Executive sues employer over New York posting

War on Terrorism: After effects of September 11
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The Independent US

A British executive living in New York whose young son witnessed the attacks on the World Trade Centre is suing his employer after being refused permission to return home to work in London.

The senior fund analyst says that his son, who is seven, is traumatised after watching the two hijacked jets crash into the twin towers, and wakes up screaming in the night.

But the analyst's British employer is asking him to stick to the terms of his contract, which he signed before 11 September when he agreed that he would set up the firm's New York office.

His lawyers claim that the fund management company is in breach of health and safety obligations because it is not taking into account the potential psychological harm to the boy. They also argue that the company's insensitive behaviour amounts to constructive dismissal.

The man agreed to go to New York in August after his marriage broke down. His office was five blocks from the World Trade Centre and his son was at school near by. Neither he nor his son was injured in the attack, but they both witnessed the explosions. The fund analyst's solicitor, Meriel Schindler, of the London law firm Withers, said: "He now feels that the relocation was a mistake and is desperate to return home."

British lawyers are acting in another three cases in which senior executives are taking legal action against their employers for refusing to alter the terms of their contracts after the events of 11 September. Experts on employment law said that the cases would have implications for thousands of city workers who wanted to return or were refusing to be relocated to New York.

In one case, the City solicitors Lewis Silkin is acting for a huge US advertising group that wants an American executive to honour a contract to move to London. When the employee signed the contract, he asked for a clause that allowed him to fly home every three weeks to visit his family in America. But since 11 September, he says, the clause has become unworkable because of the heightened threat of airline terrorism.

Michael Burd, of Lewis Silkin, said it would be difficult for the employee to escape the contract terms. "11 September has not changed anything in the contract," he said. "But the company is negotiating with him to find a solution."

But Ms Schindler of Withers, who is acting for two other employees in disputes over relocation contracts affected by 11 September, said: "If the fears are well founded, it would be likely to be a breach of trust and confidence to operate a contractual mobility clause in such a way as endangers the health and safety of an employee. If the employer does not back down, the employee could accept this breach, resign and claim constructive dismissal."

She added: "Employers have a duty to safeguard employees' health and safety so far as reasonably practicable both in the workplace and where they are sending them abroad, whether temporarily or permanently."

Janet Gaymer, a leading employment lawyer, said the cases raised interesting issues. "Workers in this country will be able to rely on the Human Rights Act, which protects a worker's right to a family life – but not if they are based in New York [because the Act isn't recognised there]. Since 11 September, employers need to be more sensitive. Employers may have the legal right to enforce the contract but they should also be asking what is the right thing to do."

Last month, the advertising and marketing company WPP tried to pull out of a £432m bid for a media-buying agency, Tempus, arguing that the events of 11 September had changed the nature of their business. But the City's takeover panel in London rejected the claim, saying there was no "material adverse change" from 11 September.

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