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Virtuālā Apaļā Galda diskusija DARBASPĒKS un NODARBINĀTĪBA 2021

Virtuālā Apaļā Galda diskusija DARBASPĒKS un NODARBINĀTĪBA 2021
The Virtual Round Table ir globālās platformas Corporate Live Wire radīta iniciatīva, kuras mērķis ir apvienot digitālā platformā vairākus starptautisku uzņēmumu vadītājus un līderus, dažādu aktuālu uzņēmējdarbības un ar to saistītu tēmu apspriešanai. Šajā apaļā galda diskusijā, seši darba tiesību eksperti no Malaizijas, Nīderlandes, ASV, Venecuēlas un Latvijas, apspriež COVID-19 radītās sekas darbaspēka un nodarbinātības sektoros, kā arī dalās ar padomiem, ieteikumiem un praktiskiem piemēriem tādos jautājumos kā disciplinārlietu ierosināšana, garīgā veselība darba vietā, mediācija un citās tēmās. Lepojamies, ka šajā diskusijā piedalās mūsu biroja zvērināta advokāta palīgs  Liene Pommere.


James Drakeford Editor In Chief

James Drakeford

Editor In Chief
This roundtable discusses the key labour & employment implications regarding COVID-19 as well as outlining best practice advice on a wide range of key topics such as undertaking disciplinary actions, mental health in the work place, mediation, and more. Featured countries are: Ireland, Latvia, Malaysia, Netherlands, United States, and Venezuela.

Meet The Experts

Edith N. Nordmann

Edith N. Nordmann

ACG International
Edith N. Nordmann is an experienced corporate and commercial litigator, has an expert qualification in employment law and is an international ADR certified mediator. She is specialized in cross border business transactions taking into consideration not only the different legal systems but also being acquainted with the various cultural differences that can make or break a deal.
As a public speaker she has shared this knowledge on various international conferences. She was awarded “Women of the Decade in Law & Social change” by the Women Economic Forum in 2017. As Managing Partner of At-torney Consulting Group International (ACG International), she can combine all these skills and expertise for the benefit of her interna-tional clients. By using deep-seated local knowledge and proven (international) networks across practice areas and borders, she assists her clients in getting deals done and finding solutions that achieve the best results for their actual needs. Being fluent in German (native speaker), English, Dutch, French and Italian and understanding difference in mentality, culture and legal systems across many different cultures and countries, she is able to help her clients in a unique way. Next to her professional career Edith engages in many charitable and social organisations using her professional expertise, not only help-ing others but also empowering them in their endeavours.
+31 20 800 64 00
Laura Reid

Laura Reid

Anne O Connell Solicitors
Laura is a Senior Associate with Anne O’Connell Solicitors (AOC Solicitors). She is a specialist employment lawyer. She ad- vises a wide range of employer clients and a number of senior executive employees.
AOC Solicitors is a leading award-winning firm providing expert employment law advice tailored to each client’s unique requirements. The firm offers a full suite of employment law services advising private and public sector employers, international employers and a number of executive level employees on contentious and non-contentious employment law issues. The firm is ranked as a Leading Irish Employment Law Firm by Legal500.
+353 (0) 1 211 8434
Suganthi Singam

Suganthi Singam

Shearn Delamore
Employment related legal issues and workplace strategic areas, addressing both contentious and non-contentious mat-ters. In particular for newly incorporated companies and foreign investments in Malaysia, she advises on the drafting of employment agreements, policies and handbooks. She also trains employers to manage misconduct issues and poor per-formance in employees, advises on issues relating to employee stock option schemes, share awards, prepares panel members for domestic inquiries and trains personnel on how to conduct domestic inquiries.
For corporate acquisitions and mergers, Suganthi provides strategic guidance in dealing with the employment issues that arise. She provides legal counsel in relation to business acquisitions, reorganisations, and voluntary and mutual separation schemes, harmonisation of employ-ment terms and retention of key management. In relation to workplace risk management and safety, she provides legal advice on occupa-tional health and safety issues as well as sexual harassment policies and procedures. She also handles trade union recognition issues, labour disputes and strikes.
+603 20272829
Juan Carlos Pró-Rísquez - Dentons

Juan Carlos Pró-Rísquez

Dr. Pro-Rísquez is a frequent guest speaker and has been invited to speak on current anticorruption and labor and employment developments in Venezuela and Latin America by highly respected institutions in Venezuela and abroad, including the Venezuelan American Chamber of Commerce (VenAmcham), VenEconomy, FedEuropa, IESA, the Venezuelan British Chamber of Commerce, the International Organization of Labour Lawyers, the International Institute for Human Resources (ANRI), International Bar Association (IBA), American Bar Association (ABA) and public and private universities. He has also given numerous in-house seminars for clients.

+58 212 276 0008
Liene Pommere - Rasa, Esenvalds and Radziņš

Liene Pommere

Rasa, Esenvalds and Radziņš
In 2011, Liene Pommere, an assistant sworn advocate, obtained a bachelor’s degree in social sciences in law at the Faculty of Law of the University of Latvia, and in 2014 a professional master’s degree in law and a lawyer’s qualification. During her studies, she worked in the Student Self-Government of the Faculty of Law of the University of Latvia, including chairing the cultural and academic commission, as well as being a member of the Council of the Faculty of Law of the University of Latvia and the Study Program Council.

+371 67280685
Roy A. Ginsburg - Jones Day

Roy A. Ginsburg

Jones Day
Roy A. Ginsburg is a Partner in Jones Day’s L&E practice. Roy, who has practiced for 38 years, and three other Partners started Jones Day’s Minneapolis office in June 2016. It has since grown to 38 attorneys. Roy’s national defense practice encompasses all types of employment litigation and related business torts (including fi-duciary duty and trade secret litigation). Roy is a two-time selectee as a Minnesota Attorney of the Year, and has received many other awards (Client Choice Award, “Author of the Year, General,” “Author of the Year, L&E,.” He is listed in Chambers USA, Best Lawyers, Super Lawyers, the Legal 500 and other comparable publications.

+1 612 217 8847
Labour & Employment 2021 – virtual round table

Q1. Can you outline the current labour market conditions in your jurisdiction?

  • Juan Carlos   Pró-Rísquez
    Juan Carlos Pró-Rísquez

There are three main sources of labour law in Venezuela:


The Constitution establishes the fundamental rights applicable to employment law in Venezuela. These rights include the following, among others:

  • the right to work;
  • the freedom to work in a job chosen by the employee;
  • the right to be part of a union; and
  • the right of employees to negotiate collective bargaining agreements with their employers.

Labour Law:

On 7 May 2012, the Special Official Gazette No. 6,076 published Decree No. 8,938, the Organic Labour Law for Male and Female Workers (Ley Orgánica del Trabajo, los Trabajadores y las Trabajadores) (Labour Law), which repealed the prior Organic Labour Law. The new Labour Law entered into force on the date of its publication in the Official Gazette. The Labour Law brought important changes on important matters such as the following:

  • retroactivity of severance payments;
  • reduction of the workday;
  • extension of the statute of limitations period;
  • determination of illegal outsourcing and its prohibition;
  • reinforcement of job stability;
  • extension of the list of workers protected by a bar against dismissal;
  • increase of days of salary granted as vacation bonus and profit-sharing;
  • extension of maternity and paternity leave; and
  • changes to the penalty system.

The Labour Law currently is the central legislative source of employment regulation in Venezuela. The Labour Law expressly recognises in Article 26 the right of all persons to employment. The freedom of each person to pursue his or her preferred activity is guaranteed, as long as the activity is not otherwise prohibited by law. It is prohibited to impede the work of others or compel them to work against their will (article 30 and 31). Under the Labor Law, employment is not only a right but also a duty. All capable persons are charged with a duty to work in order to maintain themselves, and the Law reiterates and explains the constitutional duty of the state to main-tain high levels of employment (Article 26).

International Sources:

Venezuela is a member of the International Labour Organization (ILO). The ILO establishes minimum labour standards for its members through the adoption of conventions and recommendations. Venezuela has adopted ILO conventions regarding maternity rights, union rights, free association rights, wages, and profit-sharing.

  • Edith N. Nordmann
    Edith N. Nordmann

Labour market update: The figures for Q3-2020 were in many respects worse than those for Q2, but com-pared to previous crises/periods of economic downturn, the Dutch labour market is still in good shape.

Labour market activity: The extent to which the Dutch labour force is actively looking for a job fell again in Q3-2020 compared to the previous quarter (-8,000 persons). Compared to Q3-2019, there is a large decline (-93,000). Although there is an increase in people looking for other work because unemployment is rising, people with a job (by far the largest group) have become less active. Just over one in nine people in the Dutch labour force (11.4%) is actively look-ing for a new job. We also see that the proportion of people who are not looking for (other) work at all has increased (41.1%; +0.7%). In contrast, the latent part in particular has decreased (47.5%; -0.6%). The labour market activity differs strongly per occupation.

Job changes: We also see a decrease in the number of job changes. Compared to last year, the 19.0% that found other/new work means a decrease of 32,000. Compared to the previous quarter, the decrease of 44,000 is even larger. With a longer period of declining economic growth (or contraction) and rising unemployment, the number of job changes is likely to decline further. There are fewer job openings and mobility is declining (the aforementioned decline in labour market activity among employed people).

Sourcing pressure: Sourcing pressures also decreased by 31.5% in Q3-2020. Both compared to last year (32.5%) and compared to Q2-2020 (32.1%). Just over three in 10 people in the Dutch labour force were approached at least once a quarter by an employer or agency for a new job. Sourcing pressure is an important indicator of scarcity on the Dutch labour market.

Unemployment: Unemployment has risen as a result of COVID-19. The increase at the beginning of the summer was particularly large. Nevertheless, the unemployment rate is still low at 4.4%. In September, the CBS (Statistics Nether-lands) even recorded a slight fall in unemployment. Unemployment is likely to continue to rise in the coming months, despite all the emergency and support measures taken by the public authorities. In its most recent forecast (Macro Economic Outlook 2021), the CPB (Netherlands Bureau for Economic Policy Analysis) foresees an increase in unemploy-ment to 4.3% in 2020 (compared to 3.4% in 2019). In 2021, the unemployment rate could rise further to 5.9%. This is still relatively low. By comparison, during the previous crisis, unemployment was above seven per cent at its peak (2013/2014).

Expected job search time: After a continuous decline of almost seven years, the expected job search time increased slightly in Q3-2020. This search duration is based on the period of time that people themselves indicate they need to find new employment. It can be seen as a confidence indicator of employees in the labour market. Incidentally, at 3.9 months, the expected search duration is still very low.

Flex workers: The proportion of flex workers who expect to get a permanent contract at the end of their current flexible contract fell again in Q3-2020. Nevertheless, the percentage (37%) is still high compared to previous years. The proportion of jobseekers who immediately got a permanent contract also decreased further, after a substantial increase in Q1-2020 (probably as a result of the introduction of the WAB (Balanced Labour Market Act)). Despite the decline, almost four out of 10 jobseekers immediately got a permanent contract in the third quarter.

Vacancies: According to Statistics Netherlands, more than 1.2 million new vacancies arose in 2019. Never before have so many new vacancies arisen in a single year. The vacancy rate (the number of vacancies compared to the number of employees’ jobs) also reached a new record at 14.8%. Even in 2007 – just before the crisis – the vacancy rate was not so high (14.3%), while the economy grew by 3.8% that year, employment grew by 2.9% and unemployment was very low at 4.2%. CPB’s most recent forecast on the impact of COVID-19 on the Dutch economy (Macro Economische Verken-ning 2021) has been included in our vacancy model. It is expected that the number of vacancies will fall substantially in 2020. The expected 695,000 vacancies will almost halve compared to the nearly 1.3 million vacancies in 2019. From 2021 onwards, the number of vacancies is expected to rise again to around 1,000,000. For 2023, the ‘normal growth path’ is assumed (1.5% economic growth, 4.3% unemployment). The year 2022 is seen in this prognosis as a ‘year of transition’.

Labour & Employment 2021 – virtual round table

Q2. Have there been any recent regulatory changes or interesting developments?

  • Liene Pommere
    Liene Pommere

In the past three years, the Labour Law has been amended several times, changing regulations on issues such as overtime pay, labour protection rules for adoptive parents, and implementing regulations regarding the re-structuring of the administrative liability system in Latvia.

A significant amendment was made in 2018 obliging employers to indicate the gross salary or the available range of-fered for the particular position in the job advertisement. This requirement is aimed to promote equalisation of wage levels for similar positions in the labour market as well as reduce discrimination with regard to pay, based on any of the discriminatory factors, such as gender, age, nationality etc.

Perhaps one of the most interesting developments regarding employment regulations is the judgement of the Consti-tutional Court of the Republic of Latvia passed on 12 November 2020 regarding the rights of the same-sex life partner of a child’s biological mother to receive a paid leave from work due to the birth of the child. Such rights in the Labour Law are expressly awarded to the child’s father. The Constitutional court has ruled that the Labour Law regulation not offering the same protection to the same-sex life partner of a child’s biological mother violates the human rights to family protection. The Labour Law clause to the extent that it violates such rights to family protection has been de-clared invalid as of 1 June 2022. This is the first judgement of the Constitutional Court of the Republic of Latvia towards safeguarding the rights of family protection of the same-sex life partner.

Some specific regulations have been passed due to the COVID-19 crises. For example, employers are entitled to de-crease the remuneration for an idle time by up to 30% to safeguard the business and workplaces; in case of collective agreements, the working hours of employees can be cut due to temporary decline in production.

Amendments in the Labour Law are currently being developed with regards to the implementation of the Directive (EU) 2018/957 of the European Parliament and of the Council of 28 June 2018, amending Directive 96/71/EC concern-ing the posting of workers in the framework of the provision of services.

  • Edith N. Nordmann
    Edith N. Nordmann

In addition to the specific COVID-19 measures, three prominent legislative proposals are worth mention-ing here:

  • a change in the wording of when the employee is entitled to get paid;
  • the Normalisation of the Legal Status of Civil Servants Act (WNRA);
  • the amended “Wet Medezeggenschap Cliëntenraad Zorginstellingen 2018” (Wmcz 2018);
  • The Labour Market Balancing Act (WAB).

Before 1 January 2020 the wording was “no labour no pay”. As of the 1 January, the wording of the law has been changed to “the employee gets paid salary unless the non-performance of the labour is for full risk and account of the employee”. This puts the burden of proof on the employer (even though the lawmaker did not intend to do that).

In particular, the WNRA (law on the normalisation of the legal status of civil servants) – in which almost all civil serv-ants had their appointment changed as of 1 January 2020 to an “ordinary” civil law employment contract – is bringing about a major change within the public sector. The WAB can be seen as a correction to the Work and Security Act (“Wwz”) and should ensure that it now really becomes more attractive for employers to offer employees a permanent contract and that employees with a flexible employment contract are given more security. The question is whether that has been achieved.

The Wmcz 2018 (Healthcare Institutions Client Council Participation Act) is intended to strengthen the position of cli-ent councils and, at the same time, to offer more tailor-made solutions. Although this has less to do with employment law, it has all the more to do with employee participation and is therefore relevant to these developments in 2020.

Finally, it is still unclear how to proceed with the Deregulation Assessment of Employment Relations Act (DBA Act), i.e. the tax assessment of contracts with self-employed persons. The DBA Act – the successor to the VAR (Declaration on the employment relationship) – has not brought the clarity it was intended to bring. The Cabinet has therefore de-cided to replace the Act. The aim is for the new measures to enter into force on 1 January 2021. Until then, the DBA Act will be in force. Incidentally, it will only be enforced if there is evident abuse in the context of bogus self-employment.

  • Laura Reid
    Laura Reid

The decision of the Irish High Court in the case Zalewski v Workplace Relations Commission [2020] IEHC 178 hand-ed down in April. The case involves a constitutional challenge to the statutory framework within which most statu-tory employment law claims in Ireland are heard and adjudicated upon. The Irish High Court rejected Mr Zalewski’s allegations of unconstitutionality. However, that decision is currently under appeal before the Supreme Court and is definitely one to watch given the impact a finding of unconstitutionality would have on the entire system of litigating statutory employment law claims in Ireland.

There has also been a significant development around Sectoral Employment Orders (SEOs). SEOs are a type of second-ary legislation signed into law by the Irish Minister for Business Enterprise and Innovation after they have first been negotiated through collective bargaining and recommended by the Irish Labour Court. SEOs are industry specific. There are currently SEOs in place in relation to the terms and conditions of employment in the electrical sector, the construction sector, and the mechanical engineering building services contracting sector. In June, the High Court determined that the section of legislation that provides for the making of SEO’s is unconstitutional. The Government is appealing the decision to the Supreme Court. This is another space to watch in 2021.

Labour & Employment 2021 – virtual round table

Q3. How has the COVID-19 pandemic impacted the labour and employment landscape in your jurisdiction?

  • Suganthi Singam
    Suganthi Singam

The global pandemic caused by COVID-19 has presented challenges which many employers were unpre-pared for. As a result, it has made employers re-evaluate the way in which their businesses are run and the depend-ence on not only resources but the environment in which services are delivered.

Although it cannot amount to a breach of contract on the part of the employer for the inability to provide work given that this was on account of extraneous factors, the failure to pay salaries during the government imposed Movement Control Order in Malaysia would certainly amount to a breach of its contractual obligations save where there are express contractual provisions enabling it to do so. The reality of the situation though is that employment contracts would not have catered for such a situation as the situation brought about by COVID-19 was unprecedented and certainly not one which was foreseeable. Moving forward employers will incorporate such clauses in employment contracts as lessons learnt from past experiences and move away from the traditional employment contracts that parties have become accustomed to.

What employees need to recognise equally is that whilst there is the contractual obligation to pay salaries even dur-ing the period of the Movement Control Order, if an employer is prohibited from running his operations, without a source of revenue, how is the employer expected to pay salaries? The larger organisations will be able to withstand such measures however not all are on equal footing. Over a prolonged period of time, even larger organisations will feel the impact of such restrictions.

Employees must equally recognise that they must be realistic in their expectations. Whilst one can hold strictly to contractual rights under the employment contract, if an employer has no revenue to pay towards salaries, how is the employer expected to fulfil its contractual obligations towards the payments of salaries? In desperate times like these, employees must have a change of mind set; the need to be practical and flexible towards the situation faced by the employers. Flexibility is paramount from both parties as stakeholders in the employment relationship.

  • Juan Carlos   Pró-Rísquez
    Juan Carlos Pró-Rísquez

On 13 March 2020, Nicolás Maduro enacted the Decree No. 4,160 declaring a nationwide alertness state based on social order circumstances seriously compromising the Venezuelan public health and safety. The Decree was adopted in order for the Executive to take urgent, effective and necessary measures of protection and preservation of the Venezuelan population health to mitigate and eradicate epidemic risks related to COVID-19 and potential strains, guaranteeing timely care (“Decree of Alertness State”). The Decree was published in Special Official Gazette No. 6,519 of 13 March 2020. There are numerous important employment and labour aspects of the decree, as outlined below.


Nationwide alertness state is declared in order for the Executive to be able to adopt urgent, effective and necessary measures of protection and preservation of the Venezuelan population health in order to mitigate and eradicate epi-demic risks related to the COVID-19 and potential strains, guaranteeing timely care of the arising cases.

Suspension of activities

Article 8 of the Decree of Alertness State establishes that Maduro may order suspension of activities in delimited re-gions and geographical areas. Such suspension also implies suspension of the labour activities whose performance is not possible under a remotely alternative, allowing the workers to render their services from home.

Exempted activities

The following activities shall not be subject to said suspension:

  • Establishments or entities of production and distribution of electricity, telephone and telecommunications, waste management and disposal and, in general, provision of residential public utilities.
  • Sale of fuel and lubricants.
  • Publics and private healthcare services providers in the nationwide health system: hospitals, community-level clinics, comprehensive care centers and other establishments providing such services.
  • Late-night drugstores and duly authorised sale of medicines.
  • Transfer and custody of valuables.
  • Companies selling short-live medicines and medical supplies, carbon dioxide (dry ice), oxygen (gas or needed liquid for the operation of care centres).
  • Activities associated to nationwide chain supply of perishable and nonperishable food.
  • Activities associated to the National Port System.
  • Activities associated to transport of drinking water and needed chemicals for making it drinkable (solid or liquid aluminum sulphate), aluminium polychloride, calcium hypochlorite or sodium (up to cylinders of 2,000lb or bot-tles of 150lb).
  • Sale and transport of gas for domestic use and fuel for ground transportation stations, ports and airports.
  • Production, processing, transformation, distribution and commercialization of perishable and nonperishable food, issuance of transportation bill of landing, monitoring and control of agri-food products, transportation and provision of agricultural consumables and agricultural crops, and all of those assuring the functioning of the Integral National System of Agri-food.

Mandatory use of face masks

Pursuant to Article 10 of the Decree of Alertness State, face masks covering mouth and nose are mandatory in the following cases:

  • Any type of public transportation by land, air or see, including metro system, metrobus, metrocable, cabletrain and trail systems.
  • Air, land and see terminals.
  • Public spaces, where a significant number of persons attends due to the nature of its activities.
  • Clinics, hospitals, health centres, community-level clinics, physician offices, laboratories, and other establish-ments providing public or private healthcare services, and adjacent areas of such medical offices.
  • Supermarkets and other non-described public places.

Entry into force

The Decree of Alertness State shall remain in force for 30 days as of 13 March 2020 extendable for a period of the same duration until there is an adequate mitigation of the pandemic COVID-19 or potential strains, and its contagious fac-tors controlled. Current extension last until 13 May 2020.

  • Liene Pommere
    Liene Pommere

The continuous and increasing spread of COVID-19 has caused the government of the Republic of Latvia to impose a list of limitations for a wide range of businesses, which undoubtedly has vastly impacted the labour and employment landscape.

The highly undermined tourism industry is now joined by the public catering industry, entertainment, beauty, and wellness industries, etc. As of 6 November 2020, any types of public catering establishments are only allowed to serve food for takeaway and delivery, suspending any on-site catering services. Most of the beauty and wellness services are suspended, and any on-site cultural and entertainment events are suspended. These are only a few limitations im-posed by the government order. The unemployment level has increased by 2.1% (or aprox.20,800) comparing to the corresponding period last year (according to the data provided by the Central Statistical Bureau of Latvia).

However, even the business areas less affected by government limitations and health threats caused by COVID-19 are changing the general practices regarding employment. The current circumstances have led employers to re-evaluate the efficiency of the business processes and evaluate the efficiency and contribution of each position within the busi-ness as well as each individual employee.

This could be construed as the positive side effect of the current circumstances. As legal service providers, we always encourage businesses to re-evaluate, and if needed restructure business processes not only through commercial busi-ness restructuring but also streamlining costs, labour costs being amongst the highest.

The business rule “survival of the fittest” could be considered timeless. It is especially applicable in the current circum-stances – being able to adapt to the world changing due to this pandemic, will be a crucial aspect allowing a business to survive and flourish or the opposite. This highly affects employment as well. Some previously man-operated proce-dures must be automised. Remote work is more and more implemented and accepted.

  • Edith N. Nordmann
    Edith N. Nordmann

The focus of government COVID-19 aid is on preserving jobs. The first reimbursements were exclusively aimed at reimbursing wages and initially the employers had to pay the amount back – with an additional penalty on top of the amount – if employees would be let go after all. This has now been abandoned.

In fact, the redundancies only follow at a later point in time when a company really can no longer cope financially. The biggest problems are with freelancers who are not insured and who receive fewer orders in connection with the economic crisis due to COVID-19. But that also differs per sector. The Dutch employment law has no equivalent to furlough – funnily enough the word furlough itself comes from Dutch word “verlof”.

When must the employer continue to pay the wages?

If the employee is ill or is found to be infected and therefore unable to carry out his work, the salary will have to be continued to be paid (for the duration of 104 weeks!). It is also up to the company doctor to determine the (medical) situation of the employee. If an employee is in quarantine, if he is only ‘a little bit fluey’ or if he does not come to work due to fear of infection, it becomes more complicated. The parties will then fall back on Section 7:627 of the Dutch Civil Code, which stipulates: “No work, but wages, unless the non-performance of work must be at the expense of the employee”. This may be the case when an employee (deliberately) travels to a risk area.

Quarantine & wages

If an employee cannot work because he is in quarantine, he is in fact following a government measure or instruction and his absence cannot be at his expense. The salary of this employee will have to be continued.

Economic consequences for employers

If the coronavirus has economic consequences for the company – due to the absence of customers and/or supply problems of goods – this falls under the ‘entrepreneurial risk’. Even if there is no work, the employees retain their right to wages. Due to the COVID-19 government measures, the focus was strongly on saving labour.

  • Laura Reid
    Laura Reid

It has unfortunately led to a widespread trend of layoffs, reduced hours and redundancies in some sectors of the Irish economy. Like many other countries, some of the sectors worst affected have been the retail and hospitality sectors. On the other hand, some sectors such as technology have continued to do well.

It also necessitated a major country-wide shift to home working by large bodies of Irish workers – literally overnight. A side effect of this appears to be a shift in thinking by many Irish employers and employees in favour of more long-term home working arrangements. Some well-known larger Irish employers have even given up portions of their office space in prime city centre locations in anticipation of a long-term move towards home working. The need for so many people to work from home has also brought with it the publication of significantly more governmental guidance on the area of home working.

The overnight nature of the shift to home working and the closure of Ireland’s crèches and schools during the earlier months of the pandemic also necessitated an overnight move in many cases to more flexible working arrangements. The fact that many workers now had demanding home responsibilities to tend to during the normal working day (e.g. caring for children or a vulnerable adult) meant that in many cases employees could no longer work their usual standard hours and flexibility needed to be facilitated so that those persons could balance the competing demands of work and home life. Similar to home working arrangements, it would seem unlikely that all such workers will be willing to return in full to the rigid working hours they were required to keep prior to the COVID-19 pandemic. Therefore, it would seem likely that the trend of flexible working will continue into the future to at least some extent.

  • Roy A. Ginsburg
    Roy A. Ginsburg

The initial definitional challenge of this question is to determine the scope of the word “jurisdiction.” As you know, the U.S. represents a wide variety of overlapping federal, state and local jurisdictions, many of which are ap-proaching the COVID-19 pandemic (the “pandemic”) in dramatically different ways. Charitably put, from the time the pandemic started through 19 January 2021, the federal government approached the pandemic inconsistently, with a disappointing disregard for science. Consequently, the U.S. has the world’s highest death toll (more than 400,000 – roughly the same number of U.S. servicemen who died in WW II), and more than 23 million infected individuals. Not-withstanding the best efforts of the Administration starting on 20 January 2021, the number of COVID-related deaths will likely reach 500,000 sometime in February.

To address the failings of the federal government, some states have responded effectively; others have not, refusing to mandate mask requirements in public (even indoors). When some local jurisdictions have attempted to counter-balance the inadequate response of certain states’ leaders – by imposing more stringent pandemic measures – those efforts have at times been repudiated and nullified by the “leadership” at the state level. The bottom line is that in the U.S., the regulations regarding the pandemic have been a confusing and inconsistent mess.

The lack of a coherent and cohesive federal policy, coupled with widely divergent approaches among the states, has had a dramatic impact on the employment landscape in the U.S. The nation’s unemployment rate in December 2020 was approximately 6.7%, roughly double the rate from 12 months before, but a significant improvement from the nearly 15% rate in April 2020, when the pandemic emerged as an economic, as well as a health, threat. Unfortunately, the current trend lines are not positive – during the difficult and disorganised roll-out of the vaccines, the unemploy-ment numbers have been heading in the wrong direction. In December 2020 alone, nearly 1,000,000 workers filed for unemployment compensation.

The pandemic also has had dramatically different impacts on different industries. Obviously, the travel industry (air-lines/hotels/cruise ships/etc.) has been devastated. The closely associated hospitality industry (hotels/restaurants/etc.) also has been crushed by the pandemic, particularly in locales where indoor dining has been prohibited com-pletely. The AARP reports that in the leisure and hospitality industries, the unemployment rate was at 16.7% in Decem-ber 2020 (compared to five per cent a year earlier). Millions of restaurant workers have lost their jobs. Similarly, fitness clubs, gyms, and similar companies have been hard hit, as depending on the state or locality, their operations have been shuttered completely or severe restrictions have been imposed on attendance.

Just as the pandemic has dramatically impacted different industries, it has changed the way in which individuals work. Wherever possible, individuals (including this author) have been working remotely, often for a protracted period. Of course, this workplace trend has significantly benefited some of the tech companies that presciently recognised the way in which the pandemic might affect the workplace. Zoom, for example, which conducted an IPO in 2019, saw its shares rise in value from $36/share to $337/share since its IPO, for a current market cap of approximately $100 billion. On 12 January 2021, the company announced that it would conduct a secondary offering, with the goal of raising an additional $1.5 billion, designed to expand and enhance its platform.

Workers in other industries, however, have not been as fortunate. For example, workers in the meat and poultry pro-cessing industries do not have the option to work from home. Moreover, given the tight working conditions in many of these facilities, the CDC reports that workers in this industry have suffered disproportionally in comparison to the general population, with exceptionally high rates of infection and death.

To understand the impact of COVID-19 on the employment landscape, several critical follow-up inquiries must be explored, involving: (i) the location of the business (complicated by the fact that many businesses operate throughout the nation and internationally); (ii) the positions of the state governments regarding the pandemic and the nature of the restrictions imposed by those governments; (iii) the positions of the local authorities regarding the pandemic, coupled with the positions of the state governments in over-riding restrictions the local governments impose; (iv) the nature of the industry and the effects of COVID-19 on that industry; (v) whether the industry is one which has been decimated by, or benefited from, the pandemic; and (vi) whether the industry is one where employees largely have the flexibility to work remotely if they choose. An assessment of the impact of the pandemic on businesses and their workforces requires thorough and nuanced analyses. And, as addressed further below, the effect of the pandemic will be impacted by the efficacy of the vaccines and the speed and effectiveness of their roll-out.

Labour & Employment 2021 – virtual round table

Q4. How do you predict the COVID-19 pandemic will impact the workplace going forward? Will remote working become the new normal?

  • Juan Carlos   Pró-Rísquez
    Juan Carlos Pró-Rísquez

Venezuelan legislation imposes a duty for employers to guarantee safe working conditions, establishing an employer’s strict liability on matters of health and labour safety. This means that workers are protected for work-related incapacity, even if their employer has complied with all laws, and has committed no intentional, negligent or imprudent act. Therefore, employers have a duty of care towards the health of their workers as it pertains to the performance of their duties and suitable for the company’s processes.

Specifically, employers must take care of matters concerning the conditions of health, safety, and wellbeing at work by (i) promoting safe work; (ii) preventing work accidents and occupational diseases; (iii) compensating damages; and (iv) promoting free time, rest, and social tourism.

It is important to take into account that, although the coronavirus is a common illness, if a worker’s conditions result aggravated due to the render of her/his services, such worsening may be considered as an occupational illness.

  • Suganthi Singam
    Suganthi Singam
Employers as well as employees will weather through this pandemic or a possible economic recession with the cooperation and mutual trust of both parties. What continues to be vital is openness, trust and commitment on the part of both affected parties, employers and employees to find a balance in interests. The months to come and thereafter will be interesting times in the employment landscape as the time is ripe for solutions out of the box.

  • Liene Pommere
    Liene Pommere

As stated above, for the business to not just survive but flourish an ability to adapt to the new and chang-ing circumstances will be crucial. We can only hope that sooner rather than later the world will overcome this pan-demic, but it will have changed the view of the business organisation, including labour structure, in the future.

According to the governmental limitations imposed in Latvia during the emergency state announced due to COV-ID-19, employers are ordered to provide employees with opportunities for remote work, if the specifics of the work allow it and the employee has opportunities to fully perform work duties at home. A large portion of office work previously conducted on-sight is now being handled remotely. We can observe that office work orientated businesses move to smaller premises and organise at least part of the work remotely, often implementing office working days “on shifts”, so to speak, where employees have to be in the office only a few days a week, doing work remotely the remainder of the time.

Nonetheless, an issue arising regarding prolonged remote work is labour safety. According to the latest changes in the Labour Protection Law of the Republic of Latvia, the employer, as well as the employee, has certain obligations regard-ing ensuring labour safety requirements in case of remote work, such as cooperation in the evaluation of the working environment risks. Interestingly, these amendments in the Labour Protection Law were passed by the parliament before the discovery of COVID-19 (in October 2019), stating that the new regulations take effect from 1 July 2020. The amendments in the law were drafted not knowing how necessary they will be in 2020 and beyond.

  • Edith N. Nordmann
    Edith N. Nordmann

Remote working is possible for many but not for all companies. Big companies, especially in the service industry, have already announced that after COVID-19 remote working will be normal for 75% of the workforce and or for 75% of the time. Also travelling will be reduced after COVID-19 saving time and money.

Restaurants and retail are hit very hard by COVID-measurements in The Netherlands. Many young and unskilled peo-ple have been working and have lost their jobs and their income (amongst them many students).

This group of people are being faced with unemployment and will also have a hard time after COVID-19 because many restaurants and retail will not make it through the crisis without opening new job opportunities for these employees and/or freelancers.

  • Roy A. Ginsburg
    Roy A. Ginsburg

There can be little doubt that the pandemic will continue to have dramatic impacts on the workplace in 2021 and beyond. As described above, the serious health risks associated with COVID-19 have resulted in many com-panies allowing their employees to work from home, where the nature of the work performed creates this possibility. Working remotely is likely to continue throughout much of 2021 (at least), as the roll-out of the vaccines has pro-gressed far more slowly than anticipated. Further, as new strains of the novel coronavirus emerge, additional medical evaluation will be needed to determine whether the vaccines are effective against these mutations.

Even assuming the problems with the vaccine roll-out are addressed and the vaccines are effective against mutated virus strains, companies are likely to evaluate whether the experience of the last 12 months should change the way their employees work. Remote working arrangements have been more successful than many would have predicted and companies will need to determine whether to allow this approach to continue indefinitely.

Another challenging issue that companies will need to address is whether it is advisable to mandate employee vacci-nations, either to return to work or even, to continue employment. Again, this is a nuanced analysis – one size does not fit all. Careful consideration will need to be given to the nature of the job, the amount of interaction employees have with each other and members of the public (particularly vulnerable members of the public), whether the employee is an “essential” worker, the risks associated with allowing an unvaccinated employee to return to work, etc. For example, different approaches are warranted for health care workers and those working in nursing homes, versus an employee working outside on golf course maintenance.

Complicating this analysis are both federal and state employment laws. Focusing just on the federal statutes for the purpose of this analysis, mandatory vaccines implicate potential religious discrimination issues (Title VII, The Federal Anti-Discrimination Statute passed in 1964, includes, as a protected category, discrimination on the basis of religion). It remains to be seen how employers (and ultimately, the courts) will handle arguments that a vaccine is a violation of one’s genuinely held religious beliefs. Similarly, mandating vaccines may also implicate difficult questions under the Americans with Disabilities Act (“ADA”). Since the ADA requires (with limits) employers to provide “reasonable accommodations” to employees with disabilities, employees may well contend that, in lieu of a vaccine, a reasonable accommodation would be a remote working arrangement. Given that this approach has been utilised in many indus-tries for approximately one year, it may be difficult for employers to argue persuasively that this approach constitutes an undue hardship. Again, these issues have yet to play out in the courts. Complicating this situation further is the fact that the two approved vaccines have been approved under “Emergency Use Authorisations.” How that characterisa-tion will impact any judicial analysis of either Title VII or ADA claims is presently unknown.

Labour & Employment 2021 – virtual round table

Q5. What pressures will employment lawyers and tribunal systems face as a result of the COVID-19 pandemic?

  • Liene Pommere
    Liene Pommere

The governmental limitations imposed in relation to COVID-19 has forced employers to terminate labour contracts, including carrying out procedures of collective redundancy, and in many cases – reorganise or even liqui-date the business.

The workload regarding assistance in employment termination for labour lawyers has certainly increased, and right-fully so. Carrying out proper procedures of termination of labour contracts is crucial to avoid litigation initiated by the aggrieved employee. Failure to follow procedures prescribed by law can result in an employer’s obligation to pay compensation for forced absence from work – disburse average earnings for the whole period of forced absence from work during litigation, which can last for months and even years.

This also places pressure on the courts. Labour disputes are not adjudicated by specialised courts in Latvia, these disputes are viewed by the court of general jurisdiction. Even though in practice courts prioritise labour disputes as ur-gent, there are no specific terms in which the dispute must be adjudicated. During the emergency state of COVID-19, the courts are limited in terms of viewing the cases in-person as is the general rule of the law. This undoubtedly makes the court’s job more difficult as labour cases often include witness statements and the need to clarify true facts of the case, which is always more efficient in-person. Organising court hearings by video conference via MS Teams is becom-ing more and more common, where previously a court hearing using a video conference was used only in exceptional case and required the litigators to attend their local courthouse.

Many employers seek less terminal solutions by temporarily suspending the business until after COVID-19 is resolved and governmental limitations lifted. This is as opposed to terminating employment contracts and liquidating parts of the business or the business as a whole. The Labour Law of Latvia excludes a possibility of suspension without pay imposed by the employer. The only solution provided by the Labour Law is unpaid leave, which must be voluntary by the employee. In other instances of idle time, the employee is entitled to receive their full salary for the period where they are not provided with work, regardless on whether the idle time is caused directly by the employer or external circumstances. Therefore, employers seek the assistance of employment lawyers to find legal solutions to keep the business alive.

It should be mentioned that the government of the Republic of Latvia has implemented certain support measures for businesses most affected by the COVID-19 crises such as allowances and tax deferrals. The support measure most related to employment is furlough allowance, an allowance awarded by the state to employees for an idle time caused by limitations of COVID-19, as well as aid for wage subsidy to compensate for remuneration to part-time workers. The decision to refuse to grant the state support may be contested and appealed, which creates a new wave of potential administrative court cases.

  • Edith N. Nordmann
    Edith N. Nordmann

Employees are well protected under Dutch employment law. But as a result of the COVID-19 pandemic there are less timeslots for court hearings which means that it takes longer to schedule a court hearing even in case of unfair dismissal.

As a result, employers are dismissing employees with immediate effect, causing employees to remain without their salary and also without receiving any benefits, and have to wait much longer for court hearings than usual – without any income.

  • Roy A. Ginsburg
    Roy A. Ginsburg

At least three critical issues for employment lawyers and tribunals have been implicated by the COV-ID-19 pandemic.

First, with respect to on-going disputes, the pandemic has resulted in a largely indefinite postponement of active litigation. Whether in a judicial or arbitral forum, judges and arbitrators alike are working diligently to determine how to handle the “new normal” – a context where it is inadvisable for individuals to gather in the same room for a trial or administrative hearing. Particularly now, when a more virulent and contagious variant of the virus appears to spreading rapidly, both practicing attorneys and judges are understandably reticent to gather together to partici-pate in an in-person hearing. So, for the immediate future, trials and evidentiary hearings of other types are mostly on hold. This not only has an obvious impact on matters that have had to be postponed, it will have comparable implications for the near (and even more distant) future. Dockets in many jurisdictions are backed up significantly. Combine this situation with the fact that criminal cases are prioritised over civil litigation and there could be long delays before civil cases are tried.

Second, the pandemic does not just affect trial dates, it affects the way in which litigation is conducted. Investi-gative interviews often have to be conducted remotely, which can diminish their effectiveness. Discovery, too, particularly depositions, is being conducted remotely. Few depositions are being conducted in person; remote, video-conferenced depositions are now the norm. This approach creates difficult (though not insurmountable) pro-cedural and substantive challenges. On the procedural side, this includes issues as mundane as ensuring adequate connectivity for all participants, including for example, a witness who may be participating in the process from his/her home. On the substantive side, this includes issues such as determining how exhibits and prior testimony will be handled. These issues can be resolved satisfactorily with forethought and planning, though they require a greater degree of cooperation among counsel.

With respect to non-dispositive and dispositive motion hearings, courts are employing a variety of different tech-niques. Some allow in-person hearings, typically with restrictions on the number of participants, as well as various barriers to protect the judges and participants from COVID-related risks. Other courts are requiring that all hearings be conducted remotely, which again raises some important issues that warrant consideration and planning. The bottom line is that litigation processes have changed and practitioners need to adapt to these changes.

Third, and this will unfold over time, there will be a variety of novel legal issues that relate to the pandemic. As de-scribed above, there will be difficult Title VII and ADA issues regarding how employers handle the vaccines. There will be disputes over whether employers took necessary precautions to ensure employees’ privacy is protected. There will be litigation over whether employers took appropriate steps to protect their employees from the risks of the novel coronavirus, including claims for wrongful death. There likely will be claims regarding how employers treated certain employee groups (e.g., employees over 60 with a co-morbidity) and whether there was discrimi-natory conduct toward individuals in these groups. There may be lawsuits regarding mass layoffs caused by the pandemic and whether employers have complied with the legal requirements regarding these layoffs. Litigation regarding all of these issues has already commenced and undoubtedly will increase in the future.

  • Laura Reid
    Laura Reid

Some of the immediately obvious pressures that employment lawyers and tribunal systems in Ireland will likely face are as follows: .

Delays in obtaining hearing dates:

The WRC, which is the body that hears the majority of statutory employment law claims at first instance in Ireland, and the Labour Court (which has appellate jurisdiction in relation to such claims) are already experiencing signifi-cant pressure as a result of the COVID-19 pandemic. Because of the physical distancing measures required in order to contain the spread of the virus, many physical hearings had to be cancelled and the hearing lists of both bodies ground to a halt during the earlier months of the pandemic. This has led to significant backlogs in cases for hearing.

Previously, virtual hearings had not been a feature of our normal framework for hearing employment related litiga-tion in Ireland. However, both the WRC and Labour Court have adapted quickly and both bodies have now imple-mented virtual/remote hearing processes. However, there will be instances where cases are not suitable for virtual hearings because the particular circumstances might mean one or other party could be deprived of a fair hearing if it was conducted virtually rather than in person. It is likely, even with the introduction of virtual hearings, that it is going to take time to clear the backlog of hearings that has arisen as a result of the Covid-19 pandemic.

Outdated rules on working time:

In circumstances where we are likely to see longer term remote and flexible working arrangements continuing in respect of many workers, a likely challenge for lawyers and employment law fora in Ireland, will be the issue of try-ing to reconcile such arrangements with the existing rules on working time outlined in the Organisation of Working Time Act 1997 (the Act). The Act places onerous obligations on employers for example, to create and keep detailed records of the working hours of all of their staff to include start times, finish times, break times etc. This is an obliga-tion that was already difficult for many employers to comply with when their full workforce was in the same place at the physical work premises working set hours. It becomes all the more difficult to navigate this issue when employ-ees are scattered all over and employers have no day to day visibility over what hours their employees are working.

Securing payment of awards where the employer is in financial difficulty:

Another issue that may arise for lawyers is the tricky scenario of trying to enforce WRC/Labour Court/Civil Court awards against employers in financial difficulty. An employee may have won their employment law claim but where the employer does not have the funds to pay it, this can give rise to complications that can in some cases result in barriers to the employee actually receiving payment of the award.

Q6. How can mental health issues be better addressed and managed in the workplace?

  • Suganthi Singam
    Suganthi Singam

In recent years, mental health related illnesses have become a heightened and pressing issue which has gained prominence in the workplace. Whilst there is more awareness of such illnesses it is unfortunately also intertwined with a stigma associated with anyone who is diagnosed as having a mental health related illness – the result individuals fail to obtain the required help. The lack of ability or knowledge to manage employees suffering from such illnesses has resulted in the failure to address the problem at source and as such the issue remaining. A large majority of those affected by poor mental health reflects that those having physical, psychological or behavioural symptoms of poor mental health attribute work as the primary cause. Consequently training is needed to educate superiors, line managers or human resource personnel for early identification and measures implemented to resolve issues at hand.

  • Liene Pommere
    Liene Pommere

Managing mental health issues in the workplace requires involvement and initiative of both employees and employer. From an employee perspective, it requires self-awareness, candidness, and respect. It also requires Employee Assistance Programmes (EAP) or another type of support implemented by the employer, but most importantly – pre-emptive measures to eliminate or at least decrease the cause of mental health issues caused by workplace stress and other factors.

Such pre-emptive measures would be:

  • balancing workload between employees to avoid overload of certain individuals;
  • understanding the needs of individual employees regarding workplace atmosphere, workload, and career opportu-nities, which can be achieved by periodic individual negotiations and setting individual goals;
  • a wellness specialist or an HR confidant made available to employees;
  • an open-door policy regarding employees’ initiative towards required changes in the workplace;
  • implementing a strict anti-mobbing and anti-bossing policy at the workplace.

The legal background in Latvia regarding mental health is rather vague. It is safe to say that a large portion of employers have not promoted mental health in the workplace as one of the priorities. However, the shift of generations is forcing employers to change their focus more towards the wellness of its employees. It is becoming a well-known business fact that happy employees make happy customers, which undoubtedly is directly linked to the matter of employees’ mental health. Furthermore, the case-law of Latvian courts regarding mobbing and bossing cases and related non-pecuniary damages has developed over the past few years pushing employers to see these problems as a reality and cause of employers’ li-ability towards its employees towards ensuring a safe work environment.

  • Edith N. Nordmann
    Edith N. Nordmann

It is an employer’s duty to ensure a safe working environment. It is therefore important that employers are aware of, and consciously deal with, the possible risks for their staff and customers. The measures to be taken may vary from one company to another. Hygiene measures are obvious, such as proper ventilation of rooms and the provision of disinfectants. It is also advisable to draw up a protocol on specific hygiene regulations and how to act in the event of a possible infection with the virus.

But what if the employee stays at home out of fear without real danger? In principle, this is not possible without conse-quences under employment law. The law does not have a ready-made solution for these specific situations, so the par-ties will have to fall back on article 7:611 of the Dutch Civil Code: “good employer and employee status”. This means that the parties must in all reasonableness discuss whether there is a reasonably substantiated suspicion of contamination.

Fear will not be sufficient (unless ‘sickening’) and the concrete facts and circumstances will have to be considered. If the absence turns out to be without real grounds, the employee is in principle also not entitled to salary – but based on the changed wording of the law (as per 1 January 2020) the employee gets paid even if he does not perform any work, un-less the not performing work is for full risk and account of the employee. This puts the burden of proof on the employer!

  • Laura Reid
    Laura Reid

Of late we have seen a big move in some sectors in Ireland towards the promotion of positive mental health in-cluding, for instance, within the legal services sector. Within the legal services sector there is now a much greater focus on educating young lawyers on the issue. Getting in early on in a person’s career to provide them with some tools to help them manage work related stress and other mental health related issues is one logical avenue for employers to think about looking at.

Leading by doing is another theme that comes across strong in the messages portrayed by some leading commenta-tors on this issue. For example, if industry leaders and people at senior management levels within organisations talk openly and honestly about the topic of mental health and particularly if they discuss their own experiences around the area, this will likely instil confidence in employees at other levels to do the same.

There is also the important consideration that not all employees have the same needs and employers who wish to have happy, motivated and engaged staff will likely fare better if they accept that different factors present stressors to different people and it is a matter of engaging with employees at an individual level so as to ascertain how best to support and resource them individually.

In addition to the above, the provision of counselling services to staff through the likes of employee assistance pro-grammes (EAP’s) can be an excellent step for an employer to take in order to better address and manage the issue of mental health in the workplace. However, in some cases even though such programmes exist within the workplace, employees have never been properly communicated with as to what exactly the purpose of those services are. A renewed focus on educating employees on the benefits of such programmes and encouraging use of them may be worthwhile in order to encourage uptake of such services, where available.

A number of high-profile employers have taken to more public arenas in recent years in order to demonstrate a com-mitment to the issue of promoting a more positive approach to mental health in the workplace. For instance, the “Mindful Business Charter” was launched in the UK in 2018. The charter is collaboration (initially) between leading banks and law firms committed to driving change in how we work. Becoming a signatory to something like this is another way in which an employer might be able to focus minds on the issue.

Q7. What are the most frequent mistakes made by employers when disciplining employees?

  • Liene Pommere
    Liene Pommere

The disciplinary measures, as well as procedures applicable to employees, are laid down in the Labour Law of the Republic of Latvia. These regulations are strict, exhaustive, and irrevocable. The most common mistake made by the employers is a deviation from the regulations of the law. In practice, this deviation can occur in various ways: (i) applying disciplinary measures not prescribed by the law; (ii) failing to ensure proper investigation; (iii) not producing relevant evidence on employee’s misconduct; as well as (iv) lacking sufficient substantiation for disciplinary measures imposed on the employee.

The core principle is that internal procedures and policies, employer’s orders, as well as collective agreements and the employment agreements cannot deteriorate the legal status (the scope of rights, obligations, and liability) of the employee in comparison to the regulations prescribed by the Labour Law. Therefore, ensuring that these documents comply with the requirements of the law is crucial.

There are still plenty of examples in practice where employers wrongly impose certain measures to discipline employ-ees, such as the contractual penalty for violations, salary reductions, demotion, suspension of employment, deduction from salary to cover employers’ losses etc. Most of these tools (with the exception of the contractual penalty) can be applied by following proper procedures in certain cases but cannot be used as a disciplinary penalty. For example, reduction of salary, being especially current now due to COVID-19 limitations on businesses, can be legally carried out by reorganising work positions.

Following proper procedures allows the employer to avoid unnecessary and costly court proceedings where the em-ployee has the grounds to appeal the employer’s decisions. It should be borne in mind that violations of procedure in disciplining employees might be construed as bossing and cause the employee to seek compensation for non-pecuniary damages in court.

  • Edith N. Nordmann
    Edith N. Nordmann

Employers should also be cognisant of the second fundamental requirement of due process and fair procedure (i.e. that the decision maker in the disciplinary process must be unbiased). The most basic example of a biased decision maker is where the person deciding the outcome of a disciplinary process is the same person who made the allega-tions. However, more nuanced scenarios can arise where the decision maker is deemed to be biased not because they are also the accuser but because for example they have some sort of vested interest in the outcome or have had some prior involvement in the matters at issue which makes it inappropriate for them to decide the outcome.

In addition to the above, employers can often fall into the trap of failing to follow their own written disciplinary poli-cies which gives easy ammunition to the employee to challenge the process. It is also quite common for an employer to have a written disciplinary policy in place that is not actually fit for purpose. For example, some disciplinary policies can be unnecessarily convoluted or contain unhelpful provisions which can make it all the more difficult for an em-ployer to get from the beginning to the end of a disciplinary process without their own procedures tripping them up.

  • Roy A. Ginsburg
    Roy A. Ginsburg

One of the most common mistakes employers make when disciplining employees occurs long before the actual discipline takes place. Simply put, employers fail to apprise the underperforming employee of identified prob-lems as they occur. Instead, the employer ignores the problematic behaviour or the performance deficiencies until the end of the year or until the problems have become so pronounced that the employer has no choice but to act. At that point, however, the employee will claim “surprise” that he/she is being disciplined at all. This context is exacerbated if during the interim period, the employee has received satisfactory (or even more enthusiastic) performance appraisals. This leads to the second common mistake.

Many managers find it difficult to express criticism of an underperforming employee or a person who engages in borderline-acceptable workplace behaviours. But it is essential that employers do so – thoughtfully, straightforwardly, and respectfully. The failure to do so creates problems when disciplinary action later is initiated. For example, if an employee has engaged in rude or insubordinate conduct that has gone unchecked, or if an employee has consistently underperformed his/her peers by whatever performance benchmarks the employer utilises, and the employee has received “satisfactory” or “above average” performance ratings on the company’s annual performance appraisal, later discipline becomes much more difficult to explain. In short, the employer should avoid creating disconnect between performance failings and the formal evaluation system. This provides the adversely affected employee (particularly if the discipline involves a reduction in compensation, a suspension, or a termination) with the argument that the “true motivation” for the disciplinary action (e.g., age, race, gender, religion, etc.) is the real reason for the adverse action and the identified reasons are merely a pretext or cover-up for the discriminatory conduct. So, while it may be difficult to express criticism of someone who is failing to meet an employer’s legitimate performance expectations, it is critically important that this criticism is conveyed in a direct and timely manner.

Another issue that can arise with respect to discipline is that, at times, employers jump to conclusions regarding the need for discipline. In other words, they fail to investigate the underlying situation. Particularly if an employee has had a lengthy history of above average performance, a dramatic diminution in performance quality may reflect something other than an indifferent attitude about the job or declining job skills. At this point, an appropriate inquiry is war-ranted. Hypothetically, the performance “decline” may reflect harassing behaviour by a new supervisor; an underlying health challenge; a difficult, stressful divorce; or a thousand other reasons. An employer should make an effort to ascertain why the employee’s performance has deteriorated, especially if the goal is to assist the employee to improve his/her performance and retain his/her services. Rushing to judgment and disciplining an employee in this context can be result in the loss of an otherwise capable employee or potentially, litigation.

Finally, a challenge for employers with respect to discipline is ensuring consistency. The larger the employer and the more geographically separated the workforce, the harder it is to maintain consistency. Of course, that is why Human Resources Departments perform such a critical role. Especially for the same class of employees (i.e., individuals work-ing in the same business unit, or performing similar job functions), the nature of the discipline should be consistent for the same performance problems. Using a simple example, if one supervisor tolerates absenteeism and imposes no consequent discipline, when a different supervisor fires someone for absenteeism, this puts the employer in a legal bind. The discharged employee may well argue that his/her termination did not reflect the time missed from work but rather his/her religion, race, age, gender, national origin, etc. The key to many discrimination cases is differential treat-ment (e.g., a member of one race is treated differently than a member of another race). When discipline is inconsistent, the employer creates the opportunity for this type of argument to be advanced.

  • Laura Reid
    Laura Reid

The most frequent mistakes made by employers when disciplining employees generally tend to revolve around breaches of the employee’s right to due process and fair procedure. Two of the key pitfalls that employers need to be aware of in this regard are as follows:

Employees must be told the allegations against them in full and be given a full opportunity to have their side of the story heard before any adverse finding is made against them and before any disciplinary sanction is imposed upon them. Often employers pre-determine the issues which breaches this fundamental right. In order to get this particular aspect right, employers will usually need to think of it as a two stage process. First there must be an investigation. Only then can there be a disciplinary sanction.

Employers should also be aware that getting this seemingly simple concept right is a lot harder than it might seem. Employers would be well advised to take specific legal advice before embarking upon a disciplinary process with an employee.

Employers should also be cognisant of the second fundamental requirement of due process and fair procedure (i.e. that the decision maker in the disciplinary process must be unbiased). The most basic example of a biased decision maker is where the person deciding the outcome of a disciplinary process is the same person who made the allega-tions. However, more nuanced scenarios can arise where the decision maker is deemed to be biased not because they are also the accuser but because for example they have some sort of vested interest in the outcome or have had some prior involvement in the matters at issue which makes it inappropriate for them to decide the outcome.

In addition to the above, employers can often fall into the trap of failing to follow their own written disciplinary poli-cies which gives easy ammunition to the employee to challenge the process. It is also quite common for an employer to have a written disciplinary policy in place that is not actually fit for purpose. For example, some disciplinary policies can be unnecessarily convoluted or contain unhelpful provisions which can make it all the more difficult for an em-ployer to get from the beginning to the end of a disciplinary process without their own procedures tripping them up.

Q8. What should employers know about mediation in the context of employment disputes?

  • Liene Pommere
    Liene Pommere

As a lawyer who has worked with labour law matters amongst other things for the majority of my career, I can say that most employment disputes can and should be resolved by mediation. Employment is (or should be) a legal relationship based on trust and mutual respect, which are crucial requirements for the success of the business and the individual employees. This also includes an ability to negotiate cooperation between employer and employee or termination thereof. In my experience, many employment disputes involve personal interests and agendas, clarifi-cation of which is the task of mediation by definition. Mediation is less time and cost consuming.

However, mediation is always a process based on voluntary participation and therefore is only effective if both par-ties are willing to negotiate the subject of the dispute. In Latvia, mediation is not widely used to resolve employment disputes as it is a relatively new practice here. The Mediation Law was passed in 2014, for the first time implementing court-suggested mediation. It will take some time for society to trust the process of mediation and assess whether the dispute at hand can be resolved by mediation or it has grown beyond negotiation and court involvement is required.

In this regard, it should be pointed out that every business requires a good employment lawyer; not to focus on solv-ing disputes, but rather on creating documentation and implement procedures, which fully comply with the require-ments of the law and help avoid future employment disputes.

  • Edith N. Nordmann
    Edith N. Nordmann

As Dutch dismissal law is highly complicated, strictly regulated and strongly protecting employees, em-ployers should try to find an amicable solution in case of disputes. Mediation is an impartial way of trying to get to a solution. Also, if mediation is suggested by an employer and refused by the employee this gives the employer a little bit of an advantage if the parties will eventually end up in court.

  • Roy A. Ginsburg
    Roy A. Ginsburg

Many employers utilise mediation as a method of reducing employment litigation or as a vehicle to attempt to resolve already instituted litigation. These different contexts are similar but may warrant different approaches.

In the context of an internal dispute where the employee is still employed and is attempting to satisfactorily resolve a workplace disagreement, the employer has somewhat greater latitude. The mediator does not necessarily have to be an “independent neutral” – the person can be an ombudsman or another member of the company’s management team. Regardless of who performs that function, however, the most critical skills are: (i) the ability to listen to the em-ployee’s concerns; (ii) the ability to ascertain what the employee is hoping to achieve by participating in the mediation process; (iii) the ability to understand thoroughly which potential solutions are realistic and which are outside the realm of possibility; (iv) the ability to persuade both sides of the dispute that there is value in resolving the situation amicably and ensuring the employee’s tenure continues; (v) creativity in formulating a solution; and (vi) patience. For a mediation in this context to be effective, the employee must be “heard,” and believe that the mediator is working effectively to devise a mutually satisfactory resolution.

In the context of a dispute where litigation has been threatened or already commenced, the mediator performs a different role, though at times draws upon many of the same skills referenced above – listening ability, creativity and patience. But, in this setting, the mediator must be an independent neutral who does not appear to be advancing the interests of either party.

Moreover, in a litigation context, the employer often should assume that it will have to compensate the employee to resolve the dispute, a financial burden that often includes compensating the mediator as well. There may be other tangible offers an employer can make in lieu of (or in addition to) compensation (benefit continuation, reference let-ter, expungement of information from the personnel file, etc.). The employer should think creatively about all of these options before the mediation begins, but also be willing to entertain seriously creative solutions identified by the mediator.

At the mediation itself, whether conducted in a joint session or through shuttle diplomacy, demonstrating respect for the former employee will advance the employer’s goals. That said, the employer does not have to roll over at the mediation but instead can present an abbreviated version of its most compelling arguments to the mediator (unless a strategic decision is made to withhold some of this information). Whether or not the employer opts to present a com-prehensive version of its position, the employer should understand that a successful mediation has multiple benefits – resolving a dispute and eliminating the anticipated expenses of litigation; confidentiality; avoiding consumption of management time in non-income-producing activity; avoiding adverse publicity (particularly in a case involving egregious facts); and, often times, eliminating the negative impact of the dispute on employee morale generally, or adversely affecting the culture of the company.

Those benefits acknowledged, however, employers have to assess whether resolving disputes (through mediation or direct negotiation) is advisable. Years ago I represented a large defence contractor that was forced to lay off a signifi-cant segment of its workforce due to an undisputed downturn in the defence industry. Numerous employees sued for age discrimination and the company quickly resolved many of the lawsuits. This led to a phrase around the company (“Sue the company, get a car!”) that, for obvious reasons became extraordinarily expensive. That was the point at which I was retained. The decision was made to cease mediating and resolving the disputes, and instead, litigate them aggressively. After multiple defence verdicts, the laid-off employees ceased filing lawsuits.

  • Laura Reid
    Laura Reid

The basic concept of mediation is the same in employment disputes as in any other area of law i.e. mediation is a voluntary and confidential process. Mediation can have excellent benefits in an employment context. It can be used as a forum within which to mend fractured employment relationships. It can also be an effective forum within which to negotiate an employee exit on agreed terms or to settle employment related litigation.

In many circumstances, mediation can provide resolutions to employment disputes far quicker than going down the route of employment litigation. It can also save both parties significant legal costs. Furthermore, it has the added benefit of allowing the parties the freedom to agree things that it may not otherwise be possible to achieve, even via successful litigation.

In Ireland there are a number of different kinds of employment mediations. For example:

  • an employer may choose to bring a mediator into the workplace to try to improve working relationships;
  • the WRC offers an early resolution service (which is free of charge) to try to promote and assist with the early resolu-tion of certain statutory employment law claims. This can involve over-the-phone mediation.
  • the WRC also offers a face-to-face mediation service (free of charge) in order to resolve many different kinds of em-ployment disputes and claims.

There are many employment law and HR specialists in Ireland who offer mediation as one of their professional services. Often, for example, where high stakes litigation through the civil courts is on the horizon, the parties might first attempt mediation using a third party lawyer who is dual qualified as a mediator.

Q9. With millennials and generation Z now purporting a majority of the world’s workforce, how should businesses be altering their approach to employee relations, and how can they increase talent retention?

  • Liene Pommere
    Liene Pommere

The younger generations – millennials and generation Z – are driven not merely by responsibility and duty or even financial motivation, but more so by a passion towards their individual career, personal goals, and goals of the work community they are a part of. The loyalty of individuals belonging to these generations cannot be bought or imposed by fear, but rather gained by the inspiring and motivational culture of the workplace.

Both generations, but especially generation Z, require a more individualistic and personal approach from the work-place, setting individual challenges based on each employees’ abilities and wishes. It should be said that as opposed to millennials – who still embody some of the conventional and conservative values and approach to work and career, demonstrating the ability to adjust easier and more stress resilience – generation Z has a unique perspective on work, career, and general definition of success in life. These individuals respect the social responsibility of the workplace towards climate change and similar issues, as well as focus on diversity. The research shows that individuals belonging to generation Z are more prone to stress, depression, and anxiety, which means that workplace wellness is a crucial factor affecting their work performance, efficiency, and workplace choice. Retaining talent will also require employers to recognise and highlight each individual by creating individual career paths – providing the ability to learn, and op-portunities for continuous growth.

  • Edith N. Nordmann
    Edith N. Nordmann

Millennials and generation Z tend to want to have a real impact on the business – they want to do work which really matters, whereas the generations before them accepted that as part of their way up in their career they had to start with “stupid” work too. It’s important to explain to the millennials that all of the work they are doing is really meaningful and adding to the success of the business. Also in order to retain them they should get a clear career path with goals and rewards, which should not only be about additional pay, but also clearly about more responsibility.

Q10. Given the recent global attention brought to equal rights and opportunities, what dis-crimination challenges still exist in your jurisdiction?

  • Edith N. Nordmann
    Edith N. Nordmann

Officially there should be equal rights. In practice opportunities are still not equal upon application with a foreign name. Also, in top positions the percentage of women is still not equal to men.

  • Roy A. Ginsburg
    Roy A. Ginsburg

I live and work in Minneapolis, the City where George Floyd was murdered. This tragic event, which played out over nine excruciating minutes, caused a long overdue re-examination of equal rights, policing, race relations, privilege, income inequality, and a variety of related subjects. These issues were not just front and centre in Minneapo-lis but in urban areas throughout the U.S. and around the world.

Unfortunately, the tragedy of pervasive racism, which has been part of U.S. history for hundreds of years, was high-lighted just as the tragedy of the pandemic became most acute. Until the recent explosion of cases between Novem-ber and January, the most serious health challenges of the pandemic occurred in April and May. George Floyd was murdered in May. To some extent, then, the social and racial justice movement brought into sharp relief by Mr Floyd’s death was affected by the widespread sickness and death caused by the pandemic.

Of course, looking back, we now know that minority communities (particularly African American and Hispanic) have been more adversely affected by COVID-19 than Caucasian communities. This too reflects social inequalities too nu-merous to describe here (access to health care, pre-existing health conditions, concentrated housing contexts, inflex-ible work environments, etc.). Another exacerbating variable has been the 2020 Presidential election, and the divisive, heated rhetoric of the outgoing administration.

One of many unresolved questions is how the social and racial justice movement will unfold once the world is able to return to some semblance of post-vaccine and post-Trump normalcy. In the U.S. and the 50 states that make up this country, there are adequate statutory protections to protect employees from overt and (sometimes) subtle discrimi-nation. Title VII, passed in the middle of the 1960s Civil Rights movement, the Age Discrimination in Employment Act passed a few years later, and the Americans with Disabilities Act passed in the early 1990s, coupled with the many parallel state statutory schemes, provide mechanisms to redress workplace discrimination. But, while these federal and state statutes address certain types of wrongful workplace conduct, they do not necessarily affect attitudes and belief systems that have disadvantaged segments of the population for a protracted time.

The #MeToo movement demonstrated that attitudes can shift meaningfully in a relatively abbreviated time frame, if sufficient attention and focus is brought to bear on issues of fundamental fairness. Whether there will be comparable attitudinal and behavioural changes relating to issues of racial and social justice, and just how these issues might af-fect the workplace, remains to be seen.

Q11. What is the key to a successful company culture?

  • Edith N. Nordmann
    Edith N. Nordmann

Employees should feel that they are valued for their contribution. This is key. On top of that employees should know that they can grow and develop themselves within the organisation. The company culture should also clearly state a good work-life balance. This is usually far more important than a higher salary.

Q12. What role does immigration play in filling labour shortages and skill gaps in your jurisdiction?

  • Edith N. Nordmann
    Edith N. Nordmann

Immigration from outside the EU plays a part for highly skilled migrants. In principle they can only be hired if the company can state that no comparable employees on that level with these skills can be found within the EU.


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