Presented by © McGrigors LLP 2009 EMPLOYMENT LAW AND THE EXPAT Gary Freer, Partner in Employment Law McGrigors LLP

2 © McGrigors LLP 2009 EMPLOYMENT LAW AND THE EXPAT Types of International Workers Employees transferred from the UK to another country Employees transferred from abroad to the UK Employees who work partially in the UK and partially abroad Employees who have no fixed place of work

3 © McGrigors LLP 2009 EMPLOYMENT LAW AND THE EXPAT Which Law Applies: Why an Issue? It is not always clear which country’s law applies Multiple countries’ laws can apply Applicable law determines basic legal framework, possible causes of action and available remedies – frames the “game plan”  Unfair dismissal protection  Notice and severance requirements  Anti-discrimination laws  Enforceability of restrictive covenants

4 © McGrigors LLP 2009 EMPLOYMENT LAW AND THE EXPAT Rome Convention If contract contains a “choice of law” clause, that law will apply, unless overridden by the “mandatory rules of law” of the host country If no choice of law clause, it will be the law of the country in which the employee habitually carries out his work unless the contract is more closely connected to another country Proposed replacement of the Rome Convention by the Rome I Regulation will not affect the position

5 © McGrigors LLP 2009 EMPLOYMENT LAW AND THE EXPAT Extraterritorial application of European Law Mandatory laws in the home country may continue to apply to assignee The law of each home country will be different In UK unfair dismissal rights may extend to assignees working abroad UK discrimination laws may also extend to assignees working abroad Each case should be considered on an individual basis

6 © McGrigors LLP 2009 EMPLOYMENT LAW AND THE EXPAT Bleuse v MBT Transport UK Working Time Regulations applied to a lorry driver who worked in Austria and Germany Employer was an English company Contract of employment was subject to English law Unfair dismissal complaint unsuccessful Working Time Regulations were EU rights so had direct effect

7 © McGrigors LLP 2009 EMPLOYMENT LAW AND THE EXPAT UK Discrimination Law Tradition v X+Y- The Issues Section 10 of Sex Discrimination Act – if any employee works “wholly or partly in Great Britain” they are protected by UK sex discrimination legislation This case concerned the previous wording – was the employee employed “wholly outside Great Britain”? The result applies equally to the present wording of the SDA and all other UK discrimination statutes

8 © McGrigors LLP 2009 Tradition v X+Y- The Issues Appellant had been employed for three years in Paris and then two years in London. She alleged that there had been a series of alleged incidents of sexual harassment over the whole five year period: but did the UK Tribunal have jurisdiction over the incidents which had occurred in the period in which she was working in France? No – at the time those alleged acts of discrimination occurred she was working wholly outside the UK Apply the statutory test to facts as they are at the time of the alleged discrimination EMPLOYMENT LAW AND THE EXPAT

9 © McGrigors LLP 2009 EMPLOYMENT LAW AND THE EXPAT Extraterritorial Application of American Federal Law U.S. law will follow expatriate to host country Three U. S. federal anti-discrimination laws apply overseas: Title VII (race, national origin, religion, sex ) ADEA (age 40 and over) ADA (disabilities) Conditions for extraterritorial application: U.S. citizens; and Employed abroad; and By U.S. companies or their subsidiaries (companies controlled by U.S. corporations)

10 © McGrigors LLP 2009 EMPLOYMENT LAW AND THE EXPAT Extraterritorial Application of American State Law Generally, state law applies only to acts committed within the state Unlike the federal Title VII, ADEA and ADA, the state legislatures generally have not expressly extended their state anti-discrimination laws to apply extraterritorially Regardless, state anti-discrimination law may apply if there are sufficient connections between the expat’s terms and conditions in the host country and the U.S. corporate office Not an extraterritorial application of state law, but applying state law to decisions made and conduct taken in the state pertaining to the expat

11 © McGrigors LLP 2009 EMPLOYMENT LAW AND THE EXPAT Expats and American State Law – A Recent Court Illustration Hart v. Dresdner Kleinwort Wasserstein Securities, LLC (SDNY 2006) Plaintiff transferred to London 4 years prior to filing suit Claims included a claim of discrimination under the New York State Human Rights Law (“NYSHRL”) Plaintiff reported to two supervisors, one in London; another in NY Decisions about her pay, bonuses and promotions made in NY Sufficient connections with NY during international assignment to the UK Decision: NYSHRL applies to some claims

12 © McGrigors LLP 2009 EMPLOYMENT LAW AND THE EXPAT Jurisdiction In practice, parties are free to agree which courts will have jurisdiction to resolve contractual disputes In the absence of such an agreement, complicated rules based on international conventions and forum non conveniens will have to be applied

13 © McGrigors LLP 2009 EMPLOYMENT LAW AND THE EXPAT Application of Jurisdiction and choice of law Samengo-Turner v J&H Marsh & McLennan English employee subject to restrictive covenants governed by NY law NY court upheld enforcement of covenants. Employee had proceedings restrained by English court as employee can only be sued in court of his domicile. Duarte v Black and Decker Restrictive covenants expressed to be governed by Maryland law would not be upheld in English court if the covenants would not be enforceable under English law as a matter of public policy.

14 © McGrigors LLP 2009 EMPLOYMENT LAW AND THE EXPAT The International Assignment Letter Variation of domestic contract of employment? Does it need to cover confidentiality and restrictive covenants? Check compatible with law of host country Issues to consider  Sick pay  Maternity leave  Right to terminate assignment

15 © McGrigors LLP 2009 EMPLOYMENT LAW AND THE EXPAT Dismissal considerations Is there an obligation to repatriate? Which dismissal laws apply? Dual contracts

16 © McGrigors LLP 2009 EMPLOYMENT LAW AND THE EXPAT Hunt v United Airlines (2008) Ms Hunt was a flight attendant, employed by a US airline and based in Paris; She was intended to be transferred from Paris to London; She became ill, never moved to or worked in London; Ill health process handled in the USA, ended in dismissal. Did the UK Tribunal have jurisdiction to hear a claim for unfair dismissal? Answer – NO. Focus on what actually happened, not on what might or ought to have happened.

17 © McGrigors LLP 2009 EMPLOYMENT LAW AND THE EXPAT Halliburton v Ravat (2008) Assigned from UK to work in Libya for German subsidiary; His contract specified UK law and jurisdiction; Promised, when sent, that he would remain protected by UK law while working overseas; Dismissed for redundancy in 2006 by line manager based in Cairo. Question – Could UK tribunal hear an unfair dismissal claim? Answer – NO – what the contract said, and the reassurance given, were irrelevant.

18 © McGrigors LLP 2009 EMPLOYMENT LAW AND THE EXPAT GSK & Laboratories GSK v Rouard (2008) M. Rouard employed by both French and English Companies; Dismissed by both, wished to claim against both; General rule – within EU each Company must be sued separately in France and UK; Article 6(1) of EU legislation allows both defendants to be sued in same member state if certain conditions were satisfied. Decision – this exception does not apply to employment claims. M. Rouard had to bring separate actions.

19 © McGrigors LLP 2009 Contact details: Gary Freer Partner McGrigors LLP 5 Old Bailey London EC4M 7BA DDI: Fax: