But today, labour issues are no longer just an afterthought and are much more centre stage – witness Rover, where the threatened £40m Tupe (Transfer of Undertakings (Protection of Employment) Regulations 1981) action for non-consultation with the workforce scuppered the Alchemy bid.
Add to this the effects of globalisation, with an increasing number of organisations employing a diverse labour force across a multiplicity of jurisdictions with the attendant cultural and harmonisation difficulties, and you can see how the layers of complexity in this area of law have multiplied.
The UK is just one piece of the puzzle. There has been an unprecedented surge in the number of major pieces of employment legislation in the past two years ranging across a variety of fields, including the new regulations on mass redundancies, whistle-blowing, data protection and interception of communications by employers. This is not to mention the Human Rights Act and European Works Council regulations.
Gone are the days when employees were an afterthought in mundane or complex transactions. Companies now consider employees to be as important as items on the balance sheet, referring to them on occasion as "human capital". With new practices, such as flexible working, part-time working, home or remote working, come new uncertainties. Not least of these derive from the increased use of technology with the attendant use and abuse issues which we have seen lately. Thanks to Europe, the shift in the UK is definitely towards a more "social" approach to employment. Government moves, together with the new legislation, are generally nudging the balance of power more in favour of employees.
However, the focus on social concerns in the UK and in Europe differs from the emphasis on economic or commercial considerations in other jurisdictions around the world – that is, a philosophy based on a belief in the intrinsic right of employers to run a flexible and dynamic workforce and to hire and fire according to levels of productivity. There are, of course, many shades of grey between these two ends of the human relations spectrum, which gives rise to new and significant challenges to an effective HR director of a multinational organisation operating at the global level.
Picture this – a global organisation operates across 20 or so jurisdictions. Of those, about half are based on a European "social" model, with the rest based broadly on the "economic/commercial model". A proper understanding of these issues by the HR director on the international board will significantly enhance the advice given to colleagues as they flex their management muscles to shift the workforce around the globe to make the most of the available business opportunities.
The pace of globalisation continues. This is the way of the future for employment law and related subjects such as immigration, which will also have a major impact on the global movement of personnel. The challenge for those who advise in this arena is to make judgement calls on the complex issues facing HR directors both to enhance their commercial success and to short-circuit potential cost escalations through some overview of the legal, cultural and commercial complexities of their role in the global organisation. The job spec has changed dramatically for them – and it has for us too.
Jessica Learmond-Criqui is head of employment and immigration at Fladgate Fielder. She is joining Altheimer & Gray in February.