for other types of workplace harassment.

A new ruling by the national labour court in Israel has stated that where a sexual harassment claim is filed against an employer and the complainant alleges the internal investigation was mismanaged, the employer could be required to disclose background material collected in the course of the investigation. Normally, an appointed investigator produces a summary of findings and recommendations and other materials, such as interview transcripts, are kept confidential to protect privacy and encourage cooperation with the investigation. Following this ruling, the employer may be required to disclose this material if the investigation is alleged to be flawed.

Gender identity

The USA’s President Biden signed an executive order in January 2021 on preventing and combatting discrimination based on gender identity and sexual orientation. This codified the Supreme Court’s decision in Bostock v Clayton County which held that discrimination “because of sex” included discrimination on the basis of gender identity and sexual orientation and it directs federal agencies to take affirmative steps to implement these rights.

Argentina implemented a new law aimed at promoting equality of opportunity at work for people who consider they have a gender identity that does not correspond to their birth sex, whether or not they had officially registered a change of sex. The law provides for a minimum hiring quota of not less than 1% of public administration personnel for “cross dressers, transsexuals and transgender people” and for benefits for private sector companies that hire people from those groups.

From 1 January 2022, Denmark introduced a ban on discrimination on the grounds of gender identity, gender expression and gender characteristics. According to this law, “gender identity” covers a person’s inner and individual experience of their gender, “gender expression” means the way they express it, such as through clothing, and “gender characteristics” includes bodily features that characterise and differentiate gender, including chromosomes and secondary sexual characteristics. The terms are also now included in the provisions about hate crime and hate speech in the criminal code. There were also court rulings related to gender identity in Germany and the UK. A German job advertisement which used the gender neutral “gender star” was held not to discriminate against polygender individuals. The star, which is supposed to indicate in a job advertisement that both sexes are welcomed, was found to be gender sensitive and an indication of diversity rather than discrimination. In the UK, the Employment Appeal Tribunal found that both a belief in “gender identity” and – the opposing – “gender critical” belief were protected philosophical beliefs for the purpose of discrimination law.

Sex and other protected characteristics

In other developments relating to sex discrimination, the Netherlands has implemented new targets for gender balance on boards. Large employers must publish appropriate and ambitious targets for the ratio of men to women on boards of directors, supervisory boards and senior management and must explain a failure to reach their targets. Supervisory boards must contain a third men and a third women and new appointments that breach this requirement will be rendered void. In addition, there is an initiative bill pending that proposes mandatory appointment of a “Trusted person” within organisations. This is to reduce and prevent discrimination and other forms of harassment in the workplace. Similarly, in Ireland, proposals are in place regarding the regulation of gender balance on the boards and governing councils of corporate bodies – the proposal is for a 40% quota for female representation on company boards. From 1 January 2022, the Hong Kong Stock Exchange has also adopted a Listing Rules amendment which states that “single gender” boards are considered unacceptable. They have stated that all existing “single gender” board issuers must appoint at least one director of a different gender by 31 December 2024

Gender balance on corporate boards has also been the focus of a recent “landmark” political agreement reached by the EU Commission after 10 years of stalemate. The Directive on improving the gender balance among non-executive directors of listed companies aims to address the underrepresentation of women in high level positions. It is now agreed that from 30 June 2026 companies listed in the EU must ensure that 40% of non-executive directors, and 33% of all directors, are the “underrepresented sex” (which will usually be women). Companies that do not achieve those objectives must apply transparent and gender neutral criteria in the appointment of directors and prioritise the underrepresented sex where two candidates of different sexes are equally qualified.

From 1 April 2022, Japan extended the Promotion of Female Participation and Career Advancement in the Workplace Act. All companies with more than 100 employees must formulate and file an action plan to improve gender equality, which contains concrete objectives and measures. Also on gender equality, in Germany, laws relating to the inclusion of women in leadership positions are being extended, a key change being that from 1 August 2022 public companies with over 2000 employees will be required to appoint one woman and one man to any management board that has more than three members. Similarly, in December 2021 France introduced an obligation for large companies (with more than 1,000 employees) to report on the representation of men and women in management committees and among top executives and to meet quota requirements relating to gender representation.

In Spain, a recent draft bill on sexual and reproductive health has garnered significant international media attention due to the proposal widely termed “menstrual leave”. If approved by Parliament, social security contributions would continue to be payable in certain cases of incapacitating menstruation.

In June 2021, Hong Kong introduced protection for breastfeeding women by making breastfeeding a protected characteristic in workplace discrimination law. In April 2021, the Equal Opportunities Commission published practical guidance for employers on providing equality for breastfeeding women in the workplace, which although non-binding is considered best practice for employers in the city.

There are fewer worldwide developments to report unrelated to harassment or gender but in other diversity and inclusion initiatives, the Creating a Respectful and Open World for Natural Hair (CROWN) Act – HR 2116 – passed the United States House on March 18. This would be the first piece of federal legislation addressing appearance discrimination as it specifically relates to a worker’s protected characteristic – in this case, race. The states of Oregon and Illinois and some districts in North Carolina join other US states in making natural hairstyles a protected characteristic. By contrast Florida has passed a new law (the ‘Stop WOKE’ Act) to take effect from July 2022 restricting what employers can say in diversity training. The new act applies to employers of 15 or more people and prohibits mandatory training for employees that promotes certain controversial theories, such as critical race theory. There is a pending legal challenge to the act.

In April 2022, Belgium simplified the conditions for labour inspectors to use anonymous practical tests, also referred to as “mystery calls”, to identify discrimination in recruitment. The new bill aims to increase the use of the tests by lowering the thresholds required and extending the powers of the inspectors.

The prime minister of Singapore announced in September 2021 that some of the best practice guidelines on preventing discrimination would be put into law. Current legislation only outlaws discrimination because of pregnancy or enlistment. The new laws will allow employees to bring claims against their employers for discrimination on grounds of nationality, race, sex, age, race, religion and disabilities. Disputes will go through conciliation and mediation prior to coming before a new workplace discrimination tribunal, to be established.

In Malaysia, the Employment (Amendment) Bill will extend the Director General of Labour’s powers in relation to disputes involving employment discrimination. Failure to comply with a Director General’s order will be an offence subject to a fine. It is not clear how effective this will be, as there is no clear definition of what constitutes discrimination or which protected characteristics are covered.

There is some important case law on other protected characteristics. In Belgium the Labour Court of Antwerp ruled that employers who discriminate on multiple protected grounds may be subject to cumulative compensation awards, even if the acts are intertwined. And there are several decisions on dress codes and religious discrimination. In France, the Court of Cassation (Supreme Court) has ruled in favour of a woman who was dismissed for refusing to remove a religious headscarf, which the employer demanded to preserve their “brand image”. The employer said there was a necessary and professional requirement for the restriction, relying on its assessment of customers’ expectations but the court found these were subjective considerations and rejected the argument. And there were ECJ decisions on the same topic in the combined German cases of IX v Wabe and MH v MJ. The ECJ ruled that a neutral dress code in the workplace does not constitute discrimination on grounds of religion or belief, provided the neutrality policy meets a “genuine need”, is appropriate and proportionate.

Minimum wage

Amid huge economic uncertainty, it’s a mixed picture when it comes to national minimum wage increases. Some countries have opted for big hikes, such as Hungary (nearly 20%), Mexico (22%) and Germany (where the government has introduced a bill in parliament to raise the minimum wage to EUR 12 per hour in October 2022, an increase of 22% from the increase already implemented in January). Others have taken a more cautious approach. In some jurisdictions, minimum wages remain frozen, such as Hong Kong which froze its minimum wage in 2021 for the first time since its introduction in 2011. Countries that do not have national minimum wages may come under more pressure to introduce them. Egypt, for example, introduced a new private sector minimum wage from 1 January 2022. This is an area to watch, as pressure is put on wages by the cost of living crisis and rising energy prices. In the meantime, the EU has reached an agreement on the text of a new EU framework directive on adequate minimum wages. This will not set an EU-wide minimum wage but aims to promote better and more effective minimum wage protection in all EU member states. The draft directive also explicitly intends to strengthen and extend the coverage of collective bargaining throughout the EU.

Pay equity

Countries continue to roll out gender pay gap reporting legislation. Ireland will be the next major country in Europe to do so. From this year, employers in Ireland will be required to publish the gender pay and bonus gap for the workforce as a whole, their views on what is causing any gap and plans for closing it. Gaps must be calculated using 12 months’ data up to June, and then published by December. The new requirements will initially apply to organisations with 250 or more employees, dropping to 50 employees in 2025. Ireland also has a new code of practice on equal pay.

Italy introduced new laws in December 2021 to tackle the gender pay gap, reducing the threshold for gender pay gap reporting obligations from companies with 100 employees to those with over 50 and introducing a new “pink label” certification scheme for organisations adopting gender equality measures. Employers who obtain the pink label will pay a little less in social security contributions. France has strengthened its regime, by requiring companies to publish more details about their gap and to publish proposed corrective measures where they do not meet a minimum “score”. Spain also now requires employers to keep detailed pay registers, which include a record of their justification for pay gaps exceeding 25%, and to carry out equal pay audits.

The EU has finally got the ball rolling on a new Pay Transparency Directive. The initial draft published in March 2021 was to apply to organisations with 250 or more employees, but MEPs recently voted for this to be reduced to 50. The proposals would require employers to publish pay gaps for the workforce as a whole, and also report internally on pay gaps within categories of workers doing the same work, or work of equal value. Significant pay gaps in any category of worker will mean that the employer must carry out a detailed equal pay assessment and develop an action plan. The draft Directive includes other measures to target pay discrimination, including a ban on asking job applicants about their salary history, an obligation on employers to publish information about pay ranges on job adverts, and a right for workers to know the average pay for workers doing the same job or jobs of equal value. Negotiations on the final text continue.

Outside the EU, Israel has introduced new gender pay gap reporting requirements, requiring employers to publish information about the average wage differentials between men and women, with the first reports due to be published by 1 June 2022. Israel has also provided employees with the right to know what comparable employees are paid. In the US, New York City is introducing a law requiring job adverts to state the minimum and maximum salary offered and Washington is following suit with a similar disclosure requirement due to come into effect in January 2023. Similar laws were enacted in Maryland (disclosure upon request) and in Ohio in Cincinnati and Toledo (disclosure after conditional offer of employment). Further, in Nevada, employers must provide it to external applicants post-interview, and to current employees interviewing for new roles, if requested.

In Canada, Ontario implemented the Pay Equity Act last year to ensure men and women receive equal pay for work of equal value.

In the UK, the government has announced it will not proceed with mandatory ethnicity pay gap reporting but will provide guidance for businesses that want to do it voluntarily.

In Australia, the new Labour government has announced a number of measures to tackle “insecure work” and address gender inequity in the workplace. These include making gender pay equity an objective of the Fair Work Act, and strengthening the Act’s equal remuneration provisions by ensuring that agency workers receive the same remuneration as employees of the host employer and by limiting the number of consecutive fixed-term contracts an employer can offer for the same role.

The implementation deadline for the EU Directive on Work-Life Balance (2 August 2022) is imminent and the last year saw a number of member states introduce legislation expanding paternity leave, strengthening parental leave and introducing carer’s leave, with more countries set to follow suit. These changes facilitate a central aim of the Directive: ensuring a more equal distribution of leave between parents, to improve the representation of women in the labour market.

In France, new parents now have an increased paternity leave entitlement, up from 11 to 25 days (or 32 days in the case of multiple births). This is in addition to the existing entitlement to three days’ birth leave which remains unchanged. Spain, however, has gone even further in ensuring equality between parents. Since January 2021, Spanish paternity leave has been 16 weeks, equal to maternity leave. The first 6 weeks of this leave must be taken immediately after the child’s birth, while the remainder can be used over the first year of the child’s life.

The Italian Parliament has recently issued legislation which, if enacted by the government, will extend both paternity and parental leave and include other measures to improve work-life balance.

Reform in Switzerland in 2021 saw caregivers being granted a right to short term paid leave to care for either a family member or life partner with a health condition, and also a new right of longer term childcare leave of up to 14 weeks, to take leave to care for a seriously ill or injured child.

New rules from August 2022 will significantly change how parental leave can be distributed between parents in Denmark. An allowance of 48 weeks’ parental leave (to be taken after a 2-week period of maternity and paternity leave) is split between periods “ear-marked” for each parent and 26 weeks which can be freely divided up.

Reforms to ensure a more even distribution of leave between parents are also due to come into force in Finland in August 2022. Under the new law, both parents will be entitled to 160 days of parental leave, with 63 days transferable between the parents. Women in the final stages of pregnancy will have enhanced rights, with new pregnancy allowance days to use in the last month before their due date.

Parental leave rights are also improving in the Netherlands. From August 2022, the first 9 weeks of parental leave will be paid (albeit not in full), with the remaining 17 still unpaid. The paid leave will need to be taken in the first year after the child’s birth with the remainder available to use up to the child’s 8th birthday.

Ireland has taken steps to bring family leave and rights in line with the Directive. In April 2021, both parents became entitled to an additional 3 weeks’ paid parent’s leave, increasing by a further 2 weeks in July 2022 (to a total of 7 weeks) and changes to adoption leave saw couples able to choose which parent takes leave. More recently, the Worklife Balance Bill looks set to extend maternity leave entitlement to transgender men and significantly increase the length of time employees are entitled to paid time off or reduced hours for the purposes of breastfeeding. Ireland also proposes new rights for parents and carers to request flexible working (as covered above).

In Germany, executive board members, not previously able to suspend their duties temporarily during periods of sickness and pregnancy, are now able to take up to 3 months off. This is done through a process of revocation of appointment and reinstatement relieving them of their legal duties while absent.

Countries outside the EU have also seen some significant changes to family rights. In June 2021, Japan introduced new legislation – widely termed “male maternity leave” – which enables parents to take leave after the birth of a child, and after the child’s first birthday, in more flexible ways. Employers are now obliged to encourage employees to take childcare leave and also to inform them of their rights. In Taiwan, in July 2021, changes were made to the system of unpaid parental leave. Now, unpaid parental leave (which must be taken before the child is 3) may be for a minimum of 30 days, down significantly from the previous minimum of 6 months. Changes have also been made to parental leave allowance, increasing the financial support that may be available during this form of leave.

In Malaysia employees are set to have the right to make flexible working requests, and both maternity and paternity leave have been substantially increased. Colombia also made significant changes to its family leave system in 2021, with an extension of paternity leave, the introduction of transferable maternity leave, and new provisions relating to the extension of maternity and paternity leave through part time working. The UAE has increased maternity leave from 45 to 60 days and has also introduced 5 days parental leave. In the US, many states have extended the Family Medical Leave Act leave rights to companies with fewer than 50 employees. States like California, New Jersey, Rhode Island and New York now require employers to provide paid parental leave as well. And further on the horizon, the US state of Maryland has introduced reforms which will take effect from 2025, creating a family and medical leave fund to provide paid leave in situations including caring for a child after birth or during their first year.

More limited reform in South Korea saw women in high risk pregnancies become entitled to use some of the year of unpaid child care leave (which is an additional right to statutory maternity leave) while still pregnant, and gave them the right to request changes to their working hours.

Finally, echoing the introduction of parental bereavement leave in England and Wales in 2020, Bereavement Leave has now been introduced in Northern Ireland and significantly extended in Belgium. In Northern Ireland, the right to 10 days’ paid leave for victims of domestic abuse has also been introduced.

ESG was originally a concept used by investors to assess sustainability but has rapidly come to define the latest area of focus for companies trying to do business responsibly. Legislation is now also being targeted at this area, especially within the EU.

Whistleblowing is now considered part of the ESG agenda. All EU countries were required to implement the provisions of the new EU Whistleblower Directive into their national legal systems by 17 December 2021. The Directive provides EU-wide protection for individuals who blow the whistle about infringements of certain EU laws, including in the areas of public procurement, financial services, money laundering, product safety, environmental protection and data privacy. Key jurisdictions to have implemented their whistleblowing legislation so far include Denmark, Sweden and France. Portugal’s law comes into force on 18 June. Poland, Ireland, Spain and the Netherlands have official draft legislation in place but Germany and Belgium have fallen behind, with only unofficial drafts in place so far. In January, the EU Commission took the first step in starting enforcement proceedings against the countries that had not or had only partially implemented the Directive’s provisions. The most significant feature of the Directive for employers is the explicit requirement for companies to follow up on reports received internally through their whistleblowing channels and provide an outcome to the whistleblower. In practical terms, this means that, where it did not exist before, all companies operating within the EU need to build the capacity to conduct investigations.

Countries – and regulators – outside the EU have also been introducing or strengthening whistleblowing laws. In April 2022, the Dubai Financial Services Authority introduced a new whistleblowing regime to protect people who disclose suspicions of regulatory or financial non-compliance. The new regime applies to all DFSA-regulated organisations operating within the Dubai International Financial Centre. In January 2022, the US state of New York strengthened its whistleblowing laws to, among other things, extend whistleblower protection to former employees and independent contractors and to protect people who disclose issues which they reasonably believe to be non-compliant (rather than only disclosures of an actual legal violation, as required under the previous rules). New Zealand is also extending its whistleblowing laws with new legislation coming into force on 1 July and in Australia (which strengthened its regime in 2019), the Securities and Investments Commission recently wrote an open letter to listed and large private companies urging them to review their whistleblowing policies and ensure that they encourage employees to report issues. Finally, Japan’s new whistleblower laws started to take effect from 1 June 2022. The amendments widen the scope of reports that qualify for protection and oblige companies with over 300 employees to designate a whistleblowing officer, carry out investigations and take remedial action to address any violations discovered.

The EU plans to put wider ESG issues firmly on the radar of all companies operating in its market with two new Directives currently in progress. The proposed Corporate Sustainability Due Diligence Directive will require in-scope companies to take appropriate measures to identify actual or potential adverse human rights and environmental impacts in their own operations and in the operations of their value chain (a concept that includes established suppliers and customers). Large EU companies (with more than 500 employees and a net worldwide turnover of over EUR150 million) must also have a plan to ensure their business model and strategy are compatible with the Paris Agreement goal of limiting global warming to 1.5 degrees. The new law has been described as projecting European values on value chains, and will complement the draft Corporate Sustainability Reporting Directive which requires in-scope companies to report on the way they operate and manage a range of social and environmental challenges according to a new set of EU sustainability standards.

Within Europe, some countries are also considering or passing their own supply chain due diligence legislation. Most notably, a new Supply Chain Act in Germany comes into force on 1 January 2023 requiring companies to assess their supply chain’s compliance with human rights and environmental standards. The law will apply initially to companies with 3000 employees and a registered office or branch in Germany. From 2024 this threshold will be reduced to 1000 employees. The Netherlands is set to introduce a child labour due diligence law, requiring Dutch companies and any other company supplying goods or services to Dutch consumers to investigate whether child labour has been used in their supply chain and Norway has a new Transparency Act coming into force in July 2022 requiring due diligence on human rights and decent working conditions in the supply chain. The UK intends to strengthen its existing requirement on businesses with a turnover of £36 million or more to publish an annual modern slavery statement, by mandating the reporting areas to be covered, requiring organisations to publish their statements on a government-run registry and introducing penalties for organisations that do not comply with the requirements. In Belgium, a legislative proposal was introduced last year in the Chamber of Representatives, establishing the principle of corporate responsibility to respect human rights, labour rights and the environment as well as implementing a mandatory value chain due diligence for all companies established or active in Belgium. However, there has been no further progress with the proposal. The state of New South Wales, Australia repealed modern slavery reporting obligations for NSW businesses in November 2021. This means there will continue to be one supply chain transparency regime for Australian businesses, which notably does not impose financial penalties for non-compliance.

Outside Europe, Canada has draft legislation requiring companies to disclose the steps they have taken to eradicate forced labour or child labour in their supply chains and the US enacted the Uyghur Forced Labour Prevention Act in December 2021 requiring importers to demonstrate the absence of forced labour in the production of goods coming from the Xinjiang Uyghur Autonomous Region (XUAR). Specifically, the Act requires the U.S. government to develop a new enforcement strategy to strengthen the prohibition of the importation of goods made through forced labour into the United States. The Act creates a rebuttable presumption – coming into force on 21 June 2022 – that “any goods, wares, articles, and merchandise mined, produced, or manufactured wholly or in part” in the XUAR of China, or by certain entities within the region, are produced with forced labour and therefore prohibited from importation.

The first signs of climate-related employment law are also beginning to emerge in Europe. In Italy, companies with more than 100 employees are now required to engage “mobility managers” whose responsibilities include reducing the use of private cars for commuting to work and promoting sustainable mobility. Since August 2021, employers in France have been required to inform and consult with their Social and Economic Committees on the environmental implications of business decisions affecting the workforce. This gives employee representatives a new environmental protection role.

Across the world, the closure of offices during the pandemic accelerated the expansion and popularity of remote working, making this arrangement an overnight reality for millions. As it becomes clear that working patterns and preferences have changed for good, many jurisdictions have or are putting in place legislation and guidance to manage a more permanent transition to remote or hybrid working arrangements.

During mandatory lockdowns, the decision whether to permit homeworking was largely taken out of employers’ hands. Over the past year, however, many countries have been grappling with the extent to which the employer can control flexible and remote working, and how to deal with the practicalities and costs of these arrangements.

In France, the Court of Cassation (the Supreme Court) ruled that an employee could not unilaterally decide to work offsite – the employer’s consent was required. In Greece, whether or not a remote working arrangement requires the employer’s consent depends on the type of work and arrangement in question, with the newly amended Labour Law defining different categories of remote working. Prior to the pandemic, Greece had one of the lowest levels of remote working in the EU. Now the practicalities of this working arrangement, including the employer’s obligation to subsidise associated costs, are comprehensively addressed in law.

July 2021 saw Spain pass the Remote Work Act, applicable when at least 30% of an individual’s work is done remotely. Under this legislation employers must ensure various matters are covered in a written remote working agreement, provide all necessary materials, and compensate the employee for expenses relating to remote working.

Luxembourg has introduced legislation requiring companies with 150 or more employees to secure agreement between the employer and staff delegation if a company-wide remote working agreement is to be changed. This now forms one of only 8 matters for which such an agreement is needed.

Recognising the dangers of blurring home and work, revised regulations in Norway (in force from July of this year) have strengthened the need for compliance with the terms of homeworking agreements, through the introduction of oversight by the Labor Inspection Authority. Similarly, in Poland, remote working looks set to be permanently incorporated into the Polish Labour Code from August. These changes will govern when remote working is permitted, and what associated costs will be borne by the employer.

In Ireland, flexible and remote working has been a focus for both the courts and legislature. A case heard by the Workplace Relations Commission clarified that, while there is no general right to work from home, employers will be expected to consider remote working requests thoroughly, and to have strong reasonable grounds for refusing to facilitate them. The absence of a legislative framework for handling such a request is set to change, with the publication of the Right to Request Remote Working Bill earlier this year. This will give employees with 6 months’ service the right to request remote working. This is subject to the employer’s agreement, but refusal must be based on one of the reasons listed in the legislation. The Bill has come under a lot of criticism so it’s likely to be significantly amended before it is finalised. Flexible working requests from parents or carers will soon be backed up by law as a result of a new Bill to enable those with caring responsibilities to request flexible working arrangements for a set period of time. This is to implement the EU Work-Life Balance Directive. Separate proposals to allow all employees to make flexible working requests are also in place.

The upcoming changes in Ireland echo new laws introduced earlier this year in Portugal. Now a request for a remote working arrangement made by an employee with a child up to the age of 8 cannot be refused, provided certain conditions are met; a request from someone with children up to the age of 3 cannot be refused in any circumstances. In other cases, a refusal needs to be in writing, stating the reasons. In terms of expenses, it’s again down to the employer to cover the cost of equipment and energy costs, an increasingly significant consideration for households across Europe.

Remote working requests in the Netherlands may also acquire more legal clout. Here the aptly named “Work Where You Want” Bill would amend existing flexible working legislation and require an employer to grant a request for remote working unless it can demonstrate compelling business reasons not to do so.

In the UK there are no specific legislative changes to address hybrid or remote working, and any such requests would need to be accommodated within the existing flexible working regime. Limited reforms to this legislation, including the right to make a flexible working request from day 1 of employment are under consideration. Germany also has yet to introduce any legislative changes, but the Federal Ministry of Labour is drafting a law that would provide for an entitlement to remote working.

In South America, legislation was introduced in Argentina in March 2021 to regulate remote working. Amongst other things, the parties now need a written remote working agreement, and the employer must bear the cost of equipment and expenses. In Brazil, under revised legislation, disabled employees and those with young children should be prioritised for hybrid and remote working arrangements. New legislation is also expected to be approved shortly which will result in collective agreements applicable to the company’s office applying equally to remote workers and provide confirmation that remote workers in the telecommunications industry are not exempt from working hour requirements.

A shift to remote working was a significant change to working culture in Japan. Although not legally enforceable, in March 2021 guidelines were introduced to help promote positive and effective remote working schemes, balancing appropriate management control against positive working patterns for employees.

Finally, remote working literally opens up a world of possibilities. An increasingly common, and also challenging, issue is that of employees who wish to work from “home”, either on a temporary or permanent basis, from an overseas country. One recent example of a potential host country seeking to facilitate this was the introduction of a remote working visa in the UAE in April 2021. This allows foreign nationals to live and work in the UAE, while remaining employed in their home country. Unlike Employment Residence Permits, this does not require local company sponsorship. Meanwhile in Italy, as of April 2022, non-EU nationals who carry out a “highly qualified” job remotely are able to enter the country without a work permit and obtain a residence permit for one year, provided they have adequate health insurance and comply with Italian tax and social security provisions.

Harassment

In the wake of the #MeToo movement, many jurisdictions implemented or improved harassment protections and that trend is still evident across the world. In Denmark the government and social partners have entered into a wide-ranging agreement on sexual harassment to foster change. Consisting of 17 initiatives, it is a mixture of statutory change, new codes and policies, and information gathering. Also in Denmark a significant recent High Court case held an employer liable for failing to prevent an employee’s sexual harassment of a colleague, underlining the importance of employers taking preventative measures.

The Norwegian government is consulting about implementing ILO Convention no. 190 to eliminate violence and harassment in the workplace. It also proposes a new gender equality policy, a duty for employers to have workplace harassment and sexual harassment policies and to clarify the duty on safety representatives to safeguard the working environment of employees.

Greece is also obliging employers to implement policies or provisions on dealing with harassment in the workplace and France has recently seen an extension of the definition of sexual harassment in its Labour Code, requiring companies to update their internal regulations.

Ireland has implemented a new code of practice on sexual harassment. It does not create new obligations but promotes best practice, such as recommending employers adopt and publish policies to ensure harassment-free workplaces and deal effectively with complaints. It encourages training for employees on preventing sexual harassment. It also highlights the position of vulnerable workers who may need additional measures. Ireland has also adopted a new code of practice on preventing workplace bullying. It is more onerous on employers and is more emphatic about recommending mediation to employees as a potential route to resolve issues. Failure to abide by the code is not illegal but can be used in evidence before the Workplace Relations Commission.

The UK government also committed to introducing a new proactive duty on employers to prevent sexual harassment, whilst also considering new laws which would make employers liable if third parties harass their employees and the possibility of extending the time limit in which to bring discrimination claims. No legislation, however, is being introduced to parliament at the moment.

In Texas, a new law means employers must take “immediate and appropriate corrective action” to remedy workplace sexual harassment that they know or should have known about. Employers of all sizes are affected, and individual employees can also be liable.

In September 2021, Australia updated its workplace sexual harassment laws to adopt some (but not all) of the recommendations in the Australian Human Rights Commission’s Respect@Work report. Among other things, the reforms clarify that sexual harassment is prohibited under the Sex Discrimination Act, expand coverage to ensure paid and unpaid workers are protected, extend the time limit for making a complaint from 6 to 24 months, make victimisation a potentially criminal offence and give new powers to the Fair Work Commission to make “stop sexual harassment orders”. Since then, the new Labour government elected on 21 May 2022 has promised to implement all the outstanding recommendations from the Respect@Work report. These include enacting a positive duty upon employers to take reasonable and proportionate measures to eliminate sexual harassment, sex discrimination and victimisation and providing the Australia Human Rights Commission with a broad enquiry function to enquire into systemic unlawful discrimination.

The South African code of good practice on the prevention and elimination of harassment in the workplace came into effect in March 2022, replacing a previous version. The new code is much more far-reaching, encompassing all forms of harassment in the workplace including sexual, racial, ethnic or social origin harassment. If the employer has not taken all reasonably practicable steps to ensure harassment does not occur, it may be vicariously liable for the conduct.

South Korea is expanding its protections. Under the current law, employees can file sex discrimination or sexual harassment complaints with the labour office, which can investigate, make orders and issue fines. From May 2022, employees will also be able to take complaints to the Labor Relations Commission and available remedies will include damages. In October 2021 South Korea also introduced new employer obligations and penalties for other types of workplace harassment.

A new ruling by the national labour court in Israel has stated that where a sexual harassment claim is filed against an employer and the complainant alleges the internal investigation was mismanaged, the employer could be required to disclose background material collected in the course of the investigation. Normally, an appointed investigator produces a summary of findings and recommendations and other materials, such as interview transcripts, are kept confidential to protect privacy and encourage cooperation with the investigation. Following this ruling, the employer may be required to disclose this material if the investigation is alleged to be flawed.

Gender identity

The USA’s President Biden signed an executive order in January 2021 on preventing and combatting discrimination based on gender identity and sexual orientation. This codified the Supreme Court’s decision in Bostock v Clayton County which held that discrimination “because of sex” included discrimination on the basis of gender identity and sexual orientation and it directs federal agencies to take affirmative steps to implement these rights.

Argentina implemented a new law aimed at promoting equality of opportunity at work for people who consider they have a gender identity that does not correspond to their birth sex, whether or not they had officially registered a change of sex. The law provides for a minimum hiring quota of not less than 1% of public administration personnel for “cross dressers, transsexuals and transgender people” and for benefits for private sector companies that hire people from those groups.

From 1 January 2022, Denmark introduced a ban on discrimination on the grounds of gender identity, gender expression and gender characteristics. According to this law, “gender identity” covers a person’s inner and individual experience of their gender, “gender expression” means the way they express it, such as through clothing, and “gender characteristics” includes bodily features that characterise and differentiate gender, including chromosomes and secondary sexual characteristics. The terms are also now included in the provisions about hate crime and hate speech in the criminal code. There were also court rulings related to gender identity in Germany and the UK. A German job advertisement which used the gender neutral “gender star” was held not to discriminate against polygender individuals. The star, which is supposed to indicate in a job advertisement that both sexes are welcomed, was found to be gender sensitive and an indication of diversity rather than discrimination. In the UK, the Employment Appeal Tribunal found that both a belief in “gender identity” and – the opposing – “gender critical” belief were protected philosophical beliefs for the purpose of discrimination law.

Sex and other protected characteristics

In other developments relating to sex discrimination, the Netherlands has implemented new targets for gender balance on boards. Large employers must publish appropriate and ambitious targets for the ratio of men to women on boards of directors, supervisory boards and senior management and must explain a failure to reach their targets. Supervisory boards must contain a third men and a third women and new appointments that breach this requirement will be rendered void. In addition, there is an initiative bill pending that proposes mandatory appointment of a “Trusted person” within organisations. This is to reduce and prevent discrimination and other forms of harassment in the workplace. Similarly, in Ireland, proposals are in place regarding the regulation of gender balance on the boards and governing councils of corporate bodies – the proposal is for a 40% quota for female representation on company boards. From 1 January 2022, the Hong Kong Stock Exchange has also adopted a Listing Rules amendment which states that “single gender” boards are considered unacceptable. They have stated that all existing “single gender” board issuers must appoint at least one director of a different gender by 31 December 2024

Gender balance on corporate boards has also been the focus of a recent “landmark” political agreement reached by the EU Commission after 10 years of stalemate. The Directive on improving the gender balance among non-executive directors of listed companies aims to address the underrepresentation of women in high level positions. It is now agreed that from 30 June 2026 companies listed in the EU must ensure that 40% of non-executive directors, and 33% of all directors, are the “underrepresented sex” (which will usually be women). Companies that do not achieve those objectives must apply transparent and gender neutral criteria in the appointment of directors and prioritise the underrepresented sex where two candidates of different sexes are equally qualified.

From 1 April 2022, Japan extended the Promotion of Female Participation and Career Advancement in the Workplace Act. All companies with more than 100 employees must formulate and file an action plan to improve gender equality, which contains concrete objectives and measures. Also on gender equality, in Germany, laws relating to the inclusion of women in leadership positions are being extended, a key change being that from 1 August 2022 public companies with over 2000 employees will be required to appoint one woman and one man to any management board that has more than three members. Similarly, in December 2021 France introduced an obligation for large companies (with more than 1,000 employees) to report on the representation of men and women in management committees and among top executives and to meet quota requirements relating to gender representation.

In Spain, a recent draft bill on sexual and reproductive health has garnered significant international media attention due to the proposal widely termed “menstrual leave”. If approved by Parliament, social security contributions would continue to be payable in certain cases of incapacitating menstruation.

In June 2021, Hong Kong introduced protection for breastfeeding women by making breastfeeding a protected characteristic in workplace discrimination law. In April 2021, the Equal Opportunities Commission published practical guidance for employers on providing equality for breastfeeding women in the workplace, which although non-binding is considered best practice for employers in the city.

There are fewer worldwide developments to report unrelated to harassment or gender but in other diversity and inclusion initiatives, the Creating a Respectful and Open World for Natural Hair (CROWN) Act – HR 2116 – passed the United States House on March 18. This would be the first piece of federal legislation addressing appearance discrimination as it specifically relates to a worker’s protected characteristic – in this case, race. The states of Oregon and Illinois and some districts in North Carolina join other US states in making natural hairstyles a protected characteristic. By contrast Florida has passed a new law (the ‘Stop WOKE’ Act) to take effect from July 2022 restricting what employers can say in diversity training. The new act applies to employers of 15 or more people and prohibits mandatory training for employees that promotes certain controversial theories, such as critical race theory. There is a pending legal challenge to the act.

In April 2022, Belgium simplified the conditions for labour inspectors to use anonymous practical tests, also referred to as “mystery calls”, to identify discrimination in recruitment. The new bill aims to increase the use of the tests by lowering the thresholds required and extending the powers of the inspectors.

The prime minister of Singapore announced in September 2021 that some of the best practice guidelines on preventing discrimination would be put into law. Current legislation only outlaws discrimination because of pregnancy or enlistment. The new laws will allow employees to bring claims against their employers for discrimination on grounds of nationality, race, sex, age, race, religion and disabilities. Disputes will go through conciliation and mediation prior to coming before a new workplace discrimination tribunal, to be established.

In Malaysia, the Employment (Amendment) Bill will extend the Director General of Labour’s powers in relation to disputes involving employment discrimination. Failure to comply with a Director General’s order will be an offence subject to a fine. It is not clear how effective this will be, as there is no clear definition of what constitutes discrimination or which protected characteristics are covered.

There is some important case law on other protected characteristics. In Belgium the Labour Court of Antwerp ruled that employers who discriminate on multiple protected grounds may be subject to cumulative compensation awards, even if the acts are intertwined. And there are several decisions on dress codes and religious discrimination. In France, the Court of Cassation (Supreme Court) has ruled in favour of a woman who was dismissed for refusing to remove a religious headscarf, which the employer demanded to preserve their “brand image”. The employer said there was a necessary and professional requirement for the restriction, relying on its assessment of customers’ expectations but the court found these were subjective considerations and rejected the argument. And there were ECJ decisions on the same topic in the combined German cases of IX v Wabe and MH v MJ. The ECJ ruled that a neutral dress code in the workplace does not constitute discrimination on grounds of religion or belief, provided the neutrality policy meets a “genuine need”, is appropriate and proportionate.

Minimum wage

Amid huge economic uncertainty, it’s a mixed picture when it comes to national minimum wage increases. Some countries have opted for big hikes, such as Hungary (nearly 20%), Mexico (22%) and Germany (where the government has introduced a bill in parliament to raise the minimum wage to EUR 12 per hour in October 2022, an increase of 22% from the increase already implemented in January). Others have taken a more cautious approach. In some jurisdictions, minimum wages remain frozen, such as Hong Kong which froze its minimum wage in 2021 for the first time since its introduction in 2011. Countries that do not have national minimum wages may come under more pressure to introduce them. Egypt, for example, introduced a new private sector minimum wage from 1 January 2022. This is an area to watch, as pressure is put on wages by the cost of living crisis and rising energy prices. In the meantime, the EU has reached an agreement on the text of a new EU framework directive on adequate minimum wages. This will not set an EU-wide minimum wage but aims to promote better and more effective minimum wage protection in all EU member states. The draft directive also explicitly intends to strengthen and extend the coverage of collective bargaining throughout the EU.

Pay equity

Countries continue to roll out gender pay gap reporting legislation. Ireland will be the next major country in Europe to do so. From this year, employers in Ireland will be required to publish the gender pay and bonus gap for the workforce as a whole, their views on what is causing any gap and plans for closing it. Gaps must be calculated using 12 months’ data up to June, and then published by December. The new requirements will initially apply to organisations with 250 or more employees, dropping to 50 employees in 2025. Ireland also has a new code of practice on equal pay.

Italy introduced new laws in December 2021 to tackle the gender pay gap, reducing the threshold for gender pay gap reporting obligations from companies with 100 employees to those with over 50 and introducing a new “pink label” certification scheme for organisations adopting gender equality measures. Employers who obtain the pink label will pay a little less in social security contributions. France has strengthened its regime, by requiring companies to publish more details about their gap and to publish proposed corrective measures where they do not meet a minimum “score”. Spain also now requires employers to keep detailed pay registers, which include a record of their justification for pay gaps exceeding 25%, and to carry out equal pay audits.

The EU has finally got the ball rolling on a new Pay Transparency Directive. The initial draft published in March 2021 was to apply to organisations with 250 or more employees, but MEPs recently voted for this to be reduced to 50. The proposals would require employers to publish pay gaps for the workforce as a whole, and also report internally on pay gaps within categories of workers doing the same work, or work of equal value. Significant pay gaps in any category of worker will mean that the employer must carry out a detailed equal pay assessment and develop an action plan. The draft Directive includes other measures to target pay discrimination, including a ban on asking job applicants about their salary history, an obligation on employers to publish information about pay ranges on job adverts, and a right for workers to know the average pay for workers doing the same job or jobs of equal value. Negotiations on the final text continue.

Outside the EU, Israel has introduced new gender pay gap reporting requirements, requiring employers to publish information about the average wage differentials between men and women, with the first reports due to be published by 1 June 2022. Israel has also provided employees with the right to know what comparable employees are paid. In the US, New York City is introducing a law requiring job adverts to state the minimum and maximum salary offered and Washington is following suit with a similar disclosure requirement due to come into effect in January 2023. Similar laws were enacted in Maryland (disclosure upon request) and in Ohio in Cincinnati and Toledo (disclosure after conditional offer of employment). Further, in Nevada, employers must provide it to external applicants post-interview, and to current employees interviewing for new roles, if requested.

In Canada, Ontario implemented the Pay Equity Act last year to ensure men and women receive equal pay for work of equal value.

In the UK, the government has announced it will not proceed with mandatory ethnicity pay gap reporting but will provide guidance for businesses that want to do it voluntarily.

In Australia, the new Labour government has announced a number of measures to tackle “insecure work” and address gender inequity in the workplace. These include making gender pay equity an objective of the Fair Work Act, and strengthening the Act’s equal remuneration provisions by ensuring that agency workers receive the same remuneration as employees of the host employer and by limiting the number of consecutive fixed-term contracts an employer can offer for the same role.

The implementation deadline for the EU Directive on Work-Life Balance (2 August 2022) is imminent and the last year saw a number of member states introduce legislation expanding paternity leave, strengthening parental leave and introducing carer’s leave, with more countries set to follow suit. These changes facilitate a central aim of the Directive: ensuring a more equal distribution of leave between parents, to improve the representation of women in the labour market.

In France, new parents now have an increased paternity leave entitlement, up from 11 to 25 days (or 32 days in the case of multiple births). This is in addition to the existing entitlement to three days’ birth leave which remains unchanged. Spain, however, has gone even further in ensuring equality between parents. Since January 2021, Spanish paternity leave has been 16 weeks, equal to maternity leave. The first 6 weeks of this leave must be taken immediately after the child’s birth, while the remainder can be used over the first year of the child’s life.

The Italian Parliament has recently issued legislation which, if enacted by the government, will extend both paternity and parental leave and include other measures to improve work-life balance.

Reform in Switzerland in 2021 saw caregivers being granted a right to short term paid leave to care for either a family member or life partner with a health condition, and also a new right of longer term childcare leave of up to 14 weeks, to take leave to care for a seriously ill or injured child.

New rules from August 2022 will significantly change how parental leave can be distributed between parents in Denmark. An allowance of 48 weeks’ parental leave (to be taken after a 2-week period of maternity and paternity leave) is split between periods “ear-marked” for each parent and 26 weeks which can be freely divided up.

Reforms to ensure a more even distribution of leave between parents are also due to come into force in Finland in August 2022. Under the new law, both parents will be entitled to 160 days of parental leave, with 63 days transferable between the parents. Women in the final stages of pregnancy will have enhanced rights, with new pregnancy allowance days to use in the last month before their due date.

Parental leave rights are also improving in the Netherlands. From August 2022, the first 9 weeks of parental leave will be paid (albeit not in full), with the remaining 17 still unpaid. The paid leave will need to be taken in the first year after the child’s birth with the remainder available to use up to the child’s 8th birthday.

Ireland has taken steps to bring family leave and rights in line with the Directive. In April 2021, both parents became entitled to an additional 3 weeks’ paid parent’s leave, increasing by a further 2 weeks in July 2022 (to a total of 7 weeks) and changes to adoption leave saw couples able to choose which parent takes leave. More recently, the Worklife Balance Bill looks set to extend maternity leave entitlement to transgender men and significantly increase the length of time employees are entitled to paid time off or reduced hours for the purposes of breastfeeding. Ireland also proposes new rights for parents and carers to request flexible working (as covered above).

In Germany, executive board members, not previously able to suspend their duties temporarily during periods of sickness and pregnancy, are now able to take up to 3 months off. This is done through a process of revocation of appointment and reinstatement relieving them of their legal duties while absent.

Countries outside the EU have also seen some significant changes to family rights. In June 2021, Japan introduced new legislation – widely termed “male maternity leave” – which enables parents to take leave after the birth of a child, and after the child’s first birthday, in more flexible ways. Employers are now obliged to encourage employees to take childcare leave and also to inform them of their rights. In Taiwan, in July 2021, changes were made to the system of unpaid parental leave. Now, unpaid parental leave (which must be taken before the child is 3) may be for a minimum of 30 days, down significantly from the previous minimum of 6 months. Changes have also been made to parental leave allowance, increasing the financial support that may be available during this form of leave.

In Malaysia employees are set to have the right to make flexible working requests, and both maternity and paternity leave have been substantially increased. Colombia also made significant changes to its family leave system in 2021, with an extension of paternity leave, the introduction of transferable maternity leave, and new provisions relating to the extension of maternity and paternity leave through part time working. The UAE has increased maternity leave from 45 to 60 days and has also introduced 5 days parental leave. In the US, many states have extended the Family Medical Leave Act leave rights to companies with fewer than 50 employees. States like California, New Jersey, Rhode Island and New York now require employers to provide paid parental leave as well. And further on the horizon, the US state of Maryland has introduced reforms which will take effect from 2025, creating a family and medical leave fund to provide paid leave in situations including caring for a child after birth or during their first year.

More limited reform in South Korea saw women in high risk pregnancies become entitled to use some of the year of unpaid child care leave (which is an additional right to statutory maternity leave) while still pregnant, and gave them the right to request changes to their working hours.

Finally, echoing the introduction of parental bereavement leave in England and Wales in 2020, Bereavement Leave has now been introduced in Northern Ireland and significantly extended in Belgium. In Northern Ireland, the right to 10 days’ paid leave for victims of domestic abuse has also been introduced.

ESG was originally a concept used by investors to assess sustainability but has rapidly come to define the latest area of focus for companies trying to do business responsibly. Legislation is now also being targeted at this area, especially within the EU.

Whistleblowing is now considered part of the ESG agenda. All EU countries were required to implement the provisions of the new EU Whistleblower Directive into their national legal systems by 17 December 2021. The Directive provides EU-wide protection for individuals who blow the whistle about infringements of certain EU laws, including in the areas of public procurement, financial services, money laundering, product safety, environmental protection and data privacy. Key jurisdictions to have implemented their whistleblowing legislation so far include Denmark, Sweden and France. Portugal’s law comes into force on 18 June. Poland, Ireland, Spain and the Netherlands have official draft legislation in place but Germany and Belgium have fallen behind, with only unofficial drafts in place so far. In January, the EU Commission took the first step in starting enforcement proceedings against the countries that had not or had only partially implemented the Directive’s provisions. The most significant feature of the Directive for employers is the explicit requirement for companies to follow up on reports received internally through their whistleblowing channels and provide an outcome to the whistleblower. In practical terms, this means that, where it did not exist before, all companies operating within the EU need to build the capacity to conduct investigations.

Countries – and regulators – outside the EU have also been introducing or strengthening whistleblowing laws. In April 2022, the Dubai Financial Services Authority introduced a new whistleblowing regime to protect people who disclose suspicions of regulatory or financial non-compliance. The new regime applies to all DFSA-regulated organisations operating within the Dubai International Financial Centre. In January 2022, the US state of New York strengthened its whistleblowing laws to, among other things, extend whistleblower protection to former employees and independent contractors and to protect people who disclose issues which they reasonably believe to be non-compliant (rather than only disclosures of an actual legal violation, as required under the previous rules). New Zealand is also extending its whistleblowing laws with new legislation coming into force on 1 July and in Australia (which strengthened its regime in 2019), the Securities and Investments Commission recently wrote an open letter to listed and large private companies urging them to review their whistleblowing policies and ensure that they encourage employees to report issues. Finally, Japan’s new whistleblower laws started to take effect from 1 June 2022. The amendments widen the scope of reports that qualify for protection and oblige companies with over 300 employees to designate a whistleblowing officer, carry out investigations and take remedial action to address any violations discovered.

The EU plans to put wider ESG issues firmly on the radar of all companies operating in its market with two new Directives currently in progress. The proposed Corporate Sustainability Due Diligence Directive will require in-scope companies to take appropriate measures to identify actual or potential adverse human rights and environmental impacts in their own operations and in the operations of their value chain (a concept that includes established suppliers and customers). Large EU companies (with more than 500 employees and a net worldwide turnover of over EUR150 million) must also have a plan to ensure their business model and strategy are compatible with the Paris Agreement goal of limiting global warming to 1.5 degrees. The new law has been described as projecting European values on value chains, and will complement the draft Corporate Sustainability Reporting Directive which requires in-scope companies to report on the way they operate and manage a range of social and environmental challenges according to a new set of EU sustainability standards.

Within Europe, some countries are also considering or passing their own supply chain due diligence legislation. Most notably, a new Supply Chain Act in Germany comes into force on 1 January 2023 requiring companies to assess their supply chain’s compliance with human rights and environmental standards. The law will apply initially to companies with 3000 employees and a registered office or branch in Germany. From 2024 this threshold will be reduced to 1000 employees. The Netherlands is set to introduce a child labour due diligence law, requiring Dutch companies and any other company supplying goods or services to Dutch consumers to investigate whether child labour has been used in their supply chain and Norway has a new Transparency Act coming into force in July 2022 requiring due diligence on human rights and decent working conditions in the supply chain. The UK intends to strengthen its existing requirement on businesses with a turnover of £36 million or more to publish an annual modern slavery statement, by mandating the reporting areas to be covered, requiring organisations to publish their statements on a government-run registry and introducing penalties for organisations that do not comply with the requirements. In Belgium, a legislative proposal was introduced last year in the Chamber of Representatives, establishing the principle of corporate responsibility to respect human rights, labour rights and the environment as well as implementing a mandatory value chain due diligence for all companies established or active in Belgium. However, there has been no further progress with the proposal. The state of New South Wales, Australia repealed modern slavery reporting obligations for NSW businesses in November 2021. This means there will continue to be one supply chain transparency regime for Australian businesses, which notably does not impose financial penalties for non-compliance.

Outside Europe, Canada has draft legislation requiring companies to disclose the steps they have taken to eradicate forced labour or child labour in their supply chains and the US enacted the Uyghur Forced Labour Prevention Act in December 2021 requiring importers to demonstrate the absence of forced labour in the production of goods coming from the Xinjiang Uyghur Autonomous Region (XUAR). Specifically, the Act requires the U.S. government to develop a new enforcement strategy to strengthen the prohibition of the importation of goods made through forced labour into the United States. The Act creates a rebuttable presumption – coming into force on 21 June 2022 – that “any goods, wares, articles, and merchandise mined, produced, or manufactured wholly or in part” in the XUAR of China, or by certain entities within the region, are produced with forced labour and therefore prohibited from importation.

The first signs of climate-related employment law are also beginning to emerge in Europe. In Italy, companies with more than 100 employees are now required to engage “mobility managers” whose responsibilities include reducing the use of private cars for commuting to work and promoting sustainable mobility. Since August 2021, employers in France have been required to inform and consult with their Social and Economic Committees on the environmental implications of business decisions affecting the workforce. This gives employee representatives a new environmental protection role.