The matter of the minimum period of paid annual leave that an employee is entitled, is regulated by the Law on Paid Annual Leave, L. 8/1967 (the “Law”).

Pursuant to the provisions of the Law, in the event where an employee has worked for no less than forty-eight weeks within the year whereby the leave is requested, then the minimum period of paid leave that he/she is entitled to take, is:

• twenty working days for employees who work five days per week; and
• twenty-four working days, for employees who work six days per week.

Recently, the House of Representatives has passed an amending law to the Paid Annual Leave Law, which effectively allows employees to take paid annual leave from the first day of their employment (and not upon the completion of thirteen weeks of continuous employment with the same employer, which has been the case under the previous regime) (the “Amending Law”).

It is understood that any periods during which an employee is temporarily absent from work due to an accident or illness or while he/she is on maternity, paternity, parental or care leave, or leave due to force majeure, shall be counted as regular working periods for the purposes of the Law.

It is noted that the following, shall not be counted as annual leave days:

• public holidays established by law, custom or contract;
• the period of maternity or paternity leave;
• days on which an employee is incapable to work due to an accident or illness;
• days on which there is a lock out;
• the period during which a notice of termination of employment has been served;
• the period of parental leave, care leave and leave due to force majeure.

Social Insurance Inspectors have the right to conduct inspections for the purpose of verifying whether the employers comply with their obligations emanating by Law.  During the inspections, the Inspectors may, inter alia, examine the employer’s books/records regarding the employees, their remuneration and the employer’s contributions towards such employees, while he/she may make such enquires and request such clarifications from the employers, as he/she may deem necessary under the circumstances. It is underlined that any employer who obstructs an Inspector from performing his/her duties, without justification, or refuses to answer to the questions raised by the Inspector during the inspection, is guilty of an offense, and in case of conviction, the employer will be subject to a monetary fine.

It is further noted that any employer who fails to grant to an employee a leave that is due to him/her as per the provisions of the Law, is guilty of an offense, and in case of conviction, is subject to a fine not exceeding EUR 3,400 or one year of imprisonment or both.

Ο περί Προστασίας των Μισθών (Τροποποιητικός) Νόμος του 2022 (Ν. 221(I)/2022), δημοσιεύθηκε στην Επίσημη Εφημερίδα της Δημοκρατίας στις 16 Δεκεμβρίου 2022 και επέφερε σημαντικές αλλαγές στον ισχύοντα περί Προστασίας των Μισθών Νόμο (Ν. 35(I)/2007).

Οι κυριότερες αλλαγές που τέθηκαν σε ισχύ βάσει του Τροποιητικού Νόμου(Ν. 221(I)/2022) αφορούν τον τρόπο πληρωμής των μισθών, την υποχρέωση έκδοση κατάστασης μισθοδοσίας, τις επιτρεπόμενες αποκοπές μισθού, την υποχρέωση τήρησης στοιχείων/αρχείων καθώς και τα προβλεπόμενα αδικήματα και ποινές.

Ειδικότερα, αναφορικά με τον τρόπο καταβολής των μισθών, κάθε εργοδότης υποχρεούται να καταβάλλει τον μισθό του εργοδοτουμένου του σε τραπεζικό λογαριασμό ή σε λογαριασμό πληρωμών της επιλογής του εργοδοτουμένου (περιλαμβανομένης της πληρωμής με ηλεκτρονικά μέσα πληρωμής ή της πληρωμής μέσω παρόχων υπηρεσιών πληρωμών) ή με τραπεζική επιταγή, η οποία εκδίδεται στο όνομα του εκάστοτε εργοδοτουμένου.

Σε περίπτωση κατά την οποία η διαδικασία ανοίγματος του λογαριασμού ή του λογαριασμού πληρωμών ενός εργοδοτουμένου εκκρεμεί, ο Εργοδότης δύναται να καταβάλλει τον μισθό του εργοδοτουμένου αυτού σε μετρητά για περίοδο που δεν υπερβαίνει τους 4 μήνες από την ημερομηνία πρόσληψης του εν λόγω εργοδοτουμένου. Νοείται ότι εφόσον το αίτημα για άνοιγμα λογαριασμού ενός εργοδοτουμένου απορρίπτεται  (για οποιονδήποτε λόγο), ο εργοδότης έχει το δικαίωμα να συνεχίσει να πληρώνει τον μισθό τέτοιου εργοδοτουμένου σε μετρητά, αφού προσκομίσει προηγουμένως στον Διευθυντή του Τμήματος Εργασιακών Σχέσεων του Υπουργείου Εργασίας και Κοινωνικών Ασφαλίσεων, σχετική βεβαίωση από το πιστωτικό αυτό ίδρυμα το οποίο απέρριψε την αίτηση του εργοδοτουμένου για άνοιγμα λογαριασμού.

Στο σημείο αυτό αξίζει να σημειωθεί ότι ο μισθός δύναται να καταβάλλεται σε μετρητά, εάν ο εργοδότης καταβάλλει το μισθό σε εβδομαδιαία βάση και αν έχει συνάψει συλλογική σύμβαση ή άλλη γραπτή συμφωνία με τον εν λόγω εργοδοτούμενο, βάσει της οποίας, προβλέπεται η δυνατότητα καταβολής του μισθού σε εβδομαδιαία βάση. Σε τέτοια περίπτωση, η συμφωνία αυτή θα πρέπει να φέρει τις υπογραφές τόσο του εργοδότη όσο και του εργοδοτούμενου καθώς και να αναγράφει ολογράφως τα ονόματά των εκατέρωθεν μερών.

Σε σχέση με την κατάσταση μισθοδοσίας, σύμφωνα με τον Τροποποιητικό Νόμο (Ν. 221(I)/2022), ο εργοδότης οφείλει να εκδίδει κατάσταση μισθοδοσίας και να δίνει στον εργοδοτούμενο αντίγραφο της σχετικής κατάστασης εντύπως ή ηλεκτρονικά, εντός 5 εργάσιμων ημερών από την ημερομηνία καταβολής του μισθού.

Η κατάσταση μισθοδοσίας θα πρέπει να περιλαμβάνει τουλάχιστον τα πιο κάτω στοιχεία: (i) τα στοιχεία της ταυτότητας του εργοδότη και του εργοδοτούμενου (π.χ. ονοματεπώνυμο, διεύθυνση, ταυτότητα, αριθμός κοινωνικών ασφαλίσεων ή αριθμός μητρώου εργοδότη) (ii) την ημερομηνία πληρωμής (iii) την περίοδο που αφορά η πληρωμή (iv) τα στοιχεία πληρωμής (τον βασικό μισθό, την υπερωριακή αμοιβή καθώς και  οποιεσδήποτε άλλες πληρωμές) (v) τις εισφορές του εργοδοτούμενου (π.χ. το ταμείο κοινωνικών ασφαλίσεων, το Γενικό Σύστημα Υγείας, άλλες εισφορές που τυχόν προβλέπονται από νόμο ή κανονισμό ή γραπτή συμφωνία ή συλλογική σύμβαση) (vi) τις εισφορές εργοδότη (π.χ. το ταμείο κοινωνικών ασφαλίσεων, το ταμείο κοινωνικής συνοχής, το ταμείο πλεονάζοντος προσωπικού, το ταμείο ανάπτυξης ανθρώπινου δυναμικού, το Γενικό Σύστημα Υγείας καθώς επίσης και άλλες εισφορές που τυχόν προβλέπονται από νόμο ή κανονισμό ή γραπτή συμφωνία ή συλλογική σύμβαση) (vii) οποιαδήποτε άλλα στοιχεία, εφόσον τυγχάνουν εφαρμογής (π.χ. αυτόματη τιμαριθμική αναπροσαρμογή, προμήθεια, 13ος μισθός, 14ος μισθός, οδοιπορικά, εισφορές στο κεντρικό ταμείο αδειών, εισφορές εργοδότη ή/και εργοδοτούμενου στο ταμείο προνοίας).

Υπογραμμίζεται ότι ο εργοδότης οφείλει να τηρεί αρχείο με τις καταστάσεις μισθοδοσίας και οφείλει, εφόσον του ζητηθεί από οποιοδήποτε επιθεωρητή ή άλλο εξουσιοδοτημένο λειτουργό, να αποστείλει τέτοιο αρχείο, εντός 15 ημερολογιακών ημερών.  Τα εν λόγω αρχεία τα οποία οφείλει να τηρεί ο εργοδότης, θα πρέπει να φυλάσσονται και να είναι διαθέσιμα για έλεγχο από τους επιθεωρητές ή άλλους εξουσιοδοτημένους λειτουργούς, για περίοδο που δεν υπερβαίνει τα 6 έτη.

Αναφορικά με τις επιτρεπόμενες αποκοπές από το μισθό, οι οποίες αφορούν, μεταξύ άλλων αποκοπές σύμφωνα με τους κανονισμούς των ταμείων σύνταξης, των ταμείων προνοίας, για λόγους ιατροφαρμακευτικής περίθαλψης ή αποκοπές δυνάμει δικαστικής απόφασης, προστίθενται  και οι αποκοπές που προβλέπονται βάσει συλλογικής σύμβασης ή γενικής συμφωνίας μεταξύ εργοδοτικών οργανώσεων και εκπροσώπων των εργαζομένων, για εργαζόμενους για τος οποίους οι συμφωνίες αυτές εφαρμόζονται. Νοείται ότι προκειμένου να γίνουν οποιεσδήποτε άλλες αποκοπές από το μισθό ενός εργοδοτούμενου, πρέπει να εξασφαλιστεί η προηγούμενη γραπτή και ενυπόγραφη συγκατάθεσή του εν λόγω  εργοδοτούμενου προς το σκοπό αυτό. Σημειώνεται ότι σε τέτοιες περιπτώσεις, ο εργοδότης οφείλει να τηρεί αρχείο με τα έντυπα συγκατάθεσης τέτοιου εργοδοτούμενου.

Τέλος, ο Τροποποιητικός  Νόμος (Ν. 221(I)/2022) προσθέτει ακόμη ένα αδίκημα στα προβλεπόμενα εκ του άρθρου 20 αδικήματα. Σύμφωνα με το  άρθρο 20(1^Α) του Ν. 35(I)/2007,σε περίπτωση κατά την οποία διαπράττεται ποινικό αδίκημα, κατά παράβαση του νόμου, από νομικό πρόσωπο ή οργανισμό και αποδεικνύεται είτε ότι έχει διαπραχτεί με τη συγκατάθεση ή συνενοχή φυσικού προσώπου, που κατά το χρόνο διάπραξης του ποινικού αδικήματος κατέχει θέση συμβούλου, προέδρου, διευθυντή, γραμματέα ή άλλη παρόμοια θέση στο νομικό πρόσωπο ή εμφανίζεται ότι ενεργεί με την ιδιότητα αυτή, τότε το πρόσωπο ή τα πρόσωπα που διέπραξαν το αδίκημα αυτό υπόκεινται, σε περίπτωση καταδίκης τους, σε ποινή φυλάκισης που δεν υπερβαίνει τους 6 μήνες ή σε χρηματική ποινή που δεν υπερβαίνει τις €15000 ή και στις δύο αυτές ποινές.

Recent developments in the applicable legislative and regulatory framework governing the processing of personal data of natural persons, spearheaded by the entering into force of the Regulation EU/2016/679 (henceforth the “General Data Protection Regulation” or simply “GDPR”), seek to confer upon data subjects a greater degree of control over their personal data whilst at the same time imposing more stringent obligations upon data controllers and data processors when it comes to the processing of personal data. The GDPR is complemented by the provisions of Protection of Natural Persons Against the Processing of Personal Data and the Free Transmission of Such Data Law, L.125(I)/2018 (the “Law”). For the purposes of this article, the GDPR and the Law shall henceforth be jointly referred to as the “Data Protection Legislation”.

Personal information pertaining to employees processed by the employer in the course of the employment relationship is a subject that often leaves employers scratching their heads when trying to reconcile the interests of their business with the rights expressly afforded to employees in their capacity as data subjects under the Data Protection Legislation.   

More specifically, in the context of the employment relationship, an employee is expected to provide information which is required by the employer for the performance of the contract of employment, including -among others- the employee’s social insurance number, the employee’s contact details and details of the bank account of the employee to which the employee’s salary will be deposited. The provision of such information by the employee is not especially controversial, provided of course that it is processed by the employer in a manner that is compatible with the Data Protection Legislation. At the same time, however, the realities of the employment relationship may give rise to more difficult questions which merit a cautious approach when balancing the rights of the employer against the rights of the employee.

In this regard, an interesting question arises with regards to the email accounts of employees and former employees and, more specifically, when and under which circumstances can these be accessed by the employer without running the risk of falling afoul of the provisions of the Data Protection Legislation. This question is the subject of Opinion 1/2019 (the “Opinion”) issued by the Commissioner for Personal Data Protection (the “Commissioner”) in its capacity as the competent supervisory authority tasked with monitoring compliance with the provisions of the Data Protection Legislation.The Commissioner’s authority to issue opinions on any matter concerning the processing of personal data can be traced inthe provisions of Article 53(3)(b) of the GDPR.

It is stressed from the outset that the Opinion applies to a number of persons to whom the employer provided an email address strictly for business use in the course of the employment; these persons include (a) former employees, (b) current employees who are absent for an extended period of time and (c) former and current employees who are reasonably suspected of being involved in the commission of offence(s). It is worth noting that the scope of the Opinion also encompasses (a) other electronic means of communication or electronic equipment made available to the employee for use in the course of the employment such as mobile phones and portable handheld devices (tablets) and (b) data deleted by the employee but which remain stored in secure copies or other secure locations to which the employer has access.

The Opinion urges employers to take precautionary measures with a view of limiting the instances necessitating the employer accessing messages contained in the email accounts of employees. In this context, the employer is expected to ensure that outgoing and incoming emails for business use are also accessible by other sources. It is suggested that this may be achieved by storing such emails on an email server which shall only be accessible by an authorised user.

Notwithstanding the implementation of precautionary measures, it is conceivable that the employer may still need to access the email account of an employee or former employee in certain cases. Where it is necessary to access the email account of employees / former employees and to process data stored on such account in order to:

• Ensure the seamless operation of the business,
• Ensure the protection of the interests, property and managerial rights of the employer,
• Facilitate the organization and monitoring of carrying out of a particular task or turnover and in particular monitoring of expenditure,
• The investigation of possible offences,

Such processing -the Opinion suggests- may be permissible provided that the following conditions are met:

(a) at least one of the legal bases for processing stipulated in Article 6(1)(b)-(g) of the GDPR applies,

(b) the employer has adopted a written policy with a view of determining clear procedures for accessing email accounts of employees / former employees and for processing of information stored therein (the “Policy”),

(c) the employer has informed employees about the purpose and scope of the Policy upon the commencement of their employment in a concise, easily accessible and legible manner and using precise and plain wording,

(d) the employee / former employee is specifically notified of the employer’s intention to gain access to the email account,

(e) the employer processes any such data having regard to the fundamental principles of processing enunciated in Article 5 of the GDPR and specifically,

(i) the principle of lawfulness, fairness and transparency,

(ii) the principle of purpose limitation,

(iii) the principle of data minimisation,

(iv) the principle of accuracy,

(v) the principle of storage limitation,

(vi) the principle of integrity and confidentiality,

(vii) the principle of accountability

(f) The email message should be read in the presence of the employee / former employee, unless this is not feasible or would require disproportionate effort or where an administrative investigation / disciplinary procedure is underway.

The Policy must -at the very least- include the following information:

(a) Whether the sending of emails for personal reasons from terminals installed in the workplace is permissible and of the penalties associated with such use of the business email account and, where possible, the provision of appropriate mediums to facilitate the completion of personal email correspondence in the employee’s spare time,

(b) the purpose and manner of accessing of the email account by the employer and the information included therein,

(c) the categories / capacities of persons allowed to have access,

(d) any legal recipients,

(e) the legal basis for processing,

(g) if the legal basis cited for processing is the employer’s legitimate interest pursuant to Article 6(1)(g) of the GDPR, the nature of the legitimate interest of the employer or of a third party,

(h) in case that it shall be permissible for the personal data to be communicated to a third party-recipient, the employee / former employee must be notified when the data in question shall be communicated to the third party-recipient for the first time. When the entity intends to process data for a different purpose to the one for which it was originally collected, the employee / former employee must be provided with all material information prior to any such processing taking place, and

(i) departing employees must be informed if and for how long their email account shall remain active and for which purpose.

It is stressed that the notification obligation included in points (a) – (i) above, does not apply where the information in question is already at the employee’s disposal, or where the registration or communication of the data is expressly provided by law, or in cases where the provision of information to the employee / former employee is not feasible or would require a disproportionately onerous effort on the part of the employer.   

In an attempt to insulate themselves from liability, some employers require employees to sign data processing consent forms, the rationale being that any processing on the basis of such consent will be considered legitimate. Nevertheless, having regard to the idiosyncratic nature of the employer-employee relationship whereby the employer is acknowledged to be negotiating from a position of strength (hence the presumption of equality of bargaining power usually applicable to most contractual relationships is not applicable in this context), such consent forms signed by an employee in the course of their employment will not be considered as valid consent for the purposes of the Data Protection Legislation.

Source: Opinion 1/2019 issued by the Commissioner for Personal Data Protection available in Greek      at: https://www.dataprotection.gov.cy/dataprotection/dataprotection.nsf/all/CBD480CDE52BEF21C225820A004BBEB3/$file/2019-access%20to%20email%20accounts%20by%20the%20employer.pdf?openelement

O Περί Αδειών (Πατρότητας, Γονικής, Φροντίδας, Ανωτέρας Βίας) και Ευέλικτων Ρυθμίσεων Εργασίας για την Ισορροπία μεταξύ Επαγγελματικής και Ιδιωτικής Ζωής Νόμος του 2022 (Ν. 216(Ι)/2022) (ο “Νόμος”), ο οποίος τέθηκε σε ισχύ με την έκδοση του στην Επίσημη Εφημερίδα της Δημοκρατίας την 16^η Δεκεμβρίου 2022, αποσκοπεί στην εξισορρόπηση/συμφιλίωση της επαγγελματικής με την οικογενειακή ζωή για τους εργαζόμενους γονείς ή φροντιστές, μέσω θέσπισης ατομικών δικαιωμάτων και ειδικότερα, μέσω της χορήγησης δικαιωμάτων σε:

• άδεια πατρότητας, γονική άδεια, άδεια φροντίδας και απουσία από την εργασία για λόγους

ανωτέρας βίας·

• ευέλικτες ρυθμίσεις εργασίας για τους εργαζόμενους γονείς ή τους φροντιστές.

Σύμφωνα με το άρθρο 8 του Νόμου, εργαζόμενος γονέας, ο οποίος έχει συμπληρώσει συνεχή απασχόληση διάρκειας έξι (6) μηνών στον ίδιο εργοδότη, δικαιούται να λάβει γονική άδεια. Η μέγιστη διάρκεια της γονικής άδειας είναι δεκαοκτώ (18) εβδομάδες για κάθε τέκνο, ενώ σε περίπτωση χήρου/ας γονέα ή μονού γονέα, είτε λόγω αφαίρεσης της γονικής μέριμνας από τον άλλο γονέα είτε μη αναγνώρισης του τέκνου από αυτόν, η διάρκεια της γονικής άδειας επεκτείνεται σε είκοσι τρεις (23) εβδομάδες (άρθρο 8(3) του Νόμου).

Σημειώνεται δε ότι το δικαίωμα λήψης γονικής άδειας είναι ατομικό και αμεταβίβαστο δικαίωμα για κάθε γονέα, με εξαίρεση τη δυνατότητα μεταβίβασης εννέα (9) εβδομάδων από το υπόλοιπο της άδειας του ενός γονέα στο υπόλοιπο της άδειας του άλλου γονέα.

Χρονικό Διάστημα Εξάσκησης του Δικαιώματος Γονικής Άδειας

Η γονική άδεια λαμβάνεται μεταξύ του χρονικού διαστήματος που μεσολαβεί από τη λήξη της ληφθείσας άδειας μητρότητας ή πατρότητας, ανάλογα με την περίπτωση, μέχρι το όγδοο (8^ο) έτος της ηλικίας του τέκνου, ενώ σε περίπτωση υιοθεσίας, η γονική άδεια λαμβάνεται μετά τη λήξη της άδειας μητρότητας ή πατρότητας, ανάλογα με την περίπτωση, και για περίοδο οκτώ (8) ετών από την

ημερομηνία υιοθεσίας, νοουμένου ότι το τέκνο δεν θα υπερβεί μέχρι τότε το δωδέκατο (12^ο) έτος της ηλικίας του (άρθρο 9 του Νόμου).

Σημειώνεται ότι σε περίπτωση τέκνου με αναπηρία, τηρουμένων των διατάξεων του περί Ατόμων με Αναπηρίες Νόμου, το δικαίωμα για λήψη γονικής άδειας επεκτείνεται μέχρι το δέκατο όγδοο (18^ο) έτος ηλικίας του τέκνου (άρθρο 9 του Νόμου).

Επίδομα Γονικής Άδειας

Κατά τη διάρκεια των οκτώ (8) εβδομάδων γονικής άδειας, ο εργαζόμενος γονέας δικαιούται να λάβει επίδομα γονικής άδειας, νοουμένου ότι κατά την ημερομηνία υποβολής της αίτησης έχει συμπληρώσει δώδεκα (12) μήνες απασχόλησης εντός των τελευταίων είκοσι τεσσάρων (24) μηνών (άρθρο 10(1) του Νόμου).

Σε περίπτωση τέκνου με αναπηρία, η διάρκεια του επιδόματος γονικής άδειας επεκτείνεται κατά:

• τέσσερις (4) εβδομάδες, νοουμένου ότι το τέκνο έχει πιστοποιηθεί από το Σύστημα Αξιολόγησης της Αναπηρίας και Λειτουργικότητας του Τμήματος Κοινωνικής Ενσωμάτωσης Ατόμων με Αναπηρίες, ως άτομο με σοβαρή αναπηρία ή με μέτρια νοητική αναπηρία.

• έξι (6) εβδομάδες, νοουμένου ότι το τέκνο έχει πιστοποιηθεί από το Σύστημα Αξιολόγησης της Αναπηρίας και Λειτουργικότητας του Τμήματος Κοινωνικής Ενσωμάτωσης Ατόμων με Αναπηρίες, ως άτομο με ολική αναπηρία (άρθρο 10(1) του Νόμου).

Σημειώνεται ότι το επίδομα γονικής άδειας καταβάλλεται εφόσον ικανοποιηθεί ότι πληρούνται οι όροι και προϋποθέσεις που προβλέπει ο περί Κοινωνικών Ασφαλίσεων Νόμος (άρθρο 10(2) του Νόμου).

Τρόπος Λήψης Γονικής Άδειας και Λήψη Γονικής Άδειας με Ευέλικτους Τρόπους

Σύμφωνα με το άρθρο 11(1) του Νόμου, η γονική άδεια δύναται να λαμβάνεται τμηματικά, με ελάχιστη διάρκεια μιας (1) ημέρας και μέγιστη διάρκεια πέντε (5) εβδομάδων ανά ημερολογιακό έτος. Η γονική άδεια, έπειτα από σχετική αίτηση του εργαζόμενου, δύναται εναλλακτικά να χορηγείται με ευέλικτο τρόπο που εξυπηρετεί τον ίδιο τον εργαζόμενο και τον εργοδότη του (άρθρο 11(2) του Νόμου).

Tο δικαίωμα λήψης της γονικής άδειας με ευέλικτους τρόπους περιορίζεται στη δυνατότητα λήψης αυτής με ελάχιστη περίοδο μίας (1) ημέρας. Σημειώνεται περαιτέρω ότι, το δικαίωμα του εργαζόμενου να λάβει επίδομα γονικής άδειας, δεν θίγεται από τον τρόπο λήψης της γονικής άδειας (άρθρο 11(2) του Νόμου).

Προειδοποίηση Λήψης Γονικής Άδειας

Ο εργαζόμενος ο οποίος προτίθεται να ασκήσει το δικαίωμα γονικής άδειας, προειδοποιεί τον εργοδότη του τρεις (3) εβδομάδες πριν από την ημερομηνία έναρξης της γονικής άδειας, ενημερώνοντάς τον εργοδότη για την ημερομηνία έναρξης και λήξης της εν λόγω άδειας, ενώ σε ειδικές περιπτώσεις, όπου απαιτείται η άμεση λήψη γονικής άδειας, η περίοδος της προειδοποίησης δύναται να μειωθεί, νοουμένου ότι έχει εξασφαλιστεί η προηγούμενη σύμφωνη γνώμη του εργοδότη (άρθρο 12(1) του Νόμου).

Στις περιπτώσεις λήψης της γονικής άδειας με ευέλικτους τρόπους, ο εργαζόμενος οφείλει, πέραν της προειδοποίησης προς τον εργοδότη του, να προσδιορίσει το είδος της ευελιξίας που επιθυμεί να κάνει χρήση, καθώς επίσης και το μέρος της γονικής άδειας που επιθυμεί να λάβει με ευέλικτο τρόπο (άρθρο 12(1) του Νόμου).

Το Υπουργικό Συμβούλιο σε συνεδρία του στις 31 Αυγούστου 2022, εξέδωσε διάταγμα (το «Διάταγμα») βάσει του εδαφίου (1) του άρθρου 3 του περί Κατώτατου Ορίου Μισθών Νόμου (ΚΕΦ 183) (ο «Νόμος»), για τον επαναπροσδιορισμό του κατώτατου μηνιαίου μισθού στην Κυπριακή Δημοκρατία.

Σύμφωνα με το εδάφιο (5) του Διατάγματος, ο κατώτατος μηνιαίος μισθός που πρέπει να καταβάλλεται σε οποιοδήποτε εργοδοτούμενο στην Κυπριακή Δημοκρατία από την 1^η Ιανουαρίου 2023, ορίζεται στα ΕΥΡΩ 940 για εργοδοτούμενους πλήρους απασχόλησης. Νοείται δε ότι ο κατώτατος μηνιαίος μισθός που δύναται να καταβάλλεται σε εργοδοτούμενους πλήρους απασχόλησης που είτε πριν την 1^η Ιανουαρίου 2023, είτε μετά την 1^η Ιανουαρίου 2023, δεν έχουν συμπληρώσει έξι (6) μήνες συνεχούς απασχόλησης στον ίδιο εργοδότη, από την 1^η  Ιανουαρίου 2023 ορίζεται στα ΕΥΡΩ 885 (μέχρι τη συμπλήρωση έξι (6)  μηνών συνεχούς απασχόλησης).  

Σημειώνεται ότι το ωράριο πλήρους απασχόλησης των εργαζομένων σε κάθε οικονομική δραστηριότητα δεν επηρεάζεται από το εν λόγω Διάταγμα και θα είναι αυτό που ίσχυε κατά την έκδοση του Διατάγματος, με βάση την εκάστοτε νομοθεσία, σύμβαση, έθιμο ή/και πρακτική.

Σε περιπτώσεις εργαζομένων που τελούν υπό καθεστώς μερικής απασχόλησης, ο κατώτατος μηνιαίος μισθός από την 1^η Ιανουαρίου 2023, θα προσαρμόζεται αναλόγως των ωρών  εργασίας τους σε σχέση με το πλήρες ωράριο που αναφέρεται πιο πάνω.

Όταν στο πλαίσιο της συμφωνημένης σύμβασης εργασίας ο εργοδότης παρέχει στον εργοδοτούμενο διατροφή ή/και διαμονή, τότε ο κατώτατος μηνιαίος μισθός δύναται να μειώνεται, κατόπιν συμφωνίας μεταξύ εργοδότη και εργοδοτούμενου, ως ακολούθως: (i) μέχρι 15% όταν παρέχεται διατροφή, ή/και (ii) μέχρι 10% όταν παρέχεται διαμονή.

Αξίζει να επισημανθεί ότι στη βάση του εδαφίου (6) και (7) του Διατάγματος, ιδρύεται μια εννεαμελής (9) Επιτροπή Αναπροσαρμογής του Κατώτατου Μισθού καθώς θεσμοθετείται και σχετικός μηχανισμός αναπροσαρμογής του κατώτατου μισθού, ο οποίος τίθεται σε ισχύ από την 1^η Ιανουαρίου 2024 και θα εφαρμόζεται ανά δυο έτη.

Υπογραμμίζεται ότι από τις διατάξεις του εν λόγω Διατάγματος, εξαιρούνται οι οικιακοί εργαζόμενοι, οι εργάτες γεωργοκτηνοτροφίας και οι εργαζόμενοι στη ναυτιλία καθώς επίσης και οι εργαζόμενοι για τους οποίους εφαρμόζεται το περί Κατώτατων Μισθών στη Ξενοδοχειακή Βιομηχανία Διάταγμα του 2020. Νοείται περαιτέρω ότι οι διατάξεις του Διατάγματος δεν εφαρμόζονται για οποιοδήποτε εργαζόμενο για τον οποίο ισχύουν ευνοϊκότερες ρυθμίσεις με βάση τη νομοθεσία, σύμβαση, πρακτική ή έθιμο ούτε εφαρμόζονται σε πρόσωπα τα οποία λαμβάνουν κατάρτιση ή εκπαίδευση για το σκοπό απόκτησης διπλώματος ή άσκησης επαγγέλματος, βάσει νομοθεσίας, πρακτικής ή εθίμου.

Επιπρόσθετα, δεν επηρεάζονται από το συγκεκριμένο Διάταγμα, οποιεσδήποτε άλλες ρυθμίσεις για αμοιβή υπερωριακής απασχόλησης ή/και εργασίας εκτός κανονικού ωραρίου ή/και εργασίας σε γιορτές και αργίες ή άλλα ωφελήματα.

What is constructive dismissal?

Constructive dismissal is basically the situation where an employer has committed a serious breach of contract entitling the employee to resign in response to the employer’s conduct, by treating himself as having been dismissed by the employer.^[1] In such cases, the existing legal framework enables the treatment of the employee’s resignation as a form of unfair dismissal since the actions and/or conduct of the employer (constructive part) leads to the resignation of the employee (dismissal part).^[2]

In the British case Western Excavating (ECC) Ltd v Sharp^[3], it was stated that “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance”. If he does so and proceed with the termination of the employment contract by reason of the employer’s conduct, he is constructively dismissed.

The aforementioned legal approach is also reflected in the relevant applicable Cypriot law. More specifically, subsection 7(1) of the Termination of Employment Law of 1967 (24/1967) (the “Law”) provides that in cases where an employee legally terminates his/her employment with the employer due to the conduct of the employer, then such termination is considered as being termination of employment by the employer within the meaning of section 3 of the Law, which recognises the employee’s right to receive compensation after his/her termination of employment by the employer.

However, it must be stressed that according to subsection 7(2) of the Law, in any proceedings before the Labour Disputes Tribunal initiated pursuant to the abovementioned subsection 7(1) of the Law, it will be presumed, until proven otherwise, that the employee has not terminated his employment lawfully. This actually means that the burden of proof is on the employee to show at the Court that the conduct and/or actions of the employer amounted to a fundamental and/or serious breach of contract (usually referred to as a “repudiatory breach”) leading the employee to terminate the employment contract as a result.

What is a repudiatory breach?    

In cases of constructive dismissal, the employer’s unreasonable conduct and behaviour leading an employee to terminate the employment contract is often referred to as a “repudiatory breach”. A repudiatory breach can either be a fundamental breach of an express contractual term or a breach of the implied term of “trust and confidence” between the parties.

It must also be noted that such unreasonable treatment by the employer may either be a one-off serious breach of the employment contract (for instance, failure by an employer to pay an employee’s salary) or a continuous pattern of behaviour and/or incidents, which taken as a whole amount to a fundamental breach of the implied term of trust and confidence (for instance, persistent bullying in the workplace).

In Lewis v Motorworld Garages Ltd^[4] it was stated that “..the repudiatory conduct may consist of a series of acts or incidents, some of them perhaps quite trivial, which cumulative amount to a repudiatory breach of the implied term of the employment contract that the employer will not, without reasonable and proper cause, conduct himself in a manner calculated or likely to destroy or seriously damage the relationship of confidence between the employer and the employee”.  

In general terms, a finding that there has been conduct which amounts to a breach of the implied term of trust and confidence will inevitably mean that there has been a fundamental or repudiatory breach going necessarily to the root of contract.^[5] In Garner v Grange Furnishing Ltd,^[6] it was stated that behaviour or conduct amounting to a repudiation can be a series of small incidents over a period of time. If the employer is making it impossible for the employee to go on working, that is plainly a repudiation of the employment contract.^[7]

In the Cypriot case Louis Tourist Agency Ltd v Antigonis Elia,^[8] it was stated that the kind of an employer’s conduct and/or behaviour justifying the termination of employment by the employee is not specified in the aforementioned subsection 7(1) of the Law. However, in the aforementioned case, reference was also made to Alouet Clothing v Athanasiou,^[9] where it was held that a breach of a fundamental term of the employment contract by the employer, constitutes a conduct falling under the provisions of subsection 7(1) of the Law. Moreover, it was stated that although it is difficult, if not impossible, to exhaustively determine the employer’s misconduct falling under subsection 7(1) of the Law, such conduct must be of such nature and character as to undermine the foundation of the employer-employee relationship, whether by breach of a fundamental term of the employment contract or by conduct and/or behaviour on the part of the employer which is not compatible with the admissible relationship framework between the employer and the employee.

What is the applicable standard of assessment for a breach to be considered as a repudiatory breach of the employment contract giving rise to a claim for contrastive dismissal? Is this standard objective or subjective?

It shall be noted at this point that in order for a breach of the implied term of trust and confidence to exist, it is not necessary to be proved that the employer intended the repudiation of the contract. The function of the employment tribunal is to examine the employer’s conduct as a whole and to determine whether it is such that its cumulative effect judged reasonably and sensibly is such, that the employee cannot be expected to put up with it.^[10] Whether an employee is entitled to terminate his/her employment contract by reason of the employer’s behaviour does not depend upon whether the employer had intended the conduct to be repudiatory or could reasonably have believed that it would be accepted as such, but upon whether the employer’s conduct, viewed objectively, manifests an intention no longer to be bound by the contract.^[11] In other words, the employer’s behaviour must be such that its effect, judged reasonably, is to disable the other party from performing properly his/her duties and obligations.^[12] It is thus inferred that the applicable standard in such cases is objective and not subjective; it is that of a reasonable person. This is also reflected in Malik v BCCI,^[13] where it was stated that the conduct of the employer must impinge on the relationship between the employer and the employee, in the sense that, looked at objectively, it is likely to destroy or seriously damage the degree of trust and confidence the employee is reasonably entitled to have in his employer. This requires one to look at all the relevant circumstances.

Whether the conduct of the employer constitutes behaviour that justifies the resignation on the part of the employee, is judged by examining and assessing objectively the facts and circumstances of each individual case.

The subjective sensitivities of an employee are not taken into consideration for the purposes of such assessment.^[14]

What kind of an employer’s behaviour and/or conduct may constitute a repudiatory breach for constructive dismissal purposes?      

According to Halsbury’s Laws of England^[15], although there is no exhaustive list of behaviours and/or incidences that may give rise to a claim for constructive dismissal, it was noted that among the types of breach of contract by the employer that may support a finding of constructive dismissal are the following:

a)       A failure to pay wages or unilateral decision to cut pay;

b)      Demotion or other change in status;

c)       A change of job content not permitted or envisaged by the contract;

d)      Undermining a senior employee’s position;

e)      Change of the place of work, or breach of a mobility clause, whether express or implied;

f)        Unilateral change of working hours;

g)       Failure to ensure the employee’s safety;

h)      Breach of the term of trust and respect;

i)        Failure to follow a contractually binding disciplinary procedure;

j)        Imposition of a disciplinary measure in a disproportionate manner;

k)       Failure to provide a reasonably suitable working environment

l)        Failure to deal with grievances properly and timeously.^[16]

An offensive and derogatory behaviour towards an employee may constitute a repudiatory breach giving rise to claims for constructive dismissal. In Palmanor Ltd v Cedron^[17], it was stated that although tribunals have to be careful so as to avoid attaching great importance to words used in the heat of the moment or in anger, there comes a time when the language is such that even if the person using it is in a state of anger, an employee cannot be expected to tolerate it.

Moreover, failure of an employer to adequately support the employees in periods with increased workload may also constitute a behaviour amounting to a repudiatory breach for constructive dismissal purposes. In Seligman & Latz Ltd v Mc Hugh,^[18] the Employment Appeal Tribunal held that the employee was entitled to regard herself as having been constructively dismissed on grounds that the employers were in breach of an implied condition in her employment contract that if she were overloaded, she would have the assistance of a junior and/or apprentice hairdresser and that the breach was fundamental going to the root of the contract.

What role does the time of resignation play in cases of claims for constructive dismissal? What is the right time for an employee to tender his/her resignation in such cases?

The answer to the above question is that the timing of an employee’s resignation plays a crucial role in the outcome of a claim for constructive dismissal. In Western Excavating (ECC) Ltd v Sharp,^[19] it was stated that the employee “must make up his/her mind soon after the conduct of which he/she complains”. This is due to the fact that if the employee leaves a long period of time to lapse between the occurrence of the repudiatory breach and the time of his resignation as a result of such breach, he is quite likely to lose the right to claim that he has been constructively dismissed by the employer as he may be taken to have affirmed the employment contract and waive the repudiatory breach thereof.

In W.E. Cox Toner (International) Ltd v Crook,^[20] it was noted that an employee faced with a repudiation by his employer is in a very difficult position in the sense that if he goes to work the following day, we will himself be doing an act which is consistent with the continued existence of the contract, and he might be said to be affirming the contract. Moreover, if he then accepts his (monthly) salary (i.e. further performance by the guilty party), the risk of being held to affirm the employment contract is even greater. It was further noted that “delay might be serious, not in its own right but because any delay normally involves further performance of the contract by both parties. It is not the delay which may be fatal but what happens during this period of delay”.^[21] Mere delay, unaccompanied by any express or implied affirmation of the employment contract, does not constitute affirmation thereof, but if it is prolonged it may be evidence of an implied affirmation.^[22]

However, it must be noted at this point that if the innocent party further performs the contract to a limited extent but at the same time makes it clear that he/she is reserving his/her rights to accept the repudiation or is only continuing so as to allow the guilty party to remedy the breach, such further performance does not prejudice his right subsequently to accept the repudiation.^[23]

Moreover, in Marriot v Oxford Co-operative Society^[24] it was noted that provided that the employee makes clear his/her objection to what is being done, he/she is not to be taken to have affirmed the contract by continuing to work and be paid for a limited period of time (i.e. continue working under protest for a limited time period), even if his/her purpose is merely to enable him to find another job.

In Waltons and Mors v Dorrington^[25] it was further noted that there is no fixed time limit in which the employee must make up his mind. It depends upon all the circumstances including the employee’s length of service, the nature of the breach and whether the employee has protested at the change. It was also stated that “mere protest will not however, prevent an interference that the employee has waived the breach, although exceptionally, a clear reservation of rights might do so”.

In the Cypriot case Κώστας Mηνά v Κυπριακές Αερογραμμές Δημόσια Λτδ,^[26] the Court held that, although a not so short time period of 3⅟2 – 4 months, has lapsed from the date the breach has occurred (i.e. the unilateral change of the terms of the employment contract by the employer company), the employee had not waived the breach and/or affirmed the employment contract and concluded that the employee had been constructively dismissed. In its abovementioned decision the Employment Tribunal had taken into consideration the employee’s overall attitude during the aforesaid period of 3⅟2 – 4 months, the length of the employee’s employment with the employer company (i.e. twenty-three years), and the fact that the employee was faced with the objective difficulty in finding a job of a similar nature in Cyprus.

Is the employee’s right to a constructive dismissal claim lost permanently in cases of lapse of time?

In the latest leading case Kaur v Leeds Teaching Hospitals NHS Trust,^[27] the Court of Appeal confirmed that in cases where there has been an earlier repudiatory breach which has been affirmed by the employee, if there is subsequently conduct which taken together with the employer’s earlier fundamental breach that causes the employee to resign or plays a part in the decision of the employee to resign, the later act (which may not be itself repudiatory) effectively reactivates the earlier repudiatory breach. The employer’s further act can be described as “reviving” the employee’s right to terminate the contract. An employee who is the victim of a continuing cumulative breach, is entitled to rely on the totality of the employer’s acts notwithstanding a prior affirmation, provided the later act forms part of the series.

It was also noted that “when the threshold had been reached would of course be a matter of assessment in every case, and no one would know whether the employee had jumped either too early or too late until a tribunal ruled”.

In its judgment, the court stated that there is a five-question test for tribunals to consider when determining whether an act and/or an incident may be deemed to be a last straw, enabling an employee to claim that he/she has been constructively dismissed by his/her employer:

1. What was the most recent act (or omission) on the part of the employer which the employee says caused, or triggered, the resignation?
2. Has the employee done anything to suggest that they have accepted (or affirmed) the contract since that act?
3. If not, was that act (or omission) by itself a repudiatory breach of contract (i.e. of sufficient importance to justify resignation)?
4. If not, was it nevertheless a part of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a repudiatory breach of the employee’s contract by showing that all trust and confidence had been destroyed? If it was, there is no need for any separate consideration of a possible previous affirmation.
5. Did the employee resign in response (or partly in response) to that breach?

All that is required for a last straw resignation is that a series of incidents, whether or not previously affirmed, amounts to a fundamental breach of contract. In other words, further contributory acts effectively revive the employee’s right to rely upon the whole series of acts, notwithstanding the earlier affirmation(s). If the employee does not delay his/her resignation from the occurrence of the last of these incidents, his/her constructive dismissal claim may be well-founded.

In Kaur v Leeds Teaching Hospitals NHS Trust,^[28] the claimant was employed by the NHS Trust Hospitals, the Tribunal held that the entirety of the disciplinary and appeal process conducted by the employer and their outcomes were arguably reasonable and that it was not open to the claimant to wait fifteen (15) months after the incident in 2013 to rely on the appeal outcome in 2014 as the last straw entitling her to resign claiming that she has been constructively dismissed.

Is causality between the employer’s conduct and the employee’s resignation a requisite in order for an employee to be able to claim that he/she has been constructively dismissed by the employer? Does the employer’s repudiatory conduct have to be the sole cause of resignation?

Causality between the employer’s conduct and the employee’s resignation is a prerequisite in cases of constructive dismissal.

In Walker v Josiah Wedgwood & Sons Ltd,^[29] it was noted that it is at least a requisite that the employee should resign as a result of the breach of the employer’s relevant duty to him/her, and that this shall demonstrably be the case. Moreover, it was further stated that it is not sufficient if the employee resigns in circumstances which indicate some ground for his/her resignation other than the breach of the employer’s obligation to him/her. The test is whether the employee’s resignation was effectively caused by the employer’s repudiation.^[30] It is not necessary that the repudiatory breach by the employer is the sole cause of the employee’s resignation, it suffices that this is the substantive cause of the resignation.

In Jones v F Sirl & Son (Furnishers) Ltd,^[31]the employee was faced with worsened employment terms and conditions and waited three and a half weeks until she was approached by another firm that offered her a job prior to her resignation. The employee accepted the job offer and claimed that she had been constructively dismissed by the employer. The employment tribunal concluded that the resignation was in response to the job offer and not to the employer’s repudiation. The Employment Appeal Tribunal (EAT) overturned the decision of the employment tribunal and held that the employee had been constructively dismissed as a result of the repudiation of the employment contract on the part of the employer. It was also stated that the test was not what was the sole cause of resignation but rather what in fact was the effective cause.

Who bears the burden of proof in constructive dismissals claims?

The burden of proof in cases of claims for constructive dismissal is on the employee. This actually means that the employee has to show at the Court that the repudiatory conduct and/or actions of the employer left the employee with no other option than to terminate the employment contract and tender his/her resignation as a result.

As already mentioned, according to subsection 7(2) of the Law, in any proceedings before the Labour Disputes Tribunal relating to claims for constructive dismissal (pursuant to subsection 7(1) of the Law), it will be presumed, that the employee has not terminated his employment lawfully until proven otherwise by the employee.

What are the employees’ rights to damages/compensation in constructive dismissal cases?

According to subsection 7(1) of the Law, in cases of constructive dismissal, the employee is entitled to     receive damages/compensation pursuant to section 3 and Tables A and D of the Law as per below:

It is noted that paragraph 4 of Table A of the Law states that, the Employment Tribunal, has absolute discretion as to the determination of the compensation amount awarded to an employee. It is also noted that, except to what is provided above, in the determination of the compensation amount the Employment Tribunal will also take into consideration, inter alia, the following: i) the wages and any other earnings of the employee; ii) the period/duration of employment of the employee; iii) the loss of prospect of the employee in finding another job; iv) the age of the subject matter employee; v) the actual conditions of the employee’s employment termination.

What are non-solicitation clauses contained in employment contracts?

Non-solicitation clauses are contractual terms contained in employment contracts, restricting an employee from soliciting and/or canvassing, directly or indirectly, business or custom from employer’s clients, post-termination of his/her employment with the employer.

Are non-solicitation clauses easily upheld by the Courts?

It shall be stressed at this point that Courts are not willing to uphold non-solicitation clauses, unless it can be proved by the employer that he/she has a legitimate proprietary interest that needs to be protected against the employee in question and that the protection sought by the enforcement of such non-solicitation clauses goes no further than what is reasonably necessary, having regard to the circumstances and the facts of each individual case(Office Angels Ltd v Rainer-Thomas and O’Connor).It is noted that in cases where the Court is not satisfied that a non-solicitation clause meets the aforementioned requirements, it refuses to uphold the clause as, generally, any contractual term restricting an employee’s activities post-termination of his/her employment is considered to be void for being in restraint of trade and contrary to public policy (Gledhow Autoparts v Delaney).

What kind of proprietary interests are capable of being protected by the incorporation of non-solicitation clauses in employment contracts?

The legitimate proprietary interests that can be protected by the incorporation of non-solicitation clauses in employment contracts are mainly customer and trade connections. Client and trade connections actually refer to connections developed between the employee and the trading partners/customers of the employer. Is it noted that in certain cases, “client connections” may also includes potential clients (East England Schools CIC v Palmer and another). Any reference to “client connections” is actually a reference to the personal knowledge and/or power of influence and control an employee may have over the customers of the employer, to such a degree that enables him/her to take advantage of that connection in order to solicit or canvass the business or custom of his/her employer’s clients (East England Schools CIC v Palmer and another; GW Plowman & Son Ltdv Ash).Undoubtedly, in cases where an employee has dealt directly with certain clients for a period of time, he/she has knowledge and influence over the said clients. The clients develop a relationship of trust with the particular employee who, as a result, may exercise the control and influence he/she has gained over the said clients, who rely upon the employee to meet their needs, rather than on the employer’s company (East England Schools CIC v Palmer and another; GW Plowman& Son Ltd v Ash).In most of the cases, the aforementioned relationship built up between the employee and the employer’s clients was developed by the use of the resources of the employer (e.g. marketing budget).

When is a non-solicitation clause considered as being reasonable by the Courts?

Once the employer proves that he/she has indeed a legitimate proprietary interest that needs to be protected against the employee, namely his/her client connections, the employer also needs to demonstrate that the non-solicitation clause is reasonable. As already mentioned, a non-solicitation clause will only be considered as reasonable by the Court if it is proved by the employer that the clause is no wider than what is reasonably necessary for the purpose of protecting the employer’s client connections. In considering the reasonableness of the of a non-solicitation clause the Court may also take into consideration whether or not a covenant of a narrower ambit would have sufficed for the purpose of protecting the employer’s interests. In Office Angels Ltd v Rainer-Thomas and O’Connor, it was stated that a restrictive clause in one form cannot be considered to afford no more than adequate protection of the employer’s relevant legitimate interest if the evidence shows that a restrictive clause in another form, much less far-reaching and less prejudicial to the employee, would have afforded adequate protection.

Other factors that play some role in determination by the Court as to whether or not a restrictive clause is reasonable are the role, duties and responsibilities the employee had in employer’s business. Generally, the more junior the employee, the harder it may be for a restraint, namely a non-solicitation clause, to be upheld by the Court as reasonable. On the other hand, the more senior the employee and the more responsibilities he/she had, the more willing the Court is to uphold a restrictive clause as being reasonable, always taking into consideration the facts of each individual case. In Safety Net Security Ltd v Coppage, it was held that a non-solicitation clause restricting the employee from soliciting and/or canvassing, directly or indirectly, business or custom from clients of the employer for a period of six months, post-termination of his employment was considered as reasonable and was upheld by the Court as the employee had played a large role in the employer’s business as its “outward face” and he had contact with all of the employer’s clients as he had undertaken the role of director. It was stated that the employee had realistically had the power to influence all the clients with whom he had communication during his employment.

What constitutes “solicitation” of clients?

It is noted at this point that solicitation needs something more than simply informing a client of the employee’s departure. There must be an aim and an intention to acquire orders from the client and frequently requires the employee to initiate contact and communication with the client for that purpose (Baldwins (Ashby) Ltd v Maidstone).

How interpretation and construction of non-solicitation clauses affect their validity and enforceability?

The construction and interpretation of non-solicitation clauses play significant role in whether or not these will be upheld by the Court as enforceable. It must be noted that in cases where non-solicitation clauses/restrictive covenants are too wide, the Court will not be willing to interpret them in a more narrow way in order to render them valid and enforceable and will rather treat them as void and/or unenforceable (East England Schools CIC v Palmer and another).

Moreover, where a contract contains several restrictive clauses, these are treated by the Court as being severable. For instance, if a non-competition clause contained in a contract is considered as being too wide but a non-solicitation clause contained in the same contract is considered by the Court as reasonable, the Court will uphold the reasonable clause and render the other clause unenforceable.

According to the Court, the below mentioned criteria apply in order to assess whether a clause or some of the wording contained in a clause can be severed from the rest of the contract (also known as the “blue pencil” test (Tillman v Egon Zehnder Limited; East England Schools CIC v Palmer and another):

• The unenforceable wording can be removed without having to add to or modify the remaining words;
• The remaining clauses/restrictive covenants must be supported by adequate consideration;
• The removal of the unenforceable wording and/or provisions must not generate any major change in the overall effect of the restrictive covenants in the contract of employment.

Τhe role and functions of the secretary as contemplated by the Law are administrative in nature. The secretary cannot assume any executive or managerial powers in the absence of express authority from the Board of Directors of the Company.

Specifically, it is noted that a secretary must not take and/or assume any power entrusted upon the directors. For instance, the secretary cannot summon a general meeting on his/her own as he/she issues and sends notices in regards to general meetings, under the instructions of the Board of Directors.

It is noted that, exempt from certain statutory duties, the responsibilities and duties of the secretary are not stipulated by Companies Law Cap.113 (hereinafter referred to as the “Law”). The duties of the secretary are assigned to him/her either by the Articles of Association of the company, or by the contract of service signed between the secretary and the Company, or by the Board of Directors of the Company, which is the most common case. Moreover, it is mentioned that in practice, certain duties and responsibilities of the secretary are implied by a course of conduct. Ordinarily, the duties and responsibilities of the secretary include, inter alia, his/her presence at all general meetings of the Company and of the Board of Directors, keeping proper minutes of the general meetings and other proceedings, the issuance and dispatch of the necessary notices, under the instructions of the Board of Directors, to the members and other relevant persons in regards to the general meetings etc, the conduct of correspondence with the members of the Company regarding to transfers of shares, calls, forfeiture etc. Additionally, the secretary is responsible for the submission of the relevant returns to the Registrar of Companies. He/she also has the responsibility to keep the books of the Company which relate to the internal affairs thereof, such as the register of members, the register of debentures, the share ledger etc.

Statutory duties

Kindly note that the Law imposes the following statutory duties upon the Secretary:

• In respect of a public company to make the statutory declaration required prior to the commencement of business (s. 104(1) (c) and 104(2)(c) of the Law);
• To sign the annual return and the accompanying documents (s.122 of the Law);
• In case of winding up of the Company by the Court, to verify the statement to be submitted to the Official Receiver (s.224(2) of the Law);
• In respect of a receiver being appointed by debenture holders whose debentures are secured by a floating charge on substantially the whole of the Company’s assets, to verify the statement to be submitted to the receiver (s.341(2) of the Law);

It is noted at this point that according to Palmer’s Company Law (21^st edition), many of the duties imposed upon the companies by the Law, are so clearly within the province of the Secretary that default by the company to comply with such duties and/or obligations shall in appropriate occasions and circumstances give rise to liability on the part of the secretary, where the relevant applicable section(s) imposes liability upon officers in default. This may be applicable in relation to defaults in regard to the following obligations:

• To deliver a return of allotments (s.51 of the Law);
• To issue share or debenture certificates (s.78 of the Law);
• To cause the registration of charges with the Registrar of Companies (s.91 and 92 of the Law); and to keep the Company’s register of charges and make it available for inspection (s.99 and 100 of the Law);
• To publish the Company’s name outside its places of business, on its seal and on its publications (s. 103 of the Law);
• To permit the inspection of the register of members (s. 108 of the Law);
• To permit the inspection of the register of debenture holders and to forward copies and to forward copies of the trust deed (s.84 of the Law);
• To keep the register of directors and secretaries (s.192 of the Law);
• To ensure the publication of particulars with respect to directors in trade catalogues, circulars, etc. (s. 193 of the Law);
• To keep minutes (s. 139 of the Law) and to make available for inspection the minutes of the general meetings (s. 140 of the Law);
• To send out copies of the balance sheets and auditors’ reports (s. 152 of the Law).

It is mentioned that in many of the aforementioned cases, the secretary is liable to a fine in the event the Company fails to comply with its obligations under the Law. However, the conditions of criminal liability may vary. For instance, in sections 104(6) and 341(5) of the Law, the statutory provisions lay down their own criminal sanction in cases of non-compliance. On the other hand, in the instance of sections 120(2) and 78(2) of the Law, the provisions refer to the “default fine” as defined in section 375 of the Law. There are also instances, such as section 108(3) of the Law, where both a fine and a default fine are mentioned. It is noted at this point that in cases where under the applicable provision of the Law a fine is imposed on the secretary in his/her capacity as the “officer in default”, mens rea has to be proved against him/her due to the fact that section 375(2) of the Law provides that the phrase “officer in default” means an officer of the company “who knowingly and wilfully authorises or permits the default, refusal or contravention mentioned in the enactment”.

In any case, the Board of Directors of the Company has the power to dismiss the Secretary in case the secretary exercises his/her duties negligently and/or without due diligence.

The rights and obligations of the employer and employee in Cyprus are regulated by reference to the terms of the respective employment agreement (or such other instrument giving rise to an employment relationship) which are complemented by a series of statutes / legislative instruments setting out, among other things, the fundamental rights of employees and basic obligations of employers. Importantly, beyond the express contractual terms contained in any employment agreement, the employer and the employee are, unless expressly agreed to the contrary, bound by a series of implied terms, the most prominent of which is the implied term of mutual trust and confidence.

In stark contrast to commercial transactions where there is a presumption as to the equality of negotiating strength as between the contracting parties, the employment relationship has long been recognised as an idiosyncratic contractual relationship due to the inequality of bargaining power as between the employer and the employee. Indeed, most employment contracts are usually standard-form contracts drafted by the employer and presented to prospective employees on a take-it-or-leave-it basis ensuring that the employer negotiates from a position of strength.

In this respect, it is not uncommon for an employer to seek to restrict the ability of an employee to pursue or take up employment at a third party (usually a competitor of the employer) either while the employment relationship is in force, or following the termination thereof. As a general rule, where a clause / provision in the employment agreement amounts to or has the effect of a general and unqualified restriction on the ability of the employee to pursue a particular trade or occupation, it will most likely be deemed to be invalid and unenforceable against the employee on grounds that such a clause imposes an excessive restriction on the fundamental right of an employee to freely pursue employment. This general rule appears to apply with equal force in relation to the period while the employment agreement is in force and to the period following its termination, although in both cases it may still be possible, for an employer to restrict the ability of an employee to take up a position of employment at a third party provided certain criteria are satisfied.

Employment by a Third Party While the Employment Relationship is in Force (Simultaneous Employment)

It should be stressed from the outset, that it is not always the case that an employment agreement will contain an express provision dealing with the possibility of employment by a third party. In such cases, it can be said that where the possible employment by a third party does not violate the terms of the main employment agreement, and does not adversely affect the interests of the main employer, then, at least theoretically, there is no impediment to the employee being employed by a third party in addition to his employment by the main employer. This of course, is subject to the proviso that such employment by a third party is not contrary to any law. At the same time however, it must be stressed that any additional employment should not come at the expense of the main employment and in this respect the employee must not place himself in a position where his duty of loyalty towards the main employer would be compromised (as would be the case of being employed by a third party – competitor of the main employer).

To take an example, let us assume, that Janice is employed as a hairdresser at Daisy’s Hair Saloon on a full-time basis. Pursuant to the terms of her employment agreement, her normal hours of work are from 8 a.m. – 6 p.m. from Monday to Friday. A few weeks after the commencement of her employment at Daisy’s Hair Saloon, Janice is offered a part-time job as a waitress at Dino’s Pizzeria where she will only be required to work during the weekends.

Provided Janice’s employment agreement is silent on the matter of simultaneous employment by a third party, Janice would not be precluded from working for Dino subject to the proviso that Daisy’s interests (in her capacity as the main employer) are not adversely affected by Janice agreeing to take up the position of waitress at Dino’s Pizzeria and/or provided that Janice has obtained the express consent of Daisy in her capacity as the ‘main employer’. Furthermore, it can be argued that the nature of business of Dino’s Pizzeria is not such as to be considered competitive to the business of Daisy’s Hair Saloon; at the same time, Janice will only be working during weekends meaning that her employment at Daisy’s will not be affected in any way by reason of her employment at Dino’s. If, on the other hand, Janice was required to work at Dino’s on weekdays from, say 5 p.m. to 11 p.m., then Daisy would be entitled to object to Janice being employed by Dino since this would clearly interfere with Janice’s obligations towards Daisy under the main employment agreement.

Non – Competition Clauses Relating to the Period Following the Termination of the Employment Relationship

Clauses relating to the period following the termination of the employment relationship may be upheld in instances where the restriction imposed on the right of the employee to pursue or carry on a trade or occupation is not excessive. Suppose now that Daisy, weary of the growing popularity of Jean’s Beauty Parlour, a competing business located in close proximity to Daisy’s Hair Saloon, is contemplating the addition of a clause in the employment agreements entered into with any new employees to the effect that following the termination of the employment her employees shall be precluded from taking up employment at any competitor of Daisy’s Hair Saloon. As already touched upon, the generality of the restriction in question will invariably render the clause as invalid and unenforceable because it violates a fundamental right of an employee to seek employment.

According to section 18 of the applicable Termination of Employment Law of 1967, an employee is considered as being redundant in cases where his/her employment is terminated by the employer for one of the following reasons:

• The employer has ceased or intends to cease the operation of the business in which the employee is employed.
• The employer has ceased or intends to cease the performance of business activities in the area where the employee is employed.
• Due to automation, mechanisation or any other change in methods of organisation and/or production which decreases the necessary number of employees.
• Due to change in the products or in production methods or in the skills the employees needed to possess.
• Due to closing of various business departments.
• Due to credit difficulties.
• Due to shortage of orders or raw materials.
• Due to shortage of means of production.
• Due to significant reduction of the work volume.

Right to receive redundancy payment

According to section 16 of the Law, employees have the right to redundancy payment if they have been continuously employed for at least 104 weeks by the same employer and their employment was terminated for redundancy reasons.

It is worth mentioned, that in cases of seasonal employment by the same employer where the period of annual employment equals or exceeds the period of fifteen weeks, the employment is considered to be continuous.

Cases where the right to receive redundancy payment is lost

An employee dismissed for redundancy reasons, is not entitled to redundancy payment in cases where:

1. The employer, prior to the termination of employment of the employee, offers him/her an alternative and appropriate employment opportunity but the said employee unreasonably refuses the employer’s offer.
2. The business was transferred as a going concern to a new employer who renewed the employment contract of the employee in question.
3. The employer company intends to transfer the said employee to another company that is connected to it, in an employment position that fits the employee in question.
4. Prior to the termination of the employment, another company in which the first employer is the major owner or has significant control, offers the said employee a proper employment position (section 20 of the Law).

Calculation of redundancy payment amount

The redundancy payment amount is calculated on the basis of the period of continuous employment of the employee and his/her latest wage. More specifically, the redundancy payment amount is calculated in the following manner:

If the employee did not receive a fixed wage, the wage that is taken into consideration for the purposes of calculation of the redundancy payment is the average weekly wage the employee received during the last twelve weeks before the termination of his/her employment.

If the employment period is not a whole number of years, the rest employment period shall be considered as an entire year, but only if this period equals or exceeds the period of twenty-six weeks.

Period of employment

The employment period is calculated in weeks. Specifically, the following weeks are taken into account for the purpose of calculation of the entire period of continuous employment:

• A week during which the work period of the subject matter employee, equals or exceeds the period of 18 hours.
• A week during which the employee was unable to work because of maternity, sickness, occupational injury, or ailment.
• A week during which the employee was absent due to non-permanent work cessation.
• A week during which the employee was absent, in such occasions that by law, arrangement or custom, the employment is considered as being continuous by the Industrial Dispute Court;
• A week during which the employee was absent because of parental leave.

Process followed for receiving the redundancy payment amount

If the employee is entitled to redundancy payment from the Redundancy Fund he/she shall submit a particular application form, the SIS 600, which can be acquired from any Social Insurance District Office or Citizen Service Centre. The aforementioned form needs to be submitted to the Social Insurance District Office or Citizen Service Centre within three months from the date of termination of employment. The redundancy payment amount is deposited in the employee’s bank account.

Notice provided by the employer to the employee

The employer is under an obligation to give written notice to the employee in relation to his/her dismissal. The minimum period of notice the employer shall provide to the employee depends on the period of his/her employment and is calculated in the following manner:

• Employment up to 6 months, no notice is required
• Employment between 6 months to 1 year, a minimum period of 1-week notice shall be given
• Employment between 1 year to 2 years, a minimum period of2 weeks’ notice shall be given
• Employment between 2 years to 3 years, a minimum period of 4 weeks’ notice shall be given
• Employment between 3 years to 4 years, a minimum period of5 weeks’ notice shall be given
• Employment between 4 years to 5 years, a minimum period of 6 weeks’ notice shall be given
• Employment between 5 years – 6 years, a minimum period of 7 weeks’ notice shall be given
• Employment for 6 years or more, a minimum period of 8 weeks’ notice shall be given

It shall be noted that in cases where the contract of employment provides for a longer notice, the minimum notice specified in the employment contract shall prevail.

Other notices

In cases where the employer wishes to dismiss the employees for redundancy reasons, he/she is under an obligation to give at least one month’s notice before the cessation of the employment to the Minister of Labour and declare the number of employees who will lose their jobs due to redundancy, the affected branch, the names, professions and family responsibilities of the employees that will be dismissed, and provide the reasons for this action (section 21 of the Law).

Unlawful dismissal

If the employee was unlawfully dismissed by the employer, he/she can submit a special application form to the Industrial Disputes Court within a period of twelve months from his/her dismissal or within nine months from the Redundancy Fund reply.

Definition

Article 2 of the European Framework Agreement on Telework of 2002 defines “telework” as a form of organising and/or performing work, using information technology, in the context of an employment contract/relationship, where work, which could also be performed at the employer’s premises, is carried out away from those premises on a regular basis.

The European Framework Agreement on Telework is the first “autonomous agreement”, agreed by the Social Partners of Europe in 2002 and it is binding merely on the signatories. The signatories are responsible of implementing the content of the Agreement at a national level.

General Principles governing Teleworking emerging from the European Framework Agreement

1. Voluntary nature of telework (Article 3): The employees and the employer may introduce telework only by mutual agreement. Accordingly, there is no right as such to telework and there is no obligation to do telework. If telework is not part of the initial job description, and the employer makes an offer of telework, the worker may accept or refuse this offer. If a worker expresses the wish to opt for telework, the employer may accept or refuse this request. Additionally, a switch to telework does not affect the employment status.  
2. Discontinuance: The European Framework Agreement also ensures that both the employee and the employer may discontinue telework at any time without prejudice to the employment relationship and working conditions. On the opposite side, if the worker refuses to change to telework this cannot be a reason for termination of the employment relationship or for changing terms and conditions.  
3. Equal Treatment and Collective Rights (Article 4): Teleworkers enjoy the same collective rights as their colleagues at the employer’s premises. For example, they may participate in or stand for works council elections and have to be considered when calculating thresholds for bodies of collective representation. These rights are guaranteed by applicable legislation and collective agreements. Among the Member States, a widespread approach was taken to provide teleworkers with the same protection, privileges and obligations as ordinary workers.

There is no obligation for the Employers in the European Framework Agreement to create a new and specific telework set of regulations. The obligation is merely the equal treatment of all employees regardless of their status of employment. On the other hand, in order to take into account the particularities of telework, specific agreements may be necessary. 

4. Working Time (Article 9): The European Framework Agreement recognizes the general applicability of working time regulations to telework, while at the same time stating that ‘the teleworker manages the organization of his/her working time’. In doing so, the agreement offers more flexibility to teleworkers in the arrangement of their working schedules compared with employees who work at the company premises. Telework Schedule is something very important. The employment contract has to indicate telework Days and hours but the work hours may be subject to change. 
5. Workload and Performance: The agreement also stipulates that teleworkers’ workload and performance standards are equivalent to those of other employees. 
6. Health and Safety (Article 8): According to the European Framework Agreement and Directive 89/391, the employer is responsible for health and safety measures at the teleworker’s workplace. For instance, the employer has to inform the teleworker of risks related to the work. This applies, in particular, to risks related to working with computer equipment. The teleworker is, in turn, responsible for correctly applying these safety policies.

It is understandable, though, that in practice it is sometimes problematic for the employer to control and guarantee adequate working conditions, as measures are difficult to implement in

workplaces outside of the employer’s premises. 

7. Equipment (Article 7): As a general rule, the employer is responsible for providing, installing and maintaining the equipment necessary for regular telework unless the teleworker uses his/her own equipment. Of course, the employer compensates or covers costs directly caused by the work of the employee (e.g. communication costs, internet connection) and provides the teleworker with an appropriate technical support facility. The employer is liable regarding costs for loss and damage to the equipment and data used by the teleworker. On the other hand, the teleworker has to take good care of the equipment provided to him/her and does not collect or distribute illegal material via the internet. 
8. Training: Teleworkers have the same access to training and career development as comparable workers at the employer’s premises and are subject to the same appraisal policies as these are their workers. Teleworkers receive appropriate training targeted at the technical equipment at their disposal and at the characteristics of this form of work organisation. 
9. Access at Workplace: The employer has access to the teleworker’s workplace. If the workplace is at home, the consent of the teleworker is required before access can be gained.
10. Privacy (Article 6): It is of great importance when the place of work is the teleworker’s home. The European Framework Agreement states that ‘the employer respects the privacy of the teleworker’. If the         employer needs to access the workplace, this can only be done after prior notification and with the consent of the employee. Any kind of monitoring system can only be introduced after the worker                 representatives have been informed and consulted, as provided in the Directive 90/270 on visual display units.
11. Data Protection (Article 5): The employer is responsible for taking the appropriate measures to ensure the protection of data used and processed by the teleworker for professional purposes. The employer informs the teleworker in particular of any restrictions on the use of equipment and of sanctions in the case of non-compliance; for example, in relation to restrictions to use the equipment for private purposes.
12. Termination: The agreement is not a guarantee of employment and can be terminated at any time by either Organization or employee.   A telework arrangement may never be allowed to continue uninterrupted if it is detrimental to work quality, client service, the work unit, or the organization. In such situations the manager will make a good faith effort to work with the employee to resolve the situation, but if the problem cannot be resolved, the manager has a responsibility to terminate the agreement.

Termination of the telework agreement should be made for sound business reasons which the employee is entitled to know. In the event of termination of the agreement, the employee will be notified and provided the reason(s) for the termination in writing.In the event this agreement is terminated, the manager will make every attempt to provide sufficient notice to allow the employee to make appropriate dependent care or transportation arrangements.The Organization will not be held responsible for costs, damages or losses to the employee resulting from termination of the agreement.

Agreement between employer and teleworker

A negotiated agreement between the parties is necessary to arrange issues such as work organisation and the modalities for changing work from the employer’s premises to telework and vice versa.

The employer is obliged to provide the teleworker with relevant written information in accordance with Directive 91/533/EEC, namely the conditions applicable to the contract or employment relationship. The specificities of telework normally require additional written information on matters such as the department of the undertaking to which the teleworker is attached, his/her immediate superior or other persons to whom she or he can address questions of a professional or personal nature, reporting arrangements, etc.

The remote workers have equal rights regarding working conditions, workload and performance standards as employees working on the employer’s premises.

The Employers can determine a general framework for occasional remote work applicable within the company, covering the following items:

• The compatible functions/activities within the Company
• The procedure

The directive, though, does not apply to employees with a contract of less than 1 month or with a working week of fewer than 8 hours.

Essential Information of a teleworking contract:

• the identity of the parties and the place of work;
• the nature of the job;
• the date the contract begins and its duration;
• the amount of payment;
• the working hours;
• the collective agreements governing the employee’s conditions of work.

Procedural Aspects:

• The employer must give the employee a document containing the information required within 2 months of commencement of employment.
• Where an employer requires an employee to work in a different EU country (‘expatriate employee’), he must give that employee the document containing the information required before departure. That document must set out certain additional information, such as the currency of payment and the length of employment. These provisions do not apply where the duration of employment abroad is 1 month or less.
• The employer must give the employee a written document within 1 month of any change in circumstances.

The Employers can also determine a general framework for occasional remote work applicable within the company, covering the following items:

• The compatible functions/activities within the Company
• The procedure to apply and to grand occasional remote work
• The necessary equipment or technical support eventually provided for the employer
• The possible availability of the employee
• The possible remuneration to be paid by the employer, covering the cost of the occasional remote work

In addition, teleworkers must ensure the following:

• The protection of organization data on disk, hardcopy, or on portable devices from theft, loss, or unauthorized access during transit and at the alternate worksite.
• That approved firewalls and anti-virus software are on all remote site computers and are updated daily with current definitions.
• That flash drives or other portable drives are scanned for viruses before used for uploading or downloading data.
• Sensitive information in hardcopy form is returned to the office or shredded.
• All work is backed-up according to organization procedures.
• The organization’s network is not accessed from the remote worksite or other locations unless with advance approval and for approved purposes.
• The employee agrees to follow the organization’s guidelines pertaining to the handling of public records.

Intellectual Property

Products, records, documents, inventions and discoveries made while teleworking are the property of the Organization.   The employee is expected to comply with the Organization’s policies regarding inventions and copyrights regardless of the work location or whether work was performed on equipment owned by the organization or the employee.

It is worth noting that Cyprus is one of the six countries that have not yet implemented the Framework Agreement on Telework. There is also no specific telework legislation in Cyprus, even though there is no conflict between current national legislation and the Framework Agreement on Telework to justify its non-implementation. To date, the Republic of Cyprus has not taken any initiative to implement the content of the Telework Agreement.