Transcript Sexual Harassment (including the problem of harassment by

Key issues for Expatriate
Assignments and
UK employment rights
Anna Birtwistle, CM Murray LLP
17 May 2011
CM MurrayCM
LLP:
Murray
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LLP: Specialists
in Employment,
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Partnership
and
and
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• City of London is the
world’s leading
international banking
sector
• Currently 1,117 firms in
the financial sector are
majority foreign owned
* Source IMAS
Country
No. of Foreign
owned financial
services
companies in the
UK
USA
548
Switzerland
67
Germany
57
France
53
Japan
42
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*
Overview
1.
Red flags in managing
international employment
arrangements
2.
Which country’s laws
apply?
3.
Choosing the most suitable
type of contract
4.
Top 10 key provisions for
expatriate assignments
CM MurrayCM
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Red Flags in managing international
employment arrangements
•
The contracts rarely tie up
•
No one has thought about
the end of the
secondment
•
Not following procedures
or allowing enough time
•
Overseas line managers
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Red Flags in managing
international employment arrangements
• Cultural sensitivities
– Religion
– Business etiquette
• Language
• Pre-departure training
CM Murray LLP: Specialists in Employment and Partnership Law
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Which country’s laws apply
Some Key Concepts:
• Governing Law: the law to interpret the
employment contract (choice of parties)
• Mandatory Laws: compulsory employment laws
(these generally cannot be chosen)
• Jurisdiction: The question of whether or not the
Court Tribunal can hear the claim
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Governing Law (Applicable
Law)
Rome I Regulation
•
Article 3: Freedom of choice but no
derogation from mandatory laws
•
Article 8 governs individual
employment contracts:
–
–
•
Parties free to choose the law governing
the contract BUT such choice may not
result in depriving the employee of the
protection
of
mandatory
laws
•
Where parties have not chosen the
governing law, the contract will be
governed by the law of the Country in
which, or, failing that, from which the
employee habitually carries out work.
Article 21: The governing law may not
be applied if it is manifestly
incompatible with the law of the forum.
Contractual Obligations:
Rome convention-pre17 December 2009
Rome I Regulation-post 17 December 2009
Chunilal v Merrill Lynch [2010] EWHC 2720
Duarte v the Black and Decker Corporation
[2007] EWHC 2720
•
Non-Contractual obligations:
Rome II Regulation
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What are mandatory laws?
•
Laws that cannot be derogated from e.g. in the
UK: rights on termination, notice on dismissal,
working time, discrimination protections and
right to the minimum wage
•
How to determine which country’s mandatory
laws will apply:
– Where employee habitually carries out
work; or
– Country in which business through which
employee was engaged is situated; or
– Some other country if it is more “closely
connected” with that country.
•
Posted Workers Directive
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Jurisdiction: Where can claims be brought?
Contracts of employment:
•
•
Employer can only sue in
employee’s country of
domicile
Employee has choice of suing:
–
In
employer’s
EU
domicile/deemed domicile
–
EU place where employee
habitually carries out work;
or
–
If no such place, the EU
place of hire
•
Brussels I Regulation:
– Defendant domiciled in EU
– Civil or commercial matter
•
UK: Civil Jurisdiction and
Judgments Order 2001
•
Pre dispute “exclusive
jurisdiction” clauses will not
work!
Samengo – Turner V Marsh & McLennon (services)
Limited [2007] EWCA Civ 723
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Extra territorial reach of UK statutes
Lawson v Serco
• Domestic employment law
– ERA 1996
– Lawson v Serco
• European derived law
– The “Bleuse” Principle:
Construe territorial scope to give effect to
directly effective EU rights
• Discrimination
– Pre EQA
Test set out by statute
However note application of Bleuse principle in
MoD v Wallis and Grocott [2011] EWCA Civ 231
– Post EQA
3 broad categories
1.
2.
3.
Standard cases – employee
working within Great Britain
Peripatetic employees e.g.
pilots; and in exceptional
circumstances,
Expatriate employees in
following categories:
- British enclave
- Posted abroad for purposes of a
British business
- “Equally strong” connections
with Great Britain/British
employment law
(Serco Ltd v Lawson, Botham v Ministry
of Defence and Crofts v Veta [2006]
UKHL 3)
Lawson v Serco, pre EQA test or apply Bleuse
principle?
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Choosing the most suitable type of
contract
•
Ultimately tax, social
security or immigration
led
•
Length of assignment
•
Division of
responsibilities between
host and home country
company
•
Intercompany
agreement on
secondment?
Options:
• Secondment
• Dual/multiple contracts
• Local employment contract
• International standardized
contract tailored to local laws
Secondment
Home
Company
Intra Company agreement
Host
Country
Company
Employee
CM MurrayCM
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Top 10 key provisions for expatriate
assignments
•
Immigration
Assignment and continued employment to be conditional upon obtaining and retaining
appropriate immigration documentation
•
Pay and Benefits
•
Preserving pension issues
Do pay and benefits need to be suspended in employee’s “home” contract?
In what currency/ies should employee be paid?
Is a provision required in the expatriate agreement to preserve pension rights?
Will the employer continue to make payments into the employee’s pension fund during
the assignment?
•
Tax
Does tax equalisation or protection need to be considered (e.g. if the employee will be
subject to a higher tax regime in the host country)?
Are there any taxation issues that might arise at the end of the assignment?
•
Relocation costs
Should a cap be included in the agreement as to the cost of shipping/storing of
belongings?
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Top 10 key provisions for expatriate
assignments
• Allowances
Should relocation, cost of living, disturbance (out of pocket) and/or hardship allowances be provided?
• Accommodation
Consideration to be given to level of contribution towards rent.
Is the company willing to pay for the services of a rental agency/make a contribution to temporary
accommodation costs prior to the employee finding permanent accommodation?
• School fees
Specify the level of any contribution to schooling fees of the employee’s children.
• Length of secondment and period of notice
Include a clause clearly defining the anticipated length of assignment but allowing termination on earlier
notice.
Will the company consider allowing the employee to be localised at the end of the assignment?
Consideration to be given to the level of and circumstances in which repatriation costs will and will not be
paid.
• Company handbook
Ensure that the contract identifies the rules by which the individual will be governed when working abroad and
make sure that any global handbooks which are stated to apply to the expatriate are consistent with local
laws.
CM MurrayCM
LLP:
Murray
Specialists
LLP: Specialists
in Employment,
in Employment
Partnership
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Business Immigration
Law
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Speaker Details
If you have any questions, please do not hesitate to contact:
Anna Birtwistle
CM Murray LLP
37th Floor
One Canada Square
Canary Wharf
London E14 5AA
United Kingdom
Phone: 00 44 (0)207 718 0090
Email: [email protected]
Website: www.cm-murray.com
CM MurrayCM
LLP:
Murray
Specialists
LLP: Specialists
in Employment,
in Employment
Partnership
and
and
Partnership
Business Immigration
Law
Law