Jack of all trades
29 July 2002
It is a boom time for UK employment lawyers. With a positive deluge of new employment legislation to keep them busy, there is abundant work for this section of the legal pro-fession.
For those with a litigation bent, the proliferation of tribunal claims more than offsets any perceived drop in High Court litigation caused by the Woolf reforms. For those who prefer corporate-type work, the growing importance of employment issues in corporate transactions and restructurings means that UK employment lawyers are unlikely to face redundancy themselves.
There are also golden opportunities for UK employment lawyers who are thinking of joining the London offices of US law firms, but the opportunities presented by a US law firm take the employment lawyer onto a different plain. A UK-qualified employment lawyer working for a US firm will have a much expanded role compared with that of their counterpart working in a UK firm. While they will still be doing all the bread and butter work of a UK employment solicitor - tribunal cases, High Court litigation, compromise agreements, employment contracts and staff handbooks, further skills and experience are essential to take on the challenge of working for a US or an international law firm.
While some US corporate clients are restructuring or downsizing their European interests, others are starting to show enthusiasm about investing in Europe again. Both categories of client call for strategic international commercial advice, not just from their corporate lawyers, but also from their labour or employment lawyer. Employment law issues are no longer just a bolt-on to commercial transactions. Employment lawyers dealing with international transactions are likely to be involved in a deal from the outset, and as employment costs now form such an important economic element in any acquisition or transaction, they are likely to be brought in at the heads-of-terms stage, helping to shape the nature of the transaction. It is an exciting challenge for employment lawyers to be able to play such a prominent role in international transactions, and a good grasp of basic M&A work is vital.
International employment lawyers also need to become a start-up business adviser. They are likely to be the initial port of call for a company wanting to set up in business in the UK or Europe, as the first step is often the hiring of the local manager. The lawyers need to have a working knowledge of the tax, regulatory and employment implications of starting up a company from scratch - registering for PAYE, finding a payroll agent etc. US clients expect their lawyers to be very closely involved in their business, more so than UK clients. Many US clients will view their lawyer as a trusted business adviser, as well as being an expert in their chosen legal field, and the lawyers will need to be proactive in anticipating the future needs of a new UK subsidiary or branch.
For the employment lawyer, being so closely involved in a client's business can lead to taking on the function of UK HR director for clients that have to operate their UK interests from afar. The lawyer may have to deal face to face with employees, carrying out consultation on behalf of an overseas employer, and deal with basic personnel issues such as the practicalities of returning a company car, interviewing clients' job candidates or arranging for the election of employee representatives. Interspersed with high-level strategic advice for international corporations, these practical matters will help keep any lawyer's feet firmly on the ground.
In order to advise US clients, the lawyer will need to acquire a grasp of the essentials of the US legal system, and in particular, US employment law across the different states so that they can understand why a US client sees an issue in a particular way, or perhaps fails to see the problem at all. The principles of the Acquired Rights Directive come to mind as one of the trickiest areas to get across to a US audience. The lawyer must be aware that the differences between employment law in California and, say, Arizona, may be considerable. Certain concepts in UK employment law, such as notice periods and unfair dismissal, can be alien to US HR directors. In addition to a working knowledge of US employment law, the lawyer will need to develop a general overview of European employment law. US clients and US lawyers can have a tendency to regard the UK as a one-stop resource centre for the rest of Europe and lawyers may often be called upon to give preliminary advice on how different issues may be treated in various European jurisdictions. They may even have to start further back and alert clients to the fact that there are considerable differences between European jurisdictions. Even if their firm has offices in other European countries, the UK employment lawyer can often become the mediator or go-between, filtering information and opinions for US clients or US general counsel who might need to assimilate a range of legal advice across Europe. This arises typically when dealing with the acquisition of assets in various European jurisdictions. First and foremost, the client may need careful direction to enable it to focus on the key issues.
Finally, one practical tip is for the lawyer to make sure that they know when the main public holidays occur across the US and the rest of Europe, not so much because they will need to account for these in dual employment contracts, but so that they can anticipate the frame of mind of their client. If the lawyer insists on a conference call, for example, on 2 September, their client will not thank them for disturbing his Labour Day break.
Sarah Linton is counsel and head of the UK employment practice at Bryan Cave