Don't sink overseas

Ian Hunter explains the hazards of taking employment abroad and how they can be avoided
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The Independent Online
So, farewell Paul Daniels and goodbye Andrew Lloyd-Webber. If reports are to be believed, these two, as a result of Labour's victory, will soon join fellow British workers overseas. They will hope to have a happier time of it than "David". Trying to enforce his legal rights 8,000 miles from home would have been difficult enough but the absence of a clearly drafted employment contract made it virtually impossible. David was fortunate - a lot of moral pressure and some sound legal advice persuaded his employers to reach a satisfactory settlement. Others have not been as fortunate.

The rapid economic expansion in the Pacific basin and continued development in the Middle East has seen a rise in demand for British expertise overseas. However, there has a parallel increase in the number of claims by overseas employees abandoned when the working relationship turned sour.

Ex-pats are often in strong negotiating potion when a post becomes available. They should use it. A little time and expense invested at the outset can save a lot of worry later.

A contract for employment overseas should cover a number of basic issues, including which law governs the contract and the jurisdiction in which any dispute can be heard.

In Britain, in the absence of any express or implied choice of law, the contract will generally be governed by the laws of the country where the employee habitually works. That could prove disastrous. The employee should ensure that both the jurisdiction and the governing law clauses refer to the country where he is most likely to wish to enforce his rights. Failure to take that precaution may force the employee to pursue a claim thousands of miles from home, the cost of which may prove prohibitively high.

Careful attention should be paid to the notice period. Employees should negotiate a guaranteed period of employment, to ensure that they have sufficient time to settle and adjust. A long notice period should also give the employee adequate time to prepare future plans.

Details should not be left to chance. The relocation package should address not only the costs of shipping the family and possessions overseas but arrangements for repatriation.

If help is offered with items such as accommodation costs, school fees and air-fares, those items should be carefully documented to help avoid future disputes.

Employees should check the payment currency. Some currencies can be subject to violent fluctuations and even stable currencies can suffer. "Peter", a health service manager, who was sent to the US some years ago, was willing to be paid in US dollars. Concerned about currency fluctuations, he agreed, prior to departure, a rate of exchange for the duration of the assignment. It was fortunate for him as sterling plummeted weeks after his departure.

If the offer of employment is subject to any conditions, such as the granting of a work permit, employees should ensure the requirement is satisfied before tendering their resignation from their existing employment.

Provided the contract is governed by English law, ex-pats' contractual rights on dismissal are the same as those of their colleagues at home. The starting point for calculating damages, on dismissal without notice, in breach of contract, is a sum equal to the value of the net salary and fringe benefits that the employee would have received during the notice period.

However employees who habitually work overseas, will not, even if their contracts are governed by English law, acquire statutory protection against unfair dismissal. They may acquire some protection under the host country's laws, in addition to any rights in their contracts. The extent of those rights varies. Some European countries provide extensive safeguards for employees, while protection in the United States is limited.

If the worst should happen, provided the employee has a clearly negotiated contract, the additional stress of being dismissed overseas can be kept to a minimum.

Copies of all relevant legal documents, a concise summary of relevant events, and a clear statement of objectives should help any lawyer instructed to provide swift practical assistance.

A little forward thinking should prevent an overseas setback becoming a disastern

Ian Hunter is an employment law specialist with the City law firm Bird & Bird.

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